SZDUQ v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1055
•1 AUGUST 2005
FEDERAL COURT OF AUSTRALIA
SZDUQ v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1055
SZDUQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 640 OF 2005STONE J
1 AUGUST 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 640 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZDUQ
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
STONE J
DATE OF ORDER:
1 AUGUST 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 640 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZDUQ
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
STONE J
DATE:
1 AUGUST 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 8 April 2005 a Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) in which the Tribunal refused to grant the appellant a Protection (Class XA) visa.
BACKGROUND
The appellant is a citizen of the People’s Republic of China. He first arrived in Australia on 22 October 2003 and departed for New Zealand on 24 October 2003. The appellant re-entered Australia on 27 October 2003 and lodged an application for a protection visa on 4 November 2003.
In his application for a protection visa, the appellant claimed he was persecuted in China on account of his political opinion and gave the following account of his experiences in China. From 1980 until 2000 he worked for a construction company where he was ‘in charge’. The company owed him money, said to be 200,000 yuan and when he was not paid he went to the company’s head office asking for his money. The company called the police, who refused to listen to his reason for being there and put him in a detention centre. The appellant wrote to the central Government to report his mistreatment, but nothing was done.
The appellant claimed that as a result of the Government’s inaction he wrote statements such as ‘Government not fair’ on walls. This was seen by ‘some people’ who reported this to police. The appellant told the police that he thought the Government was not fair and did not help ordinary citizens and that there were thousands of people who were forced into unemployment without any Government assistance. The appellant claimed that because of these statements he was put in detention again, this time for three days. He was told not to speak out in any way that would damage the reputation of the Chinese Government.
After being released from detention on this second occasion the company dismissed him. Around the same time his wife also lost her job. The appellant claimed that there were a lot of people in this situation and he organised them to sign a statement about the unfair treatment and sent the statement to the central Government. The appellant claimed that in China he had no freedom to speak, no ‘human freedom’ and no freedom to criticise the Government, and because of this he came to Australia. He stated that if forced to return to China he would be put in prison.
On 17 December 2003, the appellant lodged an application for review of the delegate’s decision with the Tribunal. The application for review recorded that the appellant was represented by an immigration advisor who was also his Authorised Recipient of correspondence in relation to the application for review.
By letter dated 1 March 2004, the Tribunal wrote to the appellant at the address recorded on his application for review to the Tribunal. It advised the appellant that the Tribunal was unable to make a decision favourable to him on the basis of the information presently before it and invited him to a hearing before the Tribunal on 22 April 2004. A copy of this letter was also sent to the appellant’s Authorised Recipient. Attached was a Response to Hearing Invitation form. The letter sent to the appellant’s address was registered and was subsequently returned to the Tribunal as ‘unclaimed’.
On 15 April 2004, the Tribunal received a Response to Hearing Invitation form. In its reasons, the Tribunal notes that this form was received from the appellant’s immigration advisor. The form, apparently signed by the appellant, indicated that the appellant did not want to come to the hearing before the Tribunal and consented to the Tribunal proceeding to make a decision on the application for review without taking any further action to allow or enable the appellant to appear before it. The Tribunal therefore made a decision without seeking further evidence from the appellant.
THE TRIBUNAL’S REASONS
The Tribunal had significant difficulties with the claims made by the appellant including that they were short on plausible detail. In particular, it noted:
(a)his claim to have been unemployed at the time he came to Australia was at best an unsupported assertion; he had not explained how, as an unemployed person, he could possibly have obtained a visitor’s visa to enter the country;
(b)no account was provided as to how he could afford to come to Australia, and New Zealand, as an unemployed person;
(c)the fact that appellant enjoyed the freedom of movement to leave China in 2003;
(d)his complaint was based on a financial grievance and that it was difficult to see how this complaint could be construed as an act of political dissidence;
(e)the basis of his claim that the company owed him 200,000 yuan was not explained;
(f)there was no explanation as to why the police sided with the company to such an extent that they jailed the appellant;
(g)he lived at large in China for three years after these events apparently without difficulty;
While the Tribunal accepted that the appellant had worked for the construction company from 1980 until 2000, it did not accept that his employment ended there. On the scant evidence before it, the Tribunal was not satisfied that the appellant had a grievance that involved the police in the way he claimed. It did not accept that he had been detained in China or that he faced detention on return. It found that the appellant’s freedom of movement since 2000 was ‘strong evidence of an unremarkable relationship’ with the authorities in China, at least, ‘as far as the present jurisdiction is concerned’.
The Tribunal drew negative inferences from the fact that the appellant did not seek protection when he first came to Australia on 22 October 2002 or in New Zealand in the three days he was there. It stated:
‘In fact, his delay in applying for protection and the scant attention he has paid to detail leaves the Tribunal with the impression that his application is the product of afterthought.’
The Tribunal said that this impression was reinforced by the appellant’s silence on review before the Tribunal. Consequently, the Tribunal was not satisfied that the appellant faced a real chance of Convention-based persecution in China and affirmed the delegate’s decision.
THE FEDERAL MAGISTRATES COURT
In an amended application for review under s 39B of the Judiciary Act 1903 (Cth), the appellant pressed two grounds of review; (a) that there was no evidence to justify the making of the Tribunal’s decision; and (b) that the decision was induced by actual or apprehended bias. His Honour rejected both grounds of review and dismissed the application, taking the view that both were really an attempt to cavil with the Tribunal’s findings on the facts.
THIS APPEAL
On 26 April 2005, the appellant filed a notice of appeal from the judgment of the Federal Magistrate. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), Acting Chief Justice Wilcox has determined that the appeal be heard and determined by a single Judge.
The notice of appeal and accompanying affidavit are of limited assistance. The grounds of appeal merely repeat those claims raised before the Federal Magistrate, with an additional claim that this Honour did not consider his application or simply relied on the respondent’s submissions. At the hearing of this appeal the appellant, who appeared for himself with the assistance of an interpreter, made no submissions other than to take issue with the Tribunal and the Federal Magistrate for not accepting his claim. Although I explained the limited jurisdiction of this Court and the Federal Magistrates Court in these matters, the appellant was unable to assist.
No evidence
I agree with the Federal Magistrate that this was not a case in which there was no evidence to support the Tribunal’s decision. It was for the appellant to put forward evidence and arguments he wished to support his claim to have a well-founded fear of persecution on account of his political opinion; see Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gummow and Hayne JJ at [187]. In his application for a protection visa, the appellant provided limited material that lacked detail. He chose not to supplement this with either further evidence or arguments before the Tribunal. As such, the Tribunal concluded that on the basis of this limited information it could not be satisfied that the appellant had a well-founded fear of persecution on account of his political opinion. There was no error in the Tribunal so doing.
Actual or apprehended bias
At the hearing of the appeal the appellant accepted that his allegation that the Tribunal was biased was in substance a complaint that the Tribunal did not accept the appellant’s claim. While it may in rare circumstances be possible to discern bias from the rejection of a claim, it would only be so in the case of a very strong claim which this is not. There is no evidence before the Court to suggest that the Tribunal approached the application for review with a closed mind. In addition, there is no evidence that would, in the circumstances of this case, lead a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias, to reasonably apprehend that the Tribunal would not bring an impartial mind to the resolution of the appellant’s application for review of the delegate’s decision: see Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32].
Federal Magistrate’s consideration
As to the third ground of appeal, it plainly has no merit. His Honour considered the two claims of jurisdictional error and rejected them. I can discern no error in his Honour’s reasons.
For these reasons the appeal must be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate:
Dated: 1 August 2005
The Appellant appeared on his own behalf Solicitor for the Respondent: Clayton Utz Date of Hearing: 1 August 2005 Date of Judgment: 1 August 2005
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