SZDWC v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1386

FEDERAL COURT OF AUSTRALIA

SZDWC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1386

SZDWC V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N747 OF 2005

BENNETT J
15 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 747 OF 2005

BETWEEN:	SZDWC APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	15 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed

2.   The appellant pay the respondent’s 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 747 OF 2005

BETWEEN:	SZDWC APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	BENNETT J
DATE:	15 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the Peoples Republic of China who claims a fear of persecution on the basis of his religion, Falun Gong. He was invited to attend a hearing to give oral evidence and present arguments before the Refugee Review Tribunal ('the Tribunal') at hearing to be held on 23 April 2004.  He responded to that invitation saying he did not wish to go to the hearing and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.

2. In his application for review of the decision of a delegate of the first respondent, that is his application to the Tribunal, the appellant set out a number of matters as to why he considered himself to be a refugee.  In particular, he stated that he was a Falun Gong member, that he began to practise Falun Gong in 1997, that he feared persecution by the Chinese government, that he had been arrested when he had organised some Falun Gong believers to gather at his home and had been sentenced to re-education to labour for one year.  Those matters were referred to in the Tribunal's reasons.

3. The Tribunal concluded that in view of the lack of detail provided to it, it could not be satisfied that the appellant is a Falun Gong practitioner or that he would seek to practise Falun Gong if returned to China.  It was not satisfied that the appellant had been detained or otherwise persecuted as a Falun Gong practitioner.

4. The Tribunal said that as it could not accept the appellant's claims on the facts, it could not be satisfied that he has a well founded fear of persecution for a Convention reason.

5. I am satisfied that the information on which the Tribunal relied in coming to its decision was information that came within section 424A(3)(b) of the Migration Act 1958 (Cth) ('the Act') and that the decisions of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and Al Shamry v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 110 FCR 27 have no application.

   Federal Magistrates’ Decision

6. On appeal to the Federal Magistrates' Court the appellant relied upon three grounds. First, that he belonged to a particular social group, Falun Gong. Second, that he feared persecution for the reasons as above in China. And the third was that he believed that his fear of persecution was well founded.

7. Federal Magistrate Mowbray dismissed the application on the ground that the appellant did not disclose a reviewable legal error.  His Honour noted that the Tribunal was faced with inadequate material provided by the appellant, which inadequacy was compounded by the failure of the appellant to attend the hearing as requested by the Tribunal.  His Honour said that it was clear that the Tribunal was unable to reach a favourable decision because of the unsatisfactory and deficient material placed before it by the appellant.  His Honour found that the conclusions reached by the Tribunal were reasonably open to it on the material that it had before it.

   Notice of Appeal

8. In his notice of appeal to this court and in an affidavit filed in support of that notice of appeal the appellant raises three matters.  The first is that he says he is a Falun Gong practitioner in China.  As a ground of appeal, that seeks merits review, which is outside the jurisdiction of this court.  The same can be said of the second ground and the third ground. The second ground is, ‘I face a risk of being jailed if I return to China.’ The third ground is, ‘I believe that my fear is well founded.’  The notice of appeal does not identify any error in the decision of Federal Magistrate Mowbray or jurisdictional error in the Tribunal's decision.

9. The appellant has appeared in person assisted by an interpreter.  I asked him what matters he could put in support of his appeal.  He said that he believed his application was reasonable.  That is not a matter for this court.  He said the Tribunal had not followed legal procedures but could give no particulars of such failure and I can find none.

10. At a directions hearing in this matter, by consent, I made orders that included an order that the appellant file and serve an amended notice of appeal and written submissions.  The appellant did not comply with those orders.

11. No jurisdictional error is apparent in any of the findings, nor in the procedures adopted by the Tribunal, nor do I see any error in the reasons for judgment of the Federal Magistrate. As the Federal Magistrate noted, correctly, in my view, it is not for the Tribunal to make out an applicant's case and the Tribunal is under no duty to make further inquiry or to obtain additional evidence. The Act imposes no obligation on the Tribunal to make positive findings either accepting or rejecting claims. In the absence of satisfaction that the applicant is a person to whom protection obligations are owed, the Tribunal is obliged to reject the application (VSAF v Minister for Immigration and Multicultural and Indigenous Affairs at [16]-[17]).

12. The appeal is dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett j.

Associate:

Dated:             15 September 2005

The Appellant appeared in person.
Counsel for the Respondent:	N. Wood
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 September 2005
Date of Judgment:	15 September 2005