SZDWZ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1112

FEDERAL COURT OF AUSTRALIA

SZDWZ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1112

MIGRATION – no issue of principle

SZDWZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 818 OF 2005

CONTI J
11 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 818 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDWZ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	11 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant is to pay the respondent’s costs assessed at $2,500.00.

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 818 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDWZ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	11 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The appellant’s claims and the Tribunal’s decision

1. This is an appeal from the reasons for judgment of Federal Magistrate Barnes given on 4 May 2005 that dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 13 May 2004.  The Tribunal affirmed the decision of a ministerial delegate that rejected the appellant’s application for a protection (Class XA) visa on 5 December 2003. 

2. The appellant is a citizen of the People’s Republic of China who arrived in Australia on 24 September 2003 on a transit visa that permitted the appellant to remain in Australia for one day from the date of each arrival.  The appellant lodged an application for a protection visa on 25 September 2003. 

3. In written statements contained in his application for a protection visa, the appellant claimed to fear arrest and imprisonment by the PSB, the local police and other government authorities upon his return to China from studying in Malaysia and New Zealand.  This was because of the activities in which he had engaged whilst residing in those countries, which was said to have been the practice of his catholic religious beliefs and his promotion of pro-democratic and anti-government ideologies through numerous speeches.  His passport contained two long-stay visas for Malaysia and New Zealand.  The appellant claimed that he could no longer travel back to China because he would be detained and interrogated, as other members of his ‘group’ had experienced.  The appellant also claimed that he could not return back to Malaysia and New Zealand because Chinese secret agents would identify him there and kidnap him.  The appellant had also indicated on the application form, in answer to the question ‘Is your travel document valid for return to your home country?’, that it was but that ‘it has been blacklisted’. 

4. The appellant’s statement in support of his application for review stated that he disagreed with the ministerial delegate’s decision to refuse his application and that he would provide the Tribunal with a supporting statement once it was translated.  The appellant also indicated that he wished to appear for a hearing in ‘due course’. 

5. The applicant claimed to have left China legally through Beijing airport in February 2003 on a passport issued in his own name which was issued in September 2001 in Shanxi and was valid until September 2006.  The transit visa on which he entered Australia was issued in Auckland in September 2003. 

6. No further information was provided by the appellant to the Tribunal about his claims, and the appellant did not attend his scheduled hearing, in spite of invitations being sent to both his address and to his authorised recipient.  The Tribunal’s reasons for decision outline the steps that were taken by the Tribunal to ascertain whether the appellant would attend the scheduled hearing, which included a phone call to his advisor and authorised recipient on 5^th and 7^th April 2004 (9 and 7 days respectively prior to the hearing). The Tribunal was informed that messages had been left by the advisor with the appellant but that they had not been replied to. When the appellant did not appear on the day and time and place where he was scheduled to appear, the Tribunal proceeded to make its decision on the review without taking any further action to enable the appellant to provide arguments or appear before it, as it was entitled to do under s 426A of the Migration Act 1958 (Cth) (‘the Act’).

7. The Tribunal accepted that the appellant was a Chinese national.  However it was not satisfied that the appellant had faced persecution in China by reason of his religion, nor was the Tribunal satisfied that he faced a real risk of persecution by reason of his catholicism upon his return to China.  The basis for that finding was the vague and generalised way in which the appellant described his claim, in particular, in relation to what was likely to happen to him were he to return to China, and to how he practised catholicism and why that was likely to lead to adverse attention from authorities.  The Tribunal found that it was unable to establish the facts of the appellant’s case.  In light of the entire lack of detail of the appellant’s other claims, the Tribunal reached a similar conclusion.

   The appellant’s application to the Federal Magistrates Court for review of the Tribunal’s decision and the grounds raised in relation thereto

8. The appellant’s grounds for review contained in his amended application filed in the Federal Magistrates Court on 18 April 2005 were in the following terms (read literally):

   ‘1. The Tribunal misconstrued and misapplied the law concerning its determination.  I was unable to attend the hearing due to serious illness.  The fact was not taken into consideration when the refusal decision was made by the Member.

   2. Many of my important claims were not considered and assessed carefully when the decision was made by RRT.

   3. The nature of refugee claims involves risky factors when hard evidence was to be transferred from China to Australia.  When hard evidence was not yet available, I should be given some opportunities and benefits of doubts and my written and oral claims should be treated as evidence and be given sufficient weight.

   4. Prior to last directions hearing at the Federal Magistrates Court, the Respondent's solicitor failed to notify me properly by serving me at my address for service.  My medicals certificates were not taken into account.

   5. I need time to engage a proper solicitor to prepare for the hearing on 4 May 2005.  I have not yet received any free legal advice from the lawyer appointed or recommended by the Court.  This is unfair to me.  I await an appointment.  I am not a legally trained person.  I DO need legal advice to prepare legal documents.’

9. In relation to the first ground, the Federal Magistrate observed the absence of any evidence that the appellant had made any attempt to notify the Tribunal of his alleged illness.  Furthermore, her Honour pointed out that there was no evidence provided to the Court suggestive of any illness suffered by the appellant.  In light of those matters and the circumstances leading up to the scheduled hearing (which appear in the Tribunal’s reasons for judgment which I essayed above), the Federal Magistrate found that the appellant’s failure to attend the hearing did not establish any error on the part of the Tribunal.

10. The Federal Magistrate rejected the second ground because the appellant was not able to specify which of his claims (if any) were not considered by the Tribunal, because he did not file any written submissions, and because he did not accept the Federal Magistrate’s offer to make oral submissions in relation to that ground.  Her Honour also observed that it was not apparent from the material before her that the Tribunal had failed to consider any of the appellant’s claims, pointing out the Tribunal’s finding that it had found the appellant’s claims to be vague and generalised. 

11. In relation to the third ground the Federal Magistrate found that this was not made out by the appellant because he had chosen not to attend the appointed hearing before the Tribunal, and because the appellant had indicated nothing to suggest that he would provide further information in support of his claims. The Federal Magistrate emphasised the absence of any attempt by the appellant to contact the Tribunal any further about his indication to provide a further statement once it was translated. Her Honour further found that in light of the appellant having the assistance of a registered migration agent and the Tribunal’s recorded correspondence leading up to the scheduled hearing to which he was invited and in relation to which he was requested to provide further documentation in support of his claims, the Tribunal was entitled to determine the review in his absence, pursuant to s 426A of the Act.

12. In respect of the other grounds, the Federal Magistrate found that they did not disclose jurisdictional error.  Accordingly, Barnes FM dismissed the appellant’s application for review with costs.

    The present appeal

13. The appellant’s notice of appeal, filed on 25 May 2005, contained the following grounds (read literally):

    ‘1. The matter was dismissed despite the fact that I did file an “Amended Application”.

    2. I have been seeking independent legal advice from solicitors and I wish to have an opportunity to present my case properly.’

14. No written submissions were filed by the appellant in support of those purported grounds of appeal, however he also filed an affidavit on 25 May 2005 which was in the following terms (again, read literally):

    ‘1. I did file an amended application.

    2. I did not file written submissions because I was discussing details with my then potential solicitor

    3. Although it is not a jurisdictional that I needed time to engage a proper solicitor, yet a proper solicitor will be able to identify jurisdictional errors on my behalf.

    4. The RRT member did make errors when deciding my application. 

    5. The appeal at the Federal Magistrates Court should not be discussed.

    6. The Full Court of three judges as I believe will reassess this case more fairly.

    7. My medical certificates should be taken into consideration when a decision is made.’

15. No further explanation or particularity of those grounds was provided to the Court, since the appellant did not attend the hearing of the appeal.  Pursuant to O 52 r 39A(1)(d) of the Federal Court Rules, I proceeded to hear the appeal in the appellant’s absence. 

16. The Minister submitted that the appellant was unable to demonstrate any error in the Federal Magistrate’s reasons for judgment and furthermore that the Tribunal had not fallen into jurisdictional error in assessing the appellant’s claims, such as they were, in the manner it did, since it complied with ss 425A (invitation to hearing), 426A (conducting a hearing in the absence of the review applicant) and 441A(4) (sending documents through pre-paid post) of the Act. I would add that none of the grounds adduced by the appellant are in any event suggestive of jurisdictional error on the part of the Tribunal. The grounds are overly generalised and unparticularised. I am unable to find any error of law in the Federal Magistrate’s reasons and I adopt the Minister’s submission that the Tribunal complied with the statutory requirements relevantly applicable in the Act.

17. In those circumstances the appeal must be dismissed and I order the appellant to pay the respondent’s costs assessed at $2500.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             12 August 2005

The appellant did not appear
Counsel for the Respondent:	J Mitchell
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	11 August 2005
Date of Judgment:	11 August 2005