SZDZR v Minister for Immigration and Multicultural Affairs

[2006] FCA 545

FEDERAL COURT OF AUSTRALIA

SZDZR v Minister for Immigration and Multicultural Affairs [2006] FCA 545

SZDZR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR
NSD 2618 OF 2005

STONE J
10 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2618 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDZR
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

10 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs in the amount of $1800.

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 2618 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDZR
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

10 MAY 2006

WHERE MADE:

SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of China who claims to fear persecution from the Chinese authorities on account of his participation in the democratic movement in China and his practice of Falun Gong.  He arrived in Australia on 25 January 2004.  A delegate of the first respondent rejected the appellant’s application for a protection visa, a decision which was affirmed by the Refugee Review Tribunal.  The appellant now appeals from a judgment of Federal Magistrate Nicholls of 20 December 2005 dismissing an application for judicial review of the decision of the Tribunal. 

2. Although the appellant accepted the Tribunal’s invitation to appear before it, he did not attend the hearing of his application before the Tribunal.  The Tribunal proceeded, with the appellant’s consent, to consider the application in his absence and on the basis of the documentary evidence before it.  The Tribunal found that the appellant’s claims lacked detail in important respects.  In particular, the appellant did not provide details of the democratic movements with which he claimed to be involved, his role in the organisation of these movements, whether he was ever arrested or imprisoned in the 15 years following the Tiananmen Square massacre, the ‘mental torment’ he allegedly suffered or finally whether he experienced persecution as a result of his alleged practice of Falun Gong.  Accordingly, on the limited material before it, the Tribunal was not satisfied that the appellant had been involved in demonstrations or the organisation of political movements in 1989 and that even if he had been involved that he would remain of interest to the Chinese authorities or face a real chance of persecution because of his practice of Falun Gong. 

3. The Federal Magistrate summarised the appellant’s claims in the Federal Magistrates Court as:

   ‘1) The decision was made without sufficient evidence and there was no evidence to justify the decision.

   2) The Tribunal was biased.

   3) The Tribunal failed to consider the applicant’s claim in more detail.

   4) The Tribunal did not consider all the information provided.

   5) The Tribunal did not refer to information from any private sources about the political situation in China.

   6) The Tribunal’s consideration was based on a series of unsupported and unjustified assumptions.’

4. The Federal Magistrate found that the Tribunal acted in accordance with its statutory obligations in dealing with the appellant. His Honour held that the Tribunal did not commit jurisdictional error in proceeding pursuant to s 426A of the Migration Act1958 (Cth) (‘the Act’) in determining the appellant’s claims in his absence. His Honour noted that the legislative scheme requires the relevant decision-maker to be ‘satisfied’ that the appellant meets the definition of a refugee in the Convention before the relevant visa may be granted. In the absence of such satisfaction the Tribunal was obliged to refuse the application for review.

5. The Federal Magistrate found that the appellant’s contention that the Tribunal did not have any evidence to justify its conclusion showed a lack of understanding of the Tribunal’s task and was unsupported by the materials.  Similarly, the appellant’s claims that the Tribunal’s decision was affected by bias, was made ‘in a hurry’ without considering all of the relevant information, was based on unjustified assumptions and was unsupported by the material before the Federal Magistrate.  His Honour also found that there was no burden on the Tribunal to make the appellant’s case for him and no obligation to refer to independent country information.  Ultimately his Honour found no jurisdictional error in the Tribunal’s decision.

6. The grounds of review in the appellant’s notice of appeal filed on 22 December 2005 can be summarised as follows:

   1.   the Tribunal was biased;

   2.   the Tribunal failed to consider the probability that the appellant would be persecuted upon his return to China;

   3.   the Federal Magistrate did not consider the appellant’s case properly.

7. I agree with the Federal Magistrate that there is no evidence that the Tribunal’s decision was influenced in any way by bias, or that the decision was based upon ‘assumptions’ made by the Tribunal member. It seems clear that the Tribunal decision was based upon the documentary material before it. In the absence of any evidence from the appellant the Tribunal’s findings on this material were open to it and certainly do not disclose any prejudgment of the appellant’s application. There was no jurisdictional error in the Tribunal proceeding pursuant to s 426A of the Act to hear the matter in the absence of the appellant.

8. The Tribunal did not fail to consider the probability that the appellant would be persecuted upon his return to China.  The Tribunal’s conclusions about the appellant’s alleged participation in democratic movements and involvement with Falun Gong were directed towards this issue.  In light of this, the appellant’s second ground of appeal can only be seen as an impermissible attempt to re-agitate the merits of the Tribunal’s decision.

9. Finally, I regard the Federal Magistrate’s consideration of the appellant’s claims as appropriately comprehensive.  The appellant has not been able to identify a claim raised before the Federal Magistrate that was not addressed by his Honour and so this ground of appeal must be rejected.

10. Since the appellant is unrepresented, I have examined in detail both the Federal Magistrate’s decision and the decision of the Tribunal.  I can find no reviewable error in these decisions.  Accordingly the appeal must be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             18 May 2006

The Appellant appeared in person.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	10 May 2006
Date of Judgment:	10 May 2006