SZEBH v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 350

FEDERAL COURT OF AUSTRALIA

SZEBH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 350

MIGRATION – No point of principle

SZEBH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1833 OF 2004

MOORE J
8 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1833 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEBH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	8 APRIL 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 1833 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEBH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	8 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 22 November 2004 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision not to grant the appellant a protection visa. 

2. The appellant arrived in Australia on 15 February 2004 and lodged an application for a protection visa on 25 February 2004.  A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the visa on 4 March 2004.  The appellant applied for review of that decision by the Tribunal on 7 April 2004.  The Tribunal affirmed the decision of the delegate on 31 May 2004.  The appellant applied to the Federal Magistrate for review of the Tribunal's decision.

   Claims and evidence

3. The appellant is a citizen of the People's Republic of China.  She claimed to fear persecution because she is a Falun Gong practitioner.  She has been a Falun Gong practitioner since 1998.  She and her husband were detained in 1999 for 15 days because of her practice of Falun Gong.  She was released after her family bribed a police officer and she paid a fine.  In July 2003, the police broke into her house and confiscated books and conducted surveillance of her until she was arrested on 10 August 2003 and was jailed for two months.  She then obtained a passport and visa and left China in order to avoid being placed in jail. 

   The Tribunal's decision

4. In its reasons for decision, the Tribunal noted the appellant had given oral evidence to the Tribunal on 27 May 2004. This is almost certainly incorrect as one of the appellant's complaints was that she never had the opportunity to give oral evidence to the Tribunal. Indeed in its decision the Tribunal noted that on 22 April 2004, the Tribunal wrote to the appellant, informing her it was unable to make a favourable decision on the papers and inviting her to attend an oral hearing on 28 May 2004. This date is wrong as the letter itself speaks of a hearing on 27 May 2004. The Tribunal indicated in its reasons that as the appellant had not attended the hearing it had proceeded to determine the application on the papers under s 426A of the Migration Act 1958 (Cth) ("the Act").

5. On the material before it, the Tribunal was not satisfied the appellant had faced persecution by reason of her practice of Falun Gong or that she faced a real chance of persecution if she returned to China.  The Tribunal noted the appellant had not provided any details of her claims other than vague and generalised assertions of what had happened to her and what was likely to happen to her on her return.  The Tribunal did not accept that the appellant was a member or practitioner of Falun Gong or that she was arrested, detained and mistreated or that she had to arrange for her escape from China to avoid further detention. 

   The Federal Magistrate's judgment

6. Before the Federal Magistrate, the appellant gave evidence that she never received the invitation to attend the hearing because she had moved without telling the Tribunal. She also said that she was ill at the time and was not told of the invitation to attend a hearing by the person responsible for the PO box that was her mailing address. The Federal Magistrate was prepared to assume that inadvertently, she had not been given an opportunity to attend the Tribunal hearing. Nonetheless his Honour found that the Tribunal had followed the procedures for giving the appellant notice of a hearing under the Act and that these were exhaustive of natural justice in relation to the matter.

7. The grounds of review before the Federal Magistrate were:

   1.I believe that I meet the refugee criteria

   2.I would face a risk of being jailed if I go back to my original country

   3.I face the risk of being jailed because I belong to a particular social group – Falun Gong

   4.My fear is well-founded because I have been arrested by the Chinese Government

8. The appellant did not file an amended application or written submissions.  At the hearing before the Federal Magistrate she recounted her reasons for her belief that she met the definition of a refugee and would face arrest if she returned to China.  The Federal Magistrate noted that it was not his function to decide whether the appellant was a refugee and his Honour found that the Tribunal had made no error of law and no jurisdictional error.  His Honour dismissed the application.

   The appeal and its disposition

9. The grounds in the notice of appeal are set out below:

   a)I MEET THE REFUGEE CRITERIA.

   b)I REALLY FACE A RISK OF BEING JAILED IF I RETURN TO CHINA BECAUSE I AM A FALUN GONG PRACTITIONER.

10. The appellant repeated in oral submissions her complaint about not being given an opportunity to attend the hearing. In my opinion, the Federal Magistrate was entitled to conclude that the Tribunal had acted in conformity with the provisions of the Act concerning notification and hearing. The combined effect of ss 425A and 441A is that the Tribunal can give notice in the way it did and because of s 422B it cannot now be said that the appellant was denied procedural fairness. Apart from this point, the appellant seeks to canvass the correctness of the Tribunal's decision on the merits. This Court has no jurisdiction to do so.

11. The appeal should be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             8 April 2005

The Appellant appeared in person.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	15 March 2005
Date of Judgment:	8 April 2005