SZEBT v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1384

FEDERAL COURT OF AUSTRALIA

SZEBT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1384

SZEBT V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N1881 OF 2004

BENNETT J
14 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1881 OF 2004

BETWEEN:	SZEBT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	14 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 1881 OF 2004

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

JUDGE:	BENNETT J
DATE:	14 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People's Republic of China claiming fear of persecution on the basis of religion.  The appellant maintains that he was a Falun Gong practitioner and had been interrogated by the police. 

2. The appeal from the decision of the Refugee Review Tribunal (‘the Tribunal’) was heard by Federal Magistrate Nicholls.  The appellant essentially relied on two grounds before his Honour.  First, that the Tribunal was biased against him.  Second, that the Tribunal did not give him a proper opportunity to explain his application to the Tribunal.  No proper particulars were provided for either ground.  Nicholls FM rejected both grounds.  His Honour found that the appellant had not brought any evidence to show bias or even apprehension of bias and held that there was no basis in the Tribunal's decision supporting any such assertion.

3. His Honour also held that there was no evidence before him to show that the appellant was denied the opportunity to put forward any further material in support of his claim or any explanations. To the extent that the application before him generally raised a concern of a breach of the principles of procedural fairness, his Honour noted that section 422B of the Migration Act 1958 (Cth) (‘the Act’) operates to make Division 4 Part 7 of the Act an exhaustive statement of the requirements of natural justice in relation to the matters it deals with. His Honour considered there was nothing in the material put forward by the appellant or in any other material before him that demonstrated any failure to comply with the provisions of the Act in this regard, nor for that matter did his Honour find any breach of the common law rules of procedural fairness.

   Notice of Appeal

4. The appellant filed an amended notice of appeal.  The grounds upon which he relies are as follows:

   ‘That [the Tribunal] decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.
   The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to China based on the member of ‘Falun Gong’.  The Tribunal failed to exercise its jurisdiction as it failed to refer to any independent information.’  
   (Errors included)

5. No written submissions were supplied by the appellant in support of his appeal.  No error on the part of the Federal Magistrate or any jurisdictional error on the part of the Tribunal is disclosed on the amended notice of appeal.  They are not the grounds of appeal relied upon before the Federal Magistrate. 

6. It is difficult to make sense of the first ground.  As I read the Tribunal's decision, the Tribunal came to its own view of the appellant's claims and did not refer in its findings and reasons to the decision of a delegate of the first respondent.  To the extent that the appellant seeks to rely upon 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, they are not relevant to this case.

7. The Tribunal referred to the appellant's claim that he face persecution because of his belief in and practice of Falun Gong.  That claim was made by the appellant in the application to the Tribunal.  In any event, at the hearing before the Tribunal, the appellant confirmed the information provided in the protection visa application. As I read the Tribunal's reference to that Act it would seem that the appellant did this "in chief” (NAZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744). The information comes within section 424A(3)(b) of the Act, so the requirement that the appellant be given particulars of that information in writing does not apply. The Tribunal discussed this claim with the appellant at the hearing, put a number of matters to him about Falun Gong and told the appellant that it did not believe his account. There was no error in this approach.

8. The appellant was invited to attend a hearing and given the opportunity to give oral evidence and answer questions put to him at the hearing, including those adverse to his claim.  Information put to the appellant included country information that came within section 424A(3)(a).  The Tribunal simply did not accept from the appellant's answers that the appellant is or was a genuinely committed practitioner of Falun Gong. 

9. The second ground is not particularised.  It may go to merits review which does not raise a jurisdictional error.  The Tribunal did consider independent information to which it referred as it was entitled to do.

10. The appellant appeared in person assisted by an interpreter.  When asked what he wished to say in support of his appeal, the appellant said that the Tribunal made a mistake, but that he did not know what that mistake was.  He said that he just wanted to stay in Australia a bit longer.  I can see no error in the decision of the Federal Magistrate, nor any jurisdictional error on the part of the Tribunal. 

11. It follows that the appeal must 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 Bennett.

Associate:

Dated:             14 September 2005

The appellant appeared in person.

Counsel for the Respondent:	A McInerney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	14 September 2005
Date of Judgment:	14 September 2005