SZEGD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 710

FEDERAL COURT OF AUSTRALIA

SZEGD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 710

SZEGD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 373 of 2005

BRANSON J
26 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 373 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEGD APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	26 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs fixed in the sum of $1800.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 373 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BRANSON J
DATE:	26 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 14 March 2005 the appellant filed a notice of appeal from a judgment of the Federal Magistrates Court given on 23 February 2005.  The Federal Magistrates Court dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal by its decision had affirmed a decision of a delegate of the respondent that the appellant is not entitled to a protection visa.

2. The appellant’s notice of appeal, under the heading ‘Grounds’, contains the following: 

   ‘a)The Respondent only considered the evidence which is not in favour of the applicant.

   b)        I really face a risk of being jailed if I return to China.’

3. On 12 April 2005 I ordered, amongst other things, that by 26 April 2005 the appellant file an amended notice of appeal.  I ordered that the amended notice of appeal disclose grounds of appeal against the decision of the Federal Magistrate.  I also ordered the appellant to file and serve written submissions seven working days prior to the hearing date.  Subject to any contrary direction of the Chief Justice, I listed the matter for hearing at 2:15 pm on 26 May 2005 (ie today).

4. The appellant has not filed an amended notice of appeal.  Nor has he filed written submissions.  Nonetheless, I have allowed the appellant to address the Court in support of his appeal.  In doing so he has simply reasserted that he fears persecution in the People’s Republic of China because he is a Falun Gong practitioner.  He has advanced no criticisms of the decision of the Federal Magistrate. 

5. The appellant did not respond to an invitation sent to him by the Tribunal to attend a Tribunal hearing and did not attend the hearing. He told the Federal Magistrate that he forgot the time and date to attend the Tribunal hearing. Today he has told me that he did not attend the Tribunal hearing because of language difficulties and his inability to retain a lawyer. It is not necessary for me to determine why the appellant did not attend the Tribunal hearing. Section 426A of the Migration Act 1958 (Cth) authorised the Tribunal in the circumstances to determine the appellant’s application without giving him a further chance to be heard.

6. The Tribunal, in its written reasons for decision, observed the following:

   ‘The applicant has made a series of generalised claims that are lacking in important details.  In particular, the applicant has not provided details relating to his Falun Gong practice.  He has merely asserted that he is a Falun Gong practitioner.  The applicant has not provided any corroborative evidence of the alleged arrests and detention.  He has not attended a hearing and the Tribunal has no explanation for the applicant’s lack of attendance.  The Tribunal is satisfied that the applicant has been given a proper opportunity to support his application both at the primary level as well as at the review stage.

   Without further details, corroborative evidence and without having had the opportunity to explore the claims with the applicant at the hearing, the Tribunal cannot be satisfied that the applicant is a Falun Gong practitioner, nor can the Tribunal be satisfied that he has ever been arrested or detained or had suffered any harm.  For the same reasons, the Tribunal cannot be satisfied that the applicant had to pay a bribe in order to come to Australia.

   On the basis of the available information, the Tribunal cannot be satisfied that there is a real chance of Convention‑related harm occurring to the applicant in the reasonably foreseeable future.  Therefore, the Tribunal cannot be satisfied that the applicant has a well‑founded fear of persecution for a Convention related reason.’

7. Before the Federal Magistrates Court the appellant did not identify with particularity any ground of judicial review of the decision of the Tribunal.  He did not comply with a direction that required him to file an amended application.  It seems that the appellant adopted before the Federal Magistrate's Court the same course that he has adopted before this Court today; he pleaded to be relieved from being required to return to China because of his fear of persecution in that country.  The Federal Magistrate was not able to identify error in the procedure followed by the Tribunal or in its reasoning.

8. Before this Court, the appellant has not identified any error affecting the judgment of the Federal Magistrates Court.  Nor am I able to do so.  In the circumstances this appeal must be dismissed.  There will be an order that the appellant pay the respondent’s costs fixed in the sum of $1800.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             1 June 2005

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the Respondent:	J Bautista
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	26 May 2005
Date of Judgment:	26 May 2005