SZEGL v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 990

FEDERAL COURT OF AUSTRALIA

SZEGL v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 990

MIGRATION – no issue of principle

SZEGL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 574 OF 2005

CONTI J
23 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 574 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEGL APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	23 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant 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 574 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	CONTI J
DATE:	23 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the orders and reasons for judgment of a Federal Magistrate made and given on 24 March 2005, which dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 4 August 2004, and which affirmed an earlier decision of a delegate of the respondent Minister dated 28 April 2004 refusing the appellant a protection (Class XA) visa.

2. The Tribunal accepted that the appellant is a citizen of the People’s Republic of China.  He applied for a protection visa on 23 April 2004 after arriving in Australia on 15 April 2004.  In the statement annexed to his visa application, the appellant claimed that he had a well-founded fear of persecution on the basis of his religion.  The appellant claimed to have been a practising Christian since his baptism in 2000.  His statement recorded that he attended an underground church at a private residence at Xingzai each Sunday until 13 November 2002 when officials from the Public Security Bureau (‘PSB’) and the Foreign Affairs Bureau (‘FAB’) broke in to his church and arrested the participants, including the appellant, all of whom were detained for two months.  The appellant claimed that one of the priests in the congregation was assaulted whilst in custody. 

3. On 31 May 2004, the Tribunal wrote to the appellant recording receipt of the appellant’s application for review of the Minister’s delegate’s rejection of his visa application.  That letter invited the appellant to immediately send any documents, information or other evidence that he wanted the Tribunal to consider.  The Tribunal sent a second letter to the appellant on 7 June 2004 informing him that the Tribunal had considered the material before it in relation to the application but that without more could not make a decision in the appellant’s favour.  That letter also invited the appellant to a hearing scheduled for 2 July 2004 ‘to give oral evidence and present arguments in support of your claims’.  That letter warned the appellant that if he did not attend the hearing, the Tribunal could make a decision on the appellant’s case without further notice.  The appellant sent a response to that invitation which was received by the Tribunal on 1 July 2004.  The appellant declined the invitation to attend the hearing and the Tribunal proceeded to make a decision on the information before it. 

4. The Tribunal, in its brief reasons for decision, observed that the appellant’s claims were general and lacking in detail.  The Tribunal was not satisfied that the appellant was a genuine practitioner of underground Christianity, since he had not provided any evidence in support of his statement and had declined to testify orally to that effect.  Accordingly the Tribunal also found that the appellant had not been arrested and charged for participating in an illegal gathering, nor was it satisfied that he had been detained for a two-month period.  The Tribunal was thus unable to satisfy itself that the appellant had a well-founded fear of persecution upon his return to China for reasons of religion. 

5. Before the Federal Magistrate, the appellant relied upon several purported grounds of review.  The first was that the appellant ‘was deprived of the opportunity to explain my hard situation and impossibility to obtain documentation and written evidence’.  His Honour found that the appellant had been given an opportunity to attend a hearing of his claims but that he had declined to accept it.  The second limb of this claim was rationalised by the Federal Magistrate as a failure by the Tribunal to take into account relevant materials, namely the appellant’s difficulty in obtaining evidence.  The appellant had sworn an affidavit to the effect that he had telephoned the Tribunal informing them that it would be impossible for him to obtain the necessary documentation within the short period of time he had until the proposed hearing on 2 July 2004.  The Federal Magistrate found that no such phone call ever took place, relying on evidence from a district registrar of the Tribunal about how telephone enquiries are logged and the admission of the appellant made during the hearing that he had not personally made the phone call at all and he was not sure whether his ‘friend’ had indeed made it as the appellant had been promised.  His Honour found that the Tribunal did not deprive the appellant of a proper opportunity to put his case, relying on the repeated invitations extended to the appellant to provide further evidence and documentation and oral testimony. 

6. The third claim was put in the following terms by the appellant:

   ‘I also say that the respondents denied my involvement in Christian activities because of my inability to support my claim.  This is wrong because it was impossible for me to obtain such documentary evidence and keeping such sort of evidence in China will enable the authority to incriminate me.’

   The Federal Magistrate held that this was a ‘mischaracterisation’ of the Tribunal’s reasons, in that its decision was not due to the absence of written material or documentation but the absence of any material in support of his claims.  This disclosed no error on the Tribunal’s part since the appellant had been put on notice of the Tribunal’s need for supporting documentation and evidence but had chosen not to do anything about it. 

7. Finally the appellant claimed that the Tribunal had been denied natural justice.  This was similarly rejected by the Federal Magistrate for similar reasons.

8. The appellant’s notice of appeal contains the following purported grounds of appeal (read literally):

   ‘1. I was deprived of opportunity to explain my hard situation to obtain documents.

   2. RRT did not comply with s 425 of the Act.

   3. RRT constituted an absence of natural justice.’

9. The appellant did not provide any particularisation of those grounds, either per medium of written submissions (which the appellant failed to provide in spite of an order to do so), or in his oral submissions made during today’s hearing. At the hearing, the appellant, with the assistance of an interpreter, told the Court that the Minister had not listened to his ‘verbal argument’; that in Australia he had been attending religious activities every week; and that in China he had attended underground church services on Tuesdays and Wednesdays to avoid the authorities. In relation to his s 425 claim, the appellant submitted that the Tribunal had made some legal error in the manner in which it had invited him to a hearing which in effect deprived him of giving viva voce evidence. 

10. As was made clear in the reasons for judgment of the Federal Magistrate, the appellant was given every opportunity to explain his case.  Several letters were sent by the Tribunal to the appellant seeking to elicit further documentary evidence in support of his claims.  The appellant was also invited to a hearing during which he was told that he would be able to give evidence orally.  There is nothing to suggest that the appellant made any attempt to accept any of these offers, or that he made any attempt to provide the Tribunal was some information in support.  Accordingly, the first ground of appeal should be rejected.

11. There was no breach of s 425 of the Migration Act 1958 (Cth) (‘the Act’) committed by the Tribunal. The Tribunal sent the appellant an invitation to appear before the Tribunal to give evidence and present arguments in accordance with s 425(1). That invitation was sent in accordance with s 441 of the Act. Once the appellant indicated to the Tribunal that he would not be attending the hearing s 425(2)(b) had the effect of removing from the Tribunal’s responsibilities any further compliance with s 425(1). In accordance with s 425(3), the appellant had no entitlement to appear before the Tribunal. The Tribunal therefore complied with its obligations under s 425 and accordingly this ground must also be dismissed.

12. Finally the appellant provided no particularisation of his claim that the Tribunal had denied him natural justice and, like the Federal Magistrate, I cannot see how this claim arises in the circumstances of this case.  I also reject it.

13. The appellant has not been able to provide any reference to any facts or circumstances from the documentary material before me, or otherwise, as supporting in any realistic or detailed way any of the aforementioned grounds of appeal.  For the reasons that I have outlined above, I order that the appeal be dismissed and that the appellant must pay the Minister’s costs assessed at $2,500.00.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:            19 July 2005

The appellant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	23 June 2005
Date of Judgment:	23 June 2005