SZEGS v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1385

FEDERAL COURT OF AUSTRALIA

SZEGS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1385

SZEGS V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N398 OF 2005

BENNETT J
15 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 398 OF 2005

BETWEEN:	SZEGS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	15 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   that the appeal be dismissed

2.   that 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 398 OF 2005

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

JUDGE:	BENNETT J
DATE:	15 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People's Republic of China who claimed a fear of persecution on the basis of his religion, the Christian Shouters.  In his application for review to the Refugee Review Tribunal ('the Tribunal') the appellant included a statement in which he claimed to be a key member of Shouters.  He also said that some of the followers had been detained and were forced to disclose other followers names and asserted that he would be subject to persecution on his return to China. 

2. The Tribunal sent a letter to the appellant inviting him to attend a hearing to give oral evidence in support of his claims.  The Tribunal enclosed a form to be completed.  The appellant indicated on the form that he did not wish to attend a hearing and that he consented to a decision being made without his doing so.  The appellant returned the form to the Tribunal. 

3. In its decision the Tribunal stated that it was unable to be satisfied that the appellant is a Christian Shouter.  The Tribunal referred to the absence of supporting information to substantiate his claims.  The Tribunal's decision and the matters referred to in it, mirror the matters asserted by the appellant in his application to the Tribunal.   

   Federal Magistrate’s decision

4. The application for review to the Federal Magistrate alleged that the appellant was not given a proper opportunity to explain his case and that the Tribunal made 'jurisdiction mistakes' in saying that he was not a refugee. 

5. A document was tendered to Federal Magistrate Smith containing a further allegation that he applied to postpone a hearing date which was not approved.  Federal Magistrate Smith was satisfied that the Tribunal properly informed the appellant and his agent of a hearing time and that the appellant was given a reasonable opportunity to attend.  His Honour found the Tribunal followed all procedures required by the Migration Act 1958 (Cth) ('the Act') and rejected the claim that the appellant was not given a proper opportunity to explain himself.

6. His Honour could find no procedure under the Act required to be followed by the Tribunal which was not followed. His Honour found that there was no jurisdictional error on the part of the Tribunal.

   Notice of Appeal

7. In his amended notice to appeal in this court the appellant sets out six numbered paragraphs that purport to be grounds of the appeal.  At the hearing before me the appellant appeared in person assisted by an interpreter.  In response to a general question whether he had anything to say to court in support of his appeal the appellant referred to the fact that the Tribunal said that he was not a religious person.  When taken to his grounds of appeal one by one the appellant was unable to give any further details of those grounds of appeal with the exception of a statement that the Tribunal did not believe him and a reference to his personal inability to present his case. I took that not to refer to any matter referable to the Tribunal or indeed to the Federal Magistrates court but rather a reference to what he saw to be his own difficulties in presenting his case properly.

8. Ground 1:  'The Tribunal fell into jurisdictional error when considering my application for a protection visa.' 

   This contains a bare assertion that the Tribunal fell into jurisdictional error.  It does not identify any such error and therefore must be rejected.

9. Ground 2:  'The Tribunal failed to provide a rational and logical foundation for refusing my application.'

   The findings and reasons of the Tribunal indicate that it was not persuaded by the evidence which the appellant put before it.  The Tribunal drew attention to the lack of evidence from the appellant on the relevant aspects of his case and to the lack of supporting information.  The Tribunal's explanation of its view of the evidence before it constituted a rational or logical foundation for affirming the decision of the delegate of the first respondent.  I can see no error in the way in which the Tribunal approached this task.

10. There is no ground number 3.

11. Ground 4:  'The Tribunal did not provide me adequate particulars of the independent information.'

    The Tribunal made no reference to any country information in its reasons.  This ground of appeal is misconceived and must be rejected.

12. Ground 5:  'The Tribunal did not provide me an adequate opportunity to respond to the substance of the information.'

    As already set out above the Tribunal invited the appellant to a hearing which invitation he declined.  In the absence of any further particulars to explain this ground it must be rejected.

13. Ground 6:  'The Judge did not accept any of my argument at the Federal Magistrates Court and could not accept any of argument about the jurisdictional error with the [Tribunal].'

    Without further particulars it is hard to see how this ground amounts to more than a complaint that his case before the Federal Magistrate was unsuccessful.  No error has been shown on the part of the Federal Magistrate.  At [14] to [18] of his decision, Federal Magistrate Smith indicated that the matters raised by the appellant at the hearing comprised an unsubstantiated allegation about a request for an adjournment of the Tribunal hearing and explanations which the appellant might have given if he had attended a Tribunal hearing.  This did not constitute a basis for jurisdictional error on the part of the Tribunal and his Honour noted that the appellant had no further oral submissions to present there before his Honour.  This ground has not been established.

14. Ground 7:  'The application was refused by the Federal Magistrates Court at the date of hearing.'

    Again this ground does not particularise any error on the part of the Federal Magistrate and none is apparent. 

15. It should be clear from what I have already said with respect to the matters the subject of the application for review to the Tribunal that there is no issue in the present case that there has been any breach of section 424A of the Act. So that the problems that arise out of an application 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 are not relevant.

16. The appeal must be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             15 September 2005

The Appellant appeared in person.
Counsel for the Respondent:	A Carter
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	15 September 2005
Date of Judgment:	15 September 2005