SZEIB v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1697
•17 NOVEMBER 2005
FEDERAL COURT OF AUSTRALIA
SZEIB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1697
SZEIB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1457 OF 2005
GRAHAM J
17 NOVEMBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1457 OF 2005
BETWEEN:
SZEIB
APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
GRAHAM J
DATE OF ORDER:
17 NOVEMBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent Minister'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 1457 OF 2005
BETWEEN:
SZEIB
APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
GRAHAM J
DATE:
17 NOVEMBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
What is presently before the Court is an appeal from a decision of a Federal Magistrate handed down on 5 August 2005. This appeal was listed for hearing before me at 2.15pm today. The Appellant has not appeared. Her name has been called three times outside the court, or more accurately the name by which she is known for the purpose of these proceedings, namely SZEIB. Notwithstanding that her name has been called three times, she has not appeared.
The Appellant was born in Fujian in the People's Republic of China on 25 December 1962. On 17 October 2003, she secured a Chinese passport and on 17 February 2004 an Australian visitor's visa was issued to her in Guangzhou.
On 7 March 2004, she arrived in Australia. On 5 April 2004, she lodged an application for a Protection (Class XA) Visa which attached to it a two page typed document which recorded her husband's reasons as to why he should be afforded a protection visa. There are references in the annexure to "my wife and I" which I understand to be references to the Appellant and her husband.
On 15 April 2004, the Minister's delegate decided that the application for a protection visa should be refused. On 19 May 2004, the Appellant applied for a review of the Minister's delegate's decision to the Refugee Review Tribunal (“the Tribunal”).
In the application for review, the appellant provided the following reasons for her application:
“I am from Long Tian Fu Qing and a member ‘shouters’. The Chinese government banned ‘Shouters’ in 1996 because of its close relationship with overseas Churches. I was a key member of the church. Worrying about my safety I left China to come to Australia for protection. Some of the followers have been detained and were forced to disclose other followers's names. I would be subjected to persecution on my return to China. I hope that my application can be reconsidered at RRT.”
On 3 June 2004, the Tribunal wrote to the Appellant indicating that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. The Tribunal invited her to come to a hearing to give oral evidence and present arguments in support of her claims. It was indicated that she could also ask the Tribunal to obtain oral evidence from other persons. The specified time for the hearing was 1pm on Wednesday 30 June 2004. On 28 June 2004, the Tribunal received a "response to hearing invitation" dated 17 June 2004, which was apparently signed on behalf of the Appellant, in which it was indicated that the Appellant did not want to come to a hearing.
On 30 July 2004 the Tribunal reached its decision, and on 2 August 2004 it wrote to the Appellant indicating that the decision would be handed down at 2.30pm on 19 August 2004. On that day, the Tribunal wrote to the Appellant indicating that it had decided that the Appellant was not entitled to a protection visa. A copy of the decision and reasons was attached to that letter.
The Tribunal's reasons recorded that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is "well founded" or that it is for the reason claimed. The Tribunal indicated that it remains for an Applicant before it to establish all of the statutory elements.
The Tribunal was unable to be satisfied that the Appellant was a Christian Shouter, as she had provided no supporting evidence to substantiate her claims that she was a Shouter or that she was practising her religion in Australia. The Tribunal noted that the Appellant had decided not to attend the hearing where she would have been able to provide evidence of her religious belief and to give evidence in support of her claims that her group was persecuted and harassed in China. Thus, the Tribunal was not satisfied that the Appellant was a leading member of the Shouters, as she had claimed, and was not satisfied that the Appellant had a well-founded fear of persecution within the meaning of the Convention. Accordingly, the Tribunal affirmed the decision of the Minister's delegate not to grant a protection visa.
On 3 September 2004, the Appellant filed an application in the Federal Magistrates Court of Australia seeking the issue of constitutional writs. In that application, she claimed that the decision made by the Tribunal should be set aside and that her case should be sent back for reconsideration. As it transpires, the Tribunal had not been made a party to the proceedings.
The grounds for the Appellant's application were expressed to be:
“1.The Tribunal officer made mistakes when considering my application. I was not given a proper opportunity to explain my case.
2.The Tribunal was wrong to find I was not a refugee. The Tribunal made mistakes in saying I was not a refugee.”
In circumstances where the Appellant elected not to appear before the Tribunal, it is difficult to understand how she could have advanced as a ground for her application for the issue of constitutional writs that she was not given a proper opportunity to explain her case.
On 1 December 2004, the Appellant filed an amended application in the Federal Magistrates Court. This included an allegation that the Tribunal did not give her a proper opportunity to explain herself and that the Tribunal had bias against her. It also alleged that the Tribunal had made "jurisdiction mistakes". It is unnecessary for present purposes to set out in detail the terms of the amended application.
On 25 July 2005, the learned Federal Magistrate before whom the matter came decided the matter. The formal orders of the Federal Magistrates Court of 5 August 2005 were that:-
“(1)The Amended Application filed 1 December 2004 is hereby dismissed;
(2)The Applicant, pay the Respondent's costs in the amount of $4000;
(3)The Applicant pay the costs in accordance with Order 2 within 28 days unless otherwise agreed.”
On 19 August 2005, the Appellant swore an affidavit in support of an appeal to this court, and a notice of appeal was filed on 22 August 2005. That notice of appeal included as grounds the following:
“2.My application for a protection visa should be reassessed at RRT. There is jurisdiction error when the Tribunal officer considered my application.
3.I explained the grounds for my review and pointed out the error made by RRT. The judge did not take into account the points and refused my application.”
The affidavit in support of the notice of appeal included a statement:
“It was all because of the officer's bias against me and therefore could not consider my application any further. I attended the hearing and presented my argument.”
This statement is somewhat difficult to understand. It seems clear that the “officer” referred to is the Tribunal member who constituted the Tribunal for the purpose of dealing with the Appellant's application for review. The statement “I attended the hearing and presented my argument” is difficult to comprehend if it is intended to relate to what transpired before the Tribunal. It may be that it was intended as a reference to what occurred before the Federal Magistrate, but which should have occurred before the Tribunal.
Mr Lloyd of counsel who appears for the Minister asks that the court proceed with the hearing of the appeal generally, even though the Appellant has not appeared after the matter was called on for hearing. In accordance with Order 52 rule 38A(1)(d) of the Federal Court Rules, it seems to me entirely appropriate that this course should be followed when on the face of the material before the Court the appeal is hopeless.
No jurisdictional error has been pointed to on the part of the Tribunal and the Appellant ought not now be permitted to advance a case which she failed to advance before the Tribunal when she had the opportunity to do so. In my opinion, the appeal should be dismissed with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.
Associate:
Dated: 30 November 2005
The Applicant did not appear
Counsel for the Respondent:
S B Lloyd
Solicitor for the Respondent:
Clayton Utz
Date of Hearing:
17 November 2005
Date of Judgment:
17 November 2005
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