SZEKM v Minister for Immigration - [2005] FMCA 692

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEKM v MINISTER FOR IMMIGRATION

[2005] FMCA 692

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – applicant a citizen of China – where Applicant claims he was ill and sought an adjournment of the RRT hearing but it was refused – Falun Gong – where Applicant claims a well-founded fear of persecution because he is a follower of Falun Gong – where Applicant did not attend the RRT hearing – where RRT could not be satisfied on the limited evidence available to it that the Applicant was a supporter of Falun Gong – no evidence that any adjournment was sought on behalf of the Applicant – no medical evidence supporting the Applicant’s claim – bias – applicant claims that the RRT member was biased – unfavourable decision by the RRT no evidence of itself of bias – no reviewable error.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.425, 426A, 475A

Minister for Immigration and Multicultural Affairs v Mohammed (2002) FCA 1275
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Applicant:

SZEKM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2847 of 2004

Delivered on:

16 May 2005

Delivered at:

Sydney

Hearing date:

16 May 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Mr Cramer

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent's costs of this application fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2847 of 2004

SZEKM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 5 August 2004. It was handed down on 30 August 2004. The Refugee Review Tribunal in its decision affirmed a decision by a delegate of the Minister to refuse to grant a protection visa to the Applicant.
The Applicant is a citizen of the Peoples Republic of China. He arrived in Australia on 18 April 2004. Five days later, on 23 April, he lodged his application for a protection visa. A delegate of the Minister refused that application the same day. The Applicant sought a review of that decision from the Refugee Review Tribunal. He lodged his application on 26 May 2004. The Tribunal invited him to attend a hearing. The Tribunal did this by means of a letter dated 3 June 2004. The hearing was scheduled for 10 am on Wednesday, 28 July. The Applicant sent back a form saying that he did wish to give evidence. The Applicant did not attend the hearing.
The Tribunal decided that it would proceed to deal with the application on the basis of the material before it. It did so based on its power under s.426A of the Migration Act. The Tribunal considered the Applicant's claim based on his application for a protection visa and his application for the review of that decision. The Tribunal decided that the Applicant was not entitled to a protection visa.
The Tribunal said that it was not satisfied because the available material was insufficient for the Tribunal to make a favourable decision. On page 73 of the Court Book the Tribunal said:
The Tribunal has before it little more than a vague and incomplete account contained in the Applicant's protection visa application and his brief written statement to the Tribunal. It has not had the opportunity through a hearing or other means to obtain further information to determine the veracity of the applicant's claims and their relevance to his application for refugee status.
This passage appears at page 73 of the Court Book.
The Applicant's claim for refugee status arises out of his practice of the belief known as Falun Gong. He claims that he took up this practice early in 1999 and was involved in various activities in Beijing in April and July 1999. He said that the police acted very harshly to Falun Gong members who were demonstrating in public. The Applicant fears persecution if he should return.
The Applicant in effect cites two grounds for his application for review. One ground is that he was denied procedural fairness in that his application for an adjournment was refused. The Applicant says he was ill for three or four days over the period of the hearing. The other ground was that the Tribunal member demonstrated an apprehended bias in dismissing his application. The Applicant claims that the Tribunal member was biased in his case because the Applicant did not attend the hearing.
The Applicant told the Court today that because he was ill he asked his migration agent to obtain an adjournment for him. He believes that he did so at least the day before the hearing, if not earlier. He said the migration agent told him that his application had been refused some time after the hearing. The migration agent did not attend Court today and has not filed any affidavit in these proceedings. The Applicant told the Court that he was not able to attend a doctor for the three or four days during the time that he was ill. He had brought some medication with him from China and he took that.
The fact is that the Court Book shows no sign at all of any application for an adjournment. There is no record which shows that anyone telephoned the Tribunal on the Applicant's behalf or that anyone attended personally. There is no medical certificate to certify the Applicant's ill health at the time. The fact is that the Applicant cannot prove that he was ill at the relevant time or that he sought an adjournment because of that illness.
In my view, the Refugee Review Tribunal was within its rights to proceed to make a decision on the review on the day of the hearing when the applicant had not appeared. I am satisfied that the Applicant had been invited under s.425 of the Migration Act to appear before the Tribunal. The Applicant does not deny that he was invited.
Section 426A (1) of the Migration Act gives the Tribunal the power to proceed to a decision in the absence of the Applicant. Certainly this is a case where the Tribunal appeared to have no evidence to show why the Applicant had not appeared. The Full Court of the Federal Court of Australia has upheld a decision where no criticism was made of the Tribunal's decision to proceed in this way. The Respondent has referred me to the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Mohammed (2002) FCA 1275.
The applicant has also said that he believes that the Tribunal was biased. His claim of bias is based on the fact that: 1) he did not attend the hearing; and 2) the Tribunal found against him. He believes and rightly so, that there is a connection between those two facts. It is well established that under s.425 of the Act a party is not invited to attend a hearing of the Refugee Review Tribunal unless the Tribunal is not able to make a favourable decision to the applicant on the material already before it. It is for that reason that an applicant is invited to attend a hearing of the Tribunal, so that the Tribunal may obtain further information from the applicant. The Applicant may well be able to give evidence or produce evidence to show the Tribunal why the application ought to be granted. It has often been said in this Court that applicants who do not attend the Refugee Review Tribunal hearing do themselves a great disservice.
The Applicant has told the Court that he believes the Tribunal was biased against him. He says he believes the Tribunal was biased because he did not attend the hearing and it was for that reason that the Tribunal did not find in his favour. It is a serious matter to make an allegation of bias; it involves an allegation of personal fault on the part of the decision maker. An allegation of bias should not be made lightly. I refer to the decision by von Doussa in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs. His Honour points out the seriousness of making such an allegation of bias.
The simple answer here is that there is no evidence of bias. A decision by the Tribunal that is not favourable to an applicant is not of itself evidence of bias. There has to be something more than that to show a degree of bias on the part of the decision maker. No evidence of bias appears on the Tribunal decision and the Applicant did not attend the Tribunal hearing. There is no reviewable error.
I see no evidence of any jurisdictional error. The decision therefore is what is known as a privative clause under s.424 of the Migration Act. The application will be dismissed.
I note that the solicitor for the respondent is seeking an order for costs.
This is a matter for an order for costs. The Applicant has been wholly unsuccessful and I order that the Applicant is to pay the Respondent's costs of this application.

I certify that the preceding (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 23 May 2005