SZEKM v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1214

FEDERAL COURT OF AUSTRALIA

SZEKM v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1214

SZEKM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 869 OF 2005

STONE J
30 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 869 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEKM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	30 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with 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 869 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	STONE J
DATE:	30 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of a Federal Magistrate made on 16 May 2005 in which his Honour dismissed an application to review a decision of the second respondent (‘the Tribunal’) made on 5 August 2004 and handed down on 30 August 2004.  The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the appellant a Protection (Class XA) visa.

2. At the hearing of this appeal, the appellant, who appeared for himself with the aid of an interpreter, stated that he knew the appeal was hopeless and that he had only filed the appeal in the hope of staying in Australia for longer and avoiding the removal proceedings that ordinarily follow refusal of a protection visa.  However, given the appellant was unrepresented and I had serious doubts that he was aware of the consequences of this statement, I decided to address the grounds listed in his notice of appeal.

3. The appellant, a citizen of the People’s Republic of China, arrived in Australia on 18 April 2004.  On 23 April 2004, he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On the same day, the delegate of the first respondent refused the application.  On 26 May 2004, the appellant sought review of the delegate’s decision with the Tribunal.

   The appellant’s claims

4. According to his protection visa application, the appellant was born in Shanghai and, after completing 10 years of schooling, commenced work with a ‘bus services company’ where he worked from 1981 until his departure to Australia in 2004. 

5. The photocopy of the appellant’s passport attached to his protection visa application shows that it was issued in December 2003.  While the appellant indicated in his protection visa application that he left China legally, he also claimed he experienced difficulty in obtaining his passport and ‘had to pay some money’.

6. In a statement attached to his protection visa application, the appellant claimed that he started to learn Falun Gong and became a ‘member’ in 1998 after being introduced by a cousin who was the ‘head’ of Falun Gong in Shanghai.  He stated that he began to learn Falun Gong for health purposes.  After a few months of practising, he found his health improving and said he ‘could not live without practicing it’.  The appellant claims that at this point he started to introduce other friends and colleagues to Falun Gong and that most of his spare time was spent devoted to Falun Gong. 

7. In 1999 Falun Gong was declared illegal in China.  The appellant claimed that as a result, ‘we [presumably the appellant and other followers] started to live in horror and we were often called together for brain washing by the political section of our company’.  The appellant claimed that in July 1999 he went to Beijing with other Falun Gong members to present a petition.  According to the appellant, there were ‘thousands and thousands of members’ at the rally in Beijing on this day.  In his statement, the appellant claimed that the government used the army to disperse the group, forcing him to return to Shanghai worrying about his safety.  Due to his concerns about his safety, the appellant claimed to have taken leave without pay and gone into hiding.

8. The appellant stated that in October 2003 he ‘realized that the government [had] started to investigate me about my involvement with’ Falun Gong.  Concerned about his safety, he sought help from ‘some concerned people’ and obtained a passport and a visa to come to Australia.

9. On this basis, the appellant claimed to fear persecution by the Chinese authorities on account of his membership of the Falun Gong movement.

   The Tribunal’s decision

10. As noted above at [2], the appellant sought review of the delegate’s decision by the Tribunal on 26 May 2004.  The application for review essentially reproduced, in truncated form, the claims he made in his protection visa application.

11. By letter dated 3 June 2004, the Tribunal wrote to the appellant advising him that it was unable to make a decision in his favour on the material then before it and invited the appellant to attend a hearing at 10.00am on Wednesday 28 July 2004.  A Response to Hearing Invitation form was attached to the letter which also stated:

    ‘The Tribunal will only change this hearing date for good reasons.  If you think you might be unable to attend the hearing, you must contact the Tribunal immediately.  If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.’

    On 28 June 2004, the Tribunal received the appellant’s completed Response to Hearing Invitation form in which he indicated that he wished to attend the hearing.

12. In its reasons, after recording this background the Tribunal stated:

    ‘However, the Applicant did not attend the hearing or contact the Tribunal to explain his failure to attend.  In these circumstances, and pursuant to s.426A of the [Migration Act 1958 (Cth)], the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.’

13. Turning to consider the appellant’s claims, the Tribunal stated:

    ‘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.’

14. The Tribunal consequently was unable to be satisfied that the appellant adheres to Falun Gong; that he was or is the subject of any adverse attention of the Chinese authorities for that or any other reason; or that there are any past or current circumstances which give rise to a well-founded fear of persecution for a Convention reason in the foreseeable future. 

    The Federal Magistrate’s decision

15. Before the Federal Magistrate the appellant raised two grounds of review.  First, that he was not given a proper opportunity to explain his case and was thereby denied procedural fairness; and secondly, that the Tribunal Member demonstrated apprehended bias in dismissing his application for review.

16. In relation to his claim of a denial of natural justice, the appellant stated before his Honour that he was ill for three or four days over the period of the hearing.  The Federal Magistrate commented at [7] of his reasons:

    ‘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.’

17. The Federal Magistrate stated that there was no evidence before him to demonstrate that an application for an adjournment was made and no medical certificate to certify the appellant’s health at the relevant time. His Honour held that as the appellant had been invited to attend the hearing and there was no evidence before the Tribunal as to why the appellant had not appeared the Tribunal was within its rights under s 426A(1) of the Migration Act 1958 (Cth) (‘the Act’) to proceed to make a decision in the appellant’s absence

18. In respect of the claim of apprehended bias, the Federal Magistrate stated at [12]-13]:

    ‘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. …
    The simple answer 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.’

19. Having rejected the appellant’s claims, the Federal Magistrate dismissed the application.

    This appeal

20. The notice of appeal to this Court from his Honour’s judgment lists the following grounds of appeal:

    ‘2.The Tribunal failed to consider my [claims] for my application for a protection visa.

    3.The Tribunal did not properly observe the Migration Act 1958 to consider my application for a protection visa.

    4.The Tribunal filed to exercise its jurisdiction as it failed to assess the chance that I would be persecuted on my return to China because of Falun Gong.

    5.I attended the hearing at [the] Federal Magistrates Court but my arguing points were not accepted by the Judge.’

21. On 6 July 2005, I ordered that the appellant file and serve written submissions no later than 22 August 2005.  The appellant has not complied with this order and the Court is therefore required to proceed on the basis of the entirely unparticularised grounds quoted above.

22. In relation to the appellant’s claim of procedural unfairness made before the Federal Magistrate, the appellant does not deny that he was invited to attend the hearing in accordance s 425 of the Act. As such, the Tribunal was empowered under s 426A(1) of the Act to make a decision on the review without taking any further action to allow or enable the appellant to appear before it. There was no error in the Tribunal proceeding as it did and no error in the Federal Magistrate dismissing this claim.

23. In respect of the claim of apprehended bias, I respectfully agree with his Honour as to the seriousness of such an allegation.  It is plain that the failure of the appellant to attend the hearing and the Tribunal’s affirmation of the delegate’s decision are linked.  The Tribunal did not have the opportunity to question the appellant and obtain further information from him.  It was consequently unable to be satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention.  There is nothing in the Tribunal’s reasons to provide any support for an allegation of apprehended bias.

24. The appellant has also raised a number of further allegations on appeal.  Leaving aside the issue of the limited role of an appellate court, none of these grounds are supported by any material before this Court and, in my opinion, are plainly devoid of merit.

25. In my view, the Tribunal’s decision does not contain jurisdictional error, either as alleged by the appellant or otherwise, and the Federal Magistrate was correct to dismiss the application before him.  The appeal must be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             1 September 2005

The Appellant appeared in person
Counsel for the Respondent:	S Kaur-Bains
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	30 August 2005
Date of Judgment:	30 August 2005