SZERP v Minister for Immigration and Multicultural and Indigenous

[2005] FCA 1928

FEDERAL COURT OF AUSTRALIA

SZERP v Minister for Immigration & Multicultural & Indigenous
Affairs [2005] FCA 1928

SZERP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

EDMONDS J
12 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1470 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZERP
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EDMONDS J

DATE OF ORDER:

12 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first 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 1470 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZERP
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EDMONDS J
DATE:	12 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EDMONDS J:

1. The appellant is a citizen of China, who arrived in Australia on 2 May 2004 and applied for a protection visa on 6 May 2004.  His application was refused by a delegate of the Minister on 11 May 2004 and he applied for review of that decision by the Refugee Review Tribunal (‘the Tribunal’) on 15 June 2004.  On 12 October 2004 the Tribunal handed down its decision affirming the decision of the delegate not to grant a protection visa. 

2. In support of his protection visa application the appellant submitted a short written statement describing abuse which he claimed he had suffered at the hands of the Chinese authorities as a result of being a Falun Gong practitioner.  These abuses consisted principally of physical abuse, which he claimed he suffered at the hands of the police.  In his statement he went on to say that he understood that the authority would put him into gaol again if he continued to practise Falun Dafa.  A similar but shorter statement was submitted to the Tribunal with his application for review. 

3. On 13 August 2004 the Tribunal sent a letter to the appellant, informing him that it was unable to make a decision favourable to him on the material before it and inviting him to attend a hearing on 10 September 2004.  It transpired during the course of the hearing in the Federal Magistrates Court that the appellant received this letter.  However, he did not respond to the invitation to appear at the time appointed for the hearing.  In the result the Tribunal proceeded to make its decision without taking further steps to hear from the appellant.

4. It is clear from the Tribunal’s findings and reasons that the Tribunal was concerned with the lack of detail in, and supporting evidence for, the appellant’s claims.  The Tribunal observed that, without the opportunity to question the appellant about his activities, it could not make findings of fact as to the nature and degree of the appellant’s past or ongoing involvement if any with Falun Gong.  Nor could the Tribunal make findings as to whether the appellant would practise Falun Gong if he returned to China or, if he did, whether this would attract the adverse attention of the Chinese authorities.  In this context the Tribunal noted that the appellant had travelled to Germany in September 2003 on his own passport and apparently without difficulty and had then returned to China without seeking protection in Germany.

5. The application filed in the Federal Magistrates Court did not attempt to identify any error of a legal kind by the Tribunal.  It merely restated the appellant’s claim to be a refugee and his claims of being a Falun Gong/Falun Dafa practitioner.  The court gave the appellant two opportunities to file an amended application but these were not taken up.  The matter was listed for final hearing despite the Minister’s attempts to have it dismissed summarily.

6. The grounds of the appellant’s application to the Federal Magistrates Court aside, his submissions before that court did not identify any error on the part of the Tribunal.  He asserted the decision was wrong and sought to demonstrate an injury to his arm which had not been mentioned to the Tribunal and gave an explanation from the bar table of why he had not attended the Tribunal hearing, which his Honour viewed with some scepticism in the face of his varying responses to a range of communications that the appellant had received from the Department, the Tribunal and the Federal Magistrates Court.  The Federal Magistrate considered independently whether any arguable case was made out on the material before him and was unable to identify any error in the Tribunal’s approach.

7. The notice of appeal to this Court asserts as grounds:

   ‘(1)The decision [of the Tribunal] involved an important exercise of the power conferred by the Migration Act [1958 (Cth)] and Regulations;

   (2)[The appellant meets] the refugee criteria.’

8. Once again, no basis is suggested for a conclusion that the Tribunal exceeded or failed to exercise its jurisdiction.  The Federal Magistrate’s conclusion that a fair reading of the Tribunal’s decision, on its face, does not disclose any error in the decision-making process is, in my view, clearly correct. 

9. The Tribunal complied with its statutory obligation to invite the appellant to a hearing and was entitled under s 426A of the Act to make a decision on the papers.  Having been put on notice that the Tribunal was not satisfied by his written claims but, nevertheless, declining the invitation to a hearing, the appellant could not complain of procedural unfairness in the Tribunal’s decision nor, to be fair, did he do so.

10. On the material before it the Tribunal was, in my view, entitled not to be satisfied that the appellant was a genuine Falun Gong practitioner, and to conclude that there was therefore no basis for finding that he had a well-founded fear of persecution in China.

11. In all the circumstances the appeal must be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:            19 January 2006

Solicitor for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr G R Kennett
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	12 December 2005
Date of Judgment:	12 December 2005