SZFCC v Minister for Immigration and Multicultural Affairs

[2006] FCA 312

FEDERAL COURT OF AUSTRALIA

SZFCC v Minister for Immigration & Multicultural Affairs

[2006] FCA 312

SZFCC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2479 OF 2005

STONE J
28 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2479 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFCC APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	28 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs fixed in the amount of $3,000.

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 2479 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	STONE J
DATE:	28 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, a citizen of the People’s Republic of China, claims to have practised and organised the promotion of Falun Gong since 1998.  The appellant continued to practise Falun Gong privately even after the movement was banned by the Chinese Government.  The appellant claims that at some stage after his return to China in 2003 from a period spent living in Egypt the Chinese police arrested him and his wife, and detained them for four days before releasing them for ‘health reasons’.  Upon their release the appellant claims he and his wife returned to Egypt, before deciding to seek protection in Australia. 

2. The appellant and his wife arrived in Australia on 6 April 2004.  On 20 May 2004 the appellant lodged an application for a protection visa claiming to fear persecution upon his return to the People’s Republic of China because of his involvement with Falun Gong.  The appellant’s application referred to his wife but indicated that she had made her own application and was not included in his application.

   The Tribunal’s decision.

3. When his application was rejected by a delegate of the first respondent the appellant applied for a review of that decision in the Refugee Review Tribunal (‘Tribunal’).  On 30 August 2004 the Tribunal notified the appellant that it was not prepared to make a decision in his favour on the documents before it, and invited the appellant to appear before the Tribunal to give oral evidence and present arguments in support of his application.  The appellant did not appear before the Tribunal although he had accepted the invitation to do so.  The Tribunal proceeded to make its decision without further reference to the appellant and on 29 September 2004 affirmed the delegate’s decision.  

4. The Tribunal accepted that Falun Gong practitioners were sometimes persecuted in the People’s Republic of China but was not satisfied that the appellant was a Falun Gong practitioner or, indeed, that he had in fact suffered persecution as a result of his involvement with Falun Gong.  The Tribunal found that the appellant’s allegations were untested, unclear and lacking in detail in certain important respects and noted that if the appellant’s claims were genuine more evidence would have been forthcoming.

   The Federal Magistrate’s decision

5. The appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision.  The appellant submitted that he did not have time to attend his hearing before the Tribunal and that he believed that the evidence given by his wife in relation to her visa application would be taken into account by the Tribunal.  Accordingly the appellant submitted that the Tribunal erred in finding against the appellant without obtaining further information. 

6. The Federal Magistrate found that, pursuant to s 426A of the Migration Act 1958 (Cth) (the ‘Act’), the Tribunal was entitled to proceed without further notice to the appellant. His Honour noted that the Tribunal’s reasoning for affirming the delegate’s decision was ‘straightforward’ and that the Tribunal had found the appellant’s claims to be ‘untested, unclear and un-detailed’. His Honour found no error in the reasoning of the Tribunal and dismissed the application.

   This appeal

7. The appellant now appeals from the Federal Magistrate’s decision.  Although the notice of appeal refers to the Tribunal’s decision rather than the Federal Magistrate’s, it is tolerably clear that, in the notice of appeal and in his written submissions, the appellant is asserting that the Federal Magistrate erred in failing to find that the Tribunal made the following errors:

   1.refusing to consider evidence provided by the appellant’s wife at the hearing of her application before the Tribunal;

   2.failing to consider properly the possibility that the appellant would be persecuted upon his return to China;

   3.being biased against the appellant because of his trip to Egypt;

   4.failing to consider properly all of the claims made by the appellant; and

   5.failing to fulfil its obligations under s 424A of the Act .

8. The first ground of appeal relates to the Tribunal proceeding, under s 426A of the Act, to decide the application after the appellant did not attend the hearing without further notice to the appellant. At no stage did the appellant indicate to the Tribunal any expectation that evidence given by his wife in her application to the Tribunal would be considered in the decision relating to his application. I agree with the decision of the Federal Magistrate that there was no jurisdictional error in the Tribunal proceeding in this way.

9. Grounds two and three may be disposed of shortly.  Ground two is clearly an inappropriate attempt to re-agitate the merits of the appellant’s claim for refugee status and there was no evidence to support the allegation of bias in ground three.  Both grounds must be rejected. 

10. I do not see any merit in the fourth ground of appeal.  The Federal Magistrate did not have jurisdiction to entertain the appellant’s attempt to re-agitate the merits of the Tribunal decision.  His Honour addressed the only ground of appeal of substance disclosed by the appellant’s notice of appeal.  Accordingly this ground of appeal must also be rejected.

11. In respect of ground five, the appellant did not provide any particulars either in his notice of appeal or his written submissions.  At the hearing he was unable to provide particulars of this claim.  However, in his written submissions Mr Reilly, counsel for the respondent, directed my attention to what appears to be the source of the appellant’s claim in this respect.  It appears to be a claim that information the appellant provided in his visa application regarding his legal departure from Beijing in his own name (‘the Information’), formed part of the Tribunal’s reason for rejecting his application for review.

12. Pursuant to s 424A of the Act, the Tribunal is required to provide the appellant with particulars of any information that the Tribunal considers would be the reason, or part of the reason for affirming the decision under review. A failure to do so will constitute a jurisdictional error on the part of the Tribunal: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. In my view, however, the information that the appellant left China legally on his own passport was not part of the reason for the Tribunal’s decision. I accept the following argument on this issue made in Mr Reilly’s written submissions:

    ‘[I]n context this information is not “part of the reason” for the Tribunal’s decision, but is just reinforcing the point made earlier in the same sentence that there is no evidence that the Appellant had any difficulty leaving China. In light of the Tribunal’s previous findings, this comment is not information that is part of the Tribunal’s reasons for not being satisfied of the Appellant’s claims, as opposed to noting the absence of a claim. The reason for the Tribunal’s decision is simply the lack of detail in the Appellant’s claims and his failure to attend the Tribunal hearing, but such matters are thought processes and so not within s 424A(a).’

13. For these reasons the appeal must be dismissed with costs.  The first respondent has asked for costs in a fixed amount which I am satisfied should be in the amount of $3,000.

I certify that the preceding thirteen  (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             28 March 2006

The appellant appeared in person
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	28 March 2006
Date of Judgment:	28 March 2006