SZFFQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1347

FEDERAL COURT OF AUSTRALIA

SZFFQ v Minister for Immigration & Multicultural & Indigenous Affairs [ 2005] FCA 1347

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Migration Act1958 (Cth) s 426A

SZFFQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1113 OF 2005

HELY J
14 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1113 OF 2005

BETWEEN:	SZFFQ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	14 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        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 1113 OF 2005

BETWEEN:	SZFFQ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	14 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Scarlett FM dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) which affirmed a decision of the Minister’s delegate not to grant to the appellant a protection visa. By direction of the Chief Justice pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appeal is to be heard and determined by a single judge.

2. The appellant is a citizen of the Peoples’ Republic of China, who claims to have a well-founded fear or persecution in China because he is a Falun Gong practitioner.  By letter dated 14 September 2004 the RRT wrote to the appellant and informed him that the RRT had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone.  He was invited to attend a hearing scheduled for 25 October 2004 but he failed to attend.  He did not contact the RRT to explain his failure to attend, nor did he provide any information to the RRT in advance of the scheduled hearing indicating that he was facing any difficulties in accepting the RRT’s invitation to attend at that time.

3. The appellant told me this morning that he did not attend because he had had an accident. But he did not communicate that information to the RRT, and in the circumstances, the RRT correctly exercised its discretion under s 426A of the Migration Act1958 (Cth) to proceed to a determination of the matter on the material before it. The RRT’s decision was made on 26 October 2004.

4. The appellant had made claims of arrest and detention and serious torture.  In its reasons for decision, the RRT described his claims as lacking in detail and supporting evidence.  The RRT said that it was unable to make a finding that the appellant suffered persecution in China for his religious beliefs.  The RRT was not satisfied that the appellant was a follower of Falun Gong, and this was the fulcrum on which all of his claims turned. 

5. Scarlett FM described the application to the Federal Magistrates Court as one which merely set out again the claims which the appellant had made to the RRT coupled with a request that the RRT’s decision be set aside, but no grounds were provided for setting aside that decision.  Scarlett FM was unable to see any jurisdictional error in the RRT’s decision, hence his Honour dismissed the application for review.

6. The Notice of Appeal to this court specifies the following as the grounds of appeal:

   ‘(a)      I am a normal Falun Gong practitioner.
   (b)      I was arrested by police when I was in China.
   (c)       I face a risk of being jailed.
   (d)      My fear is well-founded.’

7. These grounds invite the Court to engage in a merits review of the RRT’s decision, and that is not a course which this Court is entitled to take in the exercise of its jurisdiction. 

8. The appellant has not complied with an order which I made on 9 August 2005 that he should provide written submissions prior to the commencement of the hearing of the appeal.  Nonetheless, I invited him to put to me this morning anything that he wished to put in support of his appeal.  He told me that his failure to attend the RRT hearing was due to an accident.  He also told me that the RRT’s finding that it was incredible that he was issued with a passport during the period when he claimed to have been in detention, was not in truth incredible because you can get anything in China if you are prepared to pay for it.  The appellant could not bear the torture, he told me, hence he asked friends to get him a passport.

9. I endeavoured to explain to the appellant that he has to show error on the part of Scarlett FM or jurisdictional error on the part of the RRT if he is to have any prospect of success in this appeal, yet nothing which he has put to me comes anywhere near establishing either of those matters.

10. The Full Court of this Court has said on more than one occasion that once the RRT invites an applicant to attend a hearing because it does not feel able to make a finding in favour of the applicant on the papers alone, if the applicant does not attend the hearing then it is almost inevitable that his protection visa application will fail.  That is what happened in this case.  The RRT acted with complete propriety and in accordance with the law, and the appellant only has himself to blame for not attending the hearing and for not advising the RRT of his inability to attend.  The result is that the appeal must be dismissed with costs.

11. The order of the Court is that the appeal 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 Hely.

Associate:

Dated:            22 September 2005

The appellant appeared in person
Counsel for the Respondent:	Ms T Wong
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	14 September 2005
Date of Judgment:	14 September 2005