SZFGD v Minister for Immigration and Multicultural Affairs

[2006] FCA 654

FEDERAL COURT OF AUSTRALIA

SZFGD v Minister for Immigration & Multicultural Affairs [2006] FCA 654

SZFGD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NSD348 OF 2006

EMMETT J
23 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD348 OF 2006

BETWEEN:

SZFGD
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

23 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

(1)       The appeal be dismissed.

(2)       The appellant pay the first respondent’s costs of the appeal.

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	NSD348 OF 2006

BETWEEN:

SZFGD
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE:

23 MAY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The appellant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 3 May 2004.  On 2 June 2004, he lodged an application for protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 10 June 2004, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused to grant a protection visa. On 15 July 2004, the appellant applied to the second respondent, the Refugee Review Tribunal (‘the Tribunal’), for a review of the delegate’s decision. On 18 October 2004, the Tribunal affirmed the decision not to grant a protection visa. That decision was published on 10 November 2004.

2. On 15 December 2004, the appellant commenced a proceeding in the Federal Magistrates Court of Australia seeking Constitutional writ relief in respect of the Tribunal’s decision.  On 31 January 2006, the Federal Magistrates Court ordered that the proceeding be dismissed and ordered the appellant to pay the Minister’s costs in the sum of $3,500.  On 21 February 2006, the appellant filed a notice of appeal to this Court.  That appeal is fixed for hearing before me today.

3. The grounds of appeal of 21 February 2006 make no sense.  They are as follows:

   ‘1.The respondent failed to file and serve certain documents as ordered by the Court.

   2.The respondent did not file notice of appearance until too late.’

4. When the matter was called on for hearing the appellant appeared without any legal representation but with the assistance of an interpreter.  When asked if he wanted to say anything in support of his appeal, the appellant said that he relied on the material that had been provided to the Department and that he had no other evidence to offer to the Court.

5. The matter proceeded before the Federal Magistrates Court on the basis of an amended application filed on 4 April 2005.  The grounds of that amended application were as follows:

   ‘(4)The Tribunal misconstrued and misapplied the law concerning its determination.  I was unable to attend the hearing due to serious illness.  This fact was not taken into consideration when the refusal decision was made by the Member.

   (5) Many of my important claims were not considered and assessed carefully when the decision was made.

   (6)The nature of refugee claims involves risky factors when hard evidence was to be transferred from China to Australia.  When hard evidence was not yet available, I should be given some opportunities and benefits of doubts and my written and oral claims should be treated as evidence and be given sufficient weight.

   (7)I need time to engage a proper solicitor to prepare for the hearing in July 2005.

   (8)I have not yet received any free legal advice from the lawyer appointed or recommended by the Court.  This is unfair to me.  I await an appointment.  I am not a legally trained person.  I do need legal advice to prepare legal documents.’

6. The reasons of the Tribunal record that, on 16 July 2004, the Tribunal wrote to the appellant informing him that the Tribunal had received his application for review.  The Tribunal's letter explained that the appellant might be invited to a hearing and that a hearing would be his opportunity to give the Tribunal evidence to support his application.  There was nothing before the Tribunal to indicate that the appellant had not received that letter.

7. On 13 September 2004, the Tribunal wrote again to the appellant informing him that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.

8. The Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 29 October 2004.  On 1 October 2004, the appellant responded to the hearing invitation by saying that he did not wish to attend the hearing listed for 29 October 2004.  He also consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

9. The Tribunal was satisfied on the basis of the information available to it that the appellant is a citizen of China and that he is outside China.  The Tribunal referred to the appellant’s claims as being general and vague and lacking in essential details.  The Tribunal observed that, without further details or corroborative evidence and without having had the opportunity to explore the claims with the appellant at a hearing, the Tribunal could not be satisfied that the appellant was a Falun Gong practitioner as he claimed.  The Tribunal was therefore not satisfied that the appellant was a person to whom Australia owes protection obligations.

10. The Federal Magistrate who heard the proceeding carefully reviewed the material that was before the Tribunal and found no error.  There is no error in the reasoning or decision of the Federal Magistrates Court.  This appeal should never have been brought.  It should be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             30 May 2006

The appellant appeared in person.
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	23 May 2006
Date of Judgment:	23 May 2006