SZFLG v Minister for Immigration and Citizenship

[2007] FCA 333

FEDERAL COURT OF AUSTRALIA

SZFLG v Minister for Immigration and Citizenship [2007] FCA 333

SZFLG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2083 OF 2006

BESANKO J
12 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2083 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFLG
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	12 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended from ‘Minister for Immigration and Multicultural Affairs’ to ‘Minister for Immigration and Citizenship’.

2.The Refugee Review Tribunal be joined as the second respondent to the appeal.

3.The appeal be dismissed.

4.The appellant pay the 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	NSD 2083 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFLG
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	12 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the Federal Magistrates Court. The appellant applied to that Court for constitutional writs with respect to a decision of the Refugee Review Tribunal. The Magistrate dismissed the application.

2. The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 11 June 2004. On 8 July 2004 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (‘the Act’). On 24 August 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa. On 28 September 2004 the appellant applied to the Tribunal for a review of that decision.

3. In his reasons the Tribunal member referred to the material he had before him and he noted that the appellant had not responded to the invitation the Tribunal had extended to him to appear before it. He decided to hear the application for review without giving the appellant a further opportunity of appearing before him.

4. The appellant’s claim as stated in the material before the Tribunal member was as follows. The appellant is a 35-year-old Chinese citizen born in Heilongjiang, China. He gave his occupation as unemployed. He travelled to Australia on a subclass 456 visa. He arrived in Australia using a Chinese passport issued on 31 July 2003 in Heilongjiang and valid until July 2008. The appellant claimed that he attended No 3 High School in Er Cheng City.

5. The appellant claimed that he came from a landlord’s family prior to the Communist Revolution. That led to the persecution of his parents and that in turn had an effect on him. He began attending demonstrations and meetings to organise activities for freedom and democracy in China. The appellant claimed that he was detained by the local police in 2003 and had to leave China for his protection. He claimed that he would be persecuted if he returned to China.

6. The appellant claimed that he could not find a job in China and that he lived in poverty. A relative had helped him to obtain a passport.

7. The Tribunal referred to the broad allegations made by the appellant and said that his non-appearance at the Tribunal meant that a number of questions remained unanswered. The Tribunal said that a number of personal details put forward by the appellant were details it was unable to accept. For example, it was unable to accept that he was unemployed without an explanation as to how he was able to finance his travel to Australia. The Tribunal said that it was unable to seek from the appellant information as to the alleged persecution of his parents and himself and the manner in which he was said to have been targeted for persecution by the authorities because of his alleged political activities. The Tribunal concluded its reasons as follows:

   ‘Owing to the lack of detail provided by the applicant in support of his claimed political activities, the Tribunal is unable to be satisfied that the applicant was persecuted for having helped organise activities and demonstrations for freedom and democracy in China, nor can it be satisfied that he engaged in such activities in the past nor that he would face harm on this basis in the future.

   The Tribunal is not satisfied that the applicant faces a real chance of persecution on his return to China for reasons of his political views or for any other Convention related reason.’

8. The Tribunal affirmed the decision under review not to grant a protection visa to the appellant.

9. As I have said, the appellant applied to the Federal Magistrates Court for the issue of constitutional writs. On 23 October 2006 a Federal Magistrate dismissed the application.

10. The appellant was not represented either before the Magistrate or before me. His notice of appeal, affidavit and submissions raise three ground of appeal. First, he submits that the Magistrate erred in not concluding that the Tribunal member was biased against him and that his decision was irrational and illogical. I reject this ground of appeal. There is no evidence of bias on the part of the Tribunal member and his decision was not irrational or illogical. He was entitled to say that the evidence before him did not satisfy the matters necessary to make out a claim for a protection visa. Secondly, the appellant submits that the Magistrate erred in not concluding that the Tribunal failed to notify him of the reason or part of the reason for affirming the decision under review and thereby failed to comply with s 424A of the Act. I reject this ground of appeal. The Tribunal was unable to be satisfied of the criteria for the granting of a protection visa because of the lack of information before it. That was not information which fell within the terms of s 424A of the Act. Thirdly, the appellant submits that the Magistrate erred in not concluding that the Tribunal failed to assess his claim that he would be persecuted on his return to China. I reject this ground of appeal. The Tribunal did assess his claim and it held that there was insufficient information upon which to find that it was made out. The Tribunal was entitled to take that approach.

11. The Federal Magistrate did not err and the appeal must be dismissed.

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

Associate:

Dated:        9 March 2007

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr J Bird
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	12 February 2007
Date of Judgment:	12 February 2007