SZFOS v Minister for Immigration and Citizenship

[2007] FCA 321

FEDERAL COURT OF AUSTRALIA

SZFOS v Minister for Immigration and Citizenship [2007] FCA 321

SZFOS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2084 OF 2006

BESANKO J
12 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2084 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFOS
Appellant

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 respondent Minister be amended to read ‘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 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 2084 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFOS
Appellant

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 orders made by a Federal Magistrate. The appellant applied to the Federal Magistrates Court for constitutional writs in respect of a decision by the Refugee Review Tribunal handed down on 5 January 2005. The Magistrate dismissed the application. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of the People’s Republic of China. He was born on 7 September 1976. He arrived in Australia on 20 June 2004 and on 24 June 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 (Cth) (‘the Act’). As I have said, a delegate of the Minister refused the appellant’s application and on 3 August 2004 the appellant applied to the Refugee Review Tribunal for a review of that decision.

3. On 1 October 2004 the Tribunal wrote to the appellant and asked him to provide additional information in relation to a number of issues. The appellant wrote to the Tribunal on 27 October 2004 providing some additional information.

4. On 1 November 2004 the Tribunal wrote to the appellant advising him that it 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. The appellant was invited to attend a hearing of the Tribunal on 8 December 2004. The appellant was advised that the Tribunal would only change the hearing date for good reason and that if he was unable to attend the hearing he should contact the Tribunal immediately. The appellant was advised that if he did not attend the hearing and the Tribunal did not postpone the hearing it could make a decision on his case without further notice. On 7 November 2004 the appellant sent a form to the Tribunal in which he indicated that he did wish to attend a hearing and that he required an interpreter.

5. The appellant did not attend the hearing on 8 December 2004. By letter dated 13 December 2004 he was advised by the Tribunal that it would hand down its decision on 5 January 2005. On that date the Tribunal member handed down his decision, affirming the decision of the delegate.

6. In his reasons the Tribunal member referred to the appellant’s non-attendance on 8 December 2004. He said that the appellant did not attend the hearing or contact the Tribunal to explain his failure to attend. He said that he had decided to make a decision on the review without taking any further action to allow or enable the appellant to appear before the Tribunal.

7. In the information he had provided to the Tribunal the appellant asserted that he was a Christian and that he would be persecuted in China by reason of that fact. The Tribunal member referred to the absence of details provided to the Tribunal to support these claims. He said that based on the limited information provided to the Tribunal he was not prepared to accept the claim that the appellant was a Christian or that he faced persecution for reasons of religion.

8. The appellant also claimed that he had been involved in various public political activities, fighting for political and religious freedom. Again, the Tribunal member referred to the absence of detail provided to the Tribunal in terms of the appellant’s involvement in public political activities. The Tribunal noted the appellant’s assertion that he had been questioned by some police officers but, again, he had not provided any details of the questioning.

9. The Tribunal member noted that the appellant had not provided details of any serious harm he might suffer at the hands of the authorities in China.

10. The Tribunal member said:

    ‘On the basis of the limited information provided by the applicant, the Tribunal does not accept that he was involved in public political activities. The Tribunal does not accept that he came to the adverse attention of Chinese authorities or that he was harmed by them because of any political activities on his part. The Tribunal does not accept that, if he were to return to China in the foreseeable future, he would face harm from the Chinese authorities.’

11. In his application to the Federal Magistrates Court, the appellant set out seven grounds upon which he challenged the decision of the Tribunal. Each ground was considered by the Magistrate and each ground was rejected.

12. The appellant’s grounds of appeal to this Court contain criticisms of the decision of the Tribunal. This is an appeal from the decision of the Magistrate and to succeed the appellant must show that the Magistrate erred. I will read the grounds of appeal as if they complain of the Magistrate’s decision not to find error in the approach and reasoning of the Tribunal.

13. The first ground of appeal is that the Magistrate erred in not concluding that the Tribunal had not considered the appellant’s application ‘according to’ s 91R of the Act. As far as I can see, this was not a ground raised before the Magistrate. In my view it has no substance. Section 91R of the Act deals with, among other things, the ‘persecution’ which must be established for the purposes of Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol (‘the Convention’): s 5 of Act. That was not an issue before the Tribunal. The appellant failed before the Tribunal because, on the information provided to the Tribunal, the Tribunal member could not be satisfied of his claims. He did not fail because of the Tribunal member’s approach to the meaning of ‘persecution’ in the Convention.

14. The second ground of appeal is that the Magistrate erred in not concluding that the Tribunal was biased in considering the appellant’s application for a protection visa. This is a ground of appeal which was raised before the Magistrate, although it is difficult to see how the complaint is really one of bias, whether it be actual or apprehended bias. It was said by the appellant that the Tribunal should not have proceeded to make a decision on the review without taking further action to allow or enable the appellant to appear before it. By reason of s 425 of the Act, the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425A deals with the content of the invitation to appear and how it is to be given to an applicant. It is not suggested in this case that the Tribunal did not comply with the provisions of s 425A. In those circumstances, the Tribunal member, by reason of s 426A, had a discretion to make a decision on the review without taking any further action to allow or enable the appellant to appear before it. There is no error, let alone jurisdictional error, in the manner in which the Tribunal member exercised that discretion. The Magistrate did not err in rejecting the claim of bias against the Tribunal.

15. The third ground of appeal is that the Magistrate erred in not concluding that the Tribunal’s reasoning was irrational and illogical. In her reasons, the Magistrate said:

    ‘In the proceeding before this Court, the Tribunal did no more than identify significant matters about which it wanted to have satisfied itself at a hearing. The findings were open to the Tribunal on the material before it and its reasons for failing to be satisfied of the veracity of the applicant’s claims were reasoned and logical.’

16. There is no error in that reasoning of the Magistrate, and this ground of appeal must fail.

17. The fourth ground of appeal is that the Magistrate erred in not concluding that the Tribunal failed to carry out its statutory duty. The precise nature of this complaint is not clear, but it would seem that the appellant is asserting that there has been a breach of s 424A of the Act. That section requires the Tribunal to give to an applicant particulars of ‘any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review’. The Magistrate considered that complaint. She referred to various authorities to the effect that the section is not engaged where the reason or part of the reason the Tribunal has for affirming the decision that is under review is the lack of information or details provided by an applicant. That was how the Tribunal member approached the matter in this case. The Magistrate did not err in concluding that there had been no breach of s 424A of the Act. Leaving aside the statutory provisions, by reason of the Tribunal’s letters dated 1 October 2004 and 1 November 2004, the appellant would have been under no misapprehension that the Tribunal was looking for as much information as he could provide.

18. The fifth ground of appeal is that the Magistrate did not consider the appellant’s application ‘with full details’. This seems to be a complaint about the way in which the Magistrate approached the merits of the appellant’s claim. There is no substance in the complaint. The Magistrate correctly noted that it was not for her to review the merits of the Tribunal’s decision and that, to succeed before her, the appellant needed to show that there had been jurisdictional error.

19. All grounds of appeal fail and the appeal should be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:        8 March 2007

The Appellant	The appellant in person
Counsel for the Respondent:	Mr S Free
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	12 February 2007
Date of Judgment:	12 February 2007