SZGNZ v Minister for Immigration and Multicultural Affairs

[2006] FCA 667

FEDERAL COURT OF AUSTRALIA

SZGNZ v Minister for Immigration & Multicultural Affairs [2006] FCA 667

SZGNZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

NSD382 OF 2006

EMMETT J
23 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD382 OF 2006

BETWEEN:

SZGNZ
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	NSD382 OF 2006

BETWEEN:

SZGNZ
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 13 October 2004.  On 29 November 2004, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth). On 31 December 2004, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused to grant a protection visa and on 9 February 2005, the appellant applied to the second respondent, the Refugee Review Tribunal (‘the Tribunal’), for review of the delegate’s decision.

2. On 18 April 2005, the Tribunal affirmed the decision not to grant a protection visa.  That decision was published on 11 May 2005.  On 20 June 2005, the appellant commenced a proceeding in the Federal Magistrates Court of Australia seeking Constitutional writ relief in respect of the Tribunal’s decision.  On 3 February 2006, the Federal Magistrates Court ordered that that proceeding be dismissed and that the appellant pay the Minister’s costs in the sum of $4,700.

3. By notice of appeal filed on 24 February 2006, the appellant appealed to this Court.  That appeal is fixed for hearing before me today.  The grounds of appeal of 24 February 2006 are nonsensical.  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.’

   When invited to address the Court in support of the appeal, the appellant said that he had nothing to say. 

4. In its reasons, the Tribunal recorded that, on 11 February 2005, the Tribunal wrote to the appellant informing him that the Tribunal had received his application for review. That letter was sent to the appellant’s adviser as nominated in the appellant’s application and a copy was also sent to the appellant at the address notified by him.  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 no evidence before the Tribunal that the appellant did not receive that letter.

5. On 9 March 2005, the Tribunal wrote to the appellant again 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.  The Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 15 April 2005.  The appellant was informed that if he did not attend the hearing and a postponement was not granted, the Tribunal would be entitled to make a decision on the case without any further notice to him.  The letter was sent by registered post addressed to the appellant’s adviser as nominated in his review application.

6. On 23 March 2005, the Tribunal contacted the appellant’s adviser requesting a response to the hearing invitation.  No response to the hearing invitation was received by the Tribunal.  The appellant did not attend the hearing listed on 15 April 2005 and the Tribunal received no explanation for that non-attendance.  The Tribunal therefore proceeded to make a decision on the review without taking any further action to enable the appellant to appear before it.

7. The Tribunal was satisfied on the information before it that the appellant is a citizen of China and that he is outside China.  However, the Tribunal described the appellant’s claims as extremely vague and general and observed that he had not provided details relating to many aspects of his claims.  The Tribunal observed that, without further details or corroborative evidence and without having had the opportunity to explore the appellant’s claims at a hearing, the Tribunal was not satisfied that the appellant is 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.

8. The matter proceeded before the Federal Magistrates Court on the basis of an amended application filed on 4 August 2005.  The grounds were relevantly as follows:

   ‘(3)The Tribunal misconstrued and misapplied the law concerning its determination.

   (4)Many of my important claims, facts and evidence were not considered and assessed carefully when the decision was made by RRT.  I do not have funds to prepare the RRT transcript.  I would like RRT or the respondent to provide me an RRT transcript if possible.

   (5)The nature of refugee claims involved risky factors when hard evidence was to be transferred from China to Australia.  When some 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.

   (6)I need time to engage a property solicitor to prepare for the case.  I have not yet received any free legal advice from a lawyer appointed or recommended by the Court.  This is unfair to me.  I await an appointment from the ‘scheme’.  I am not a legally trained person.  I do need legal advice to prepare legal documents.’

9. The reasons of the primary judge indicate that his Honour considered carefully the reasons of the Tribunal and the curious grounds in the amended application, including the request for a transcript of a hearing that did not take place.

10. There is no error in the reasons of the Federal Magistrates Court.  This appeal should never have been brought and should be dismissed with costs.

11. I should observe, however, certain similarities between this appeal and another appeal which I have dealt with earlier today.  The circumstances of the two proceedings are strikingly similar:

    ·     each appellant claimed to fear persecution by reason of being a Falun Gong practitioner in China;

    ·     neither furnished particulars of his claims;

    ·     neither attended a hearing before the Tribunal when invited to do so;

    ·     the language of the original handwritten applications to the Federal Magistrates Court appears at least superficially to be similar;

    ·     the handwriting appears to be the same;

    ·     the same telephone numbers for contact appeared in each application.

12. Similarly, the amended grounds contain striking similarities.  Further, the notices of appeal to this Court are identical in their content and at least superficially appear to be in the same handwriting and the same contact telephone numbers have been furnished.

13. It is of concern to the Court that public money is wasted by appeals such as this, which should never have been brought.  The matters to which I have just referred suggest that the appellants are receiving advice from persons who may not be qualified to give either legal advice or migration advice.  That is a matter of considerable concern because it indicates a serious offence may have been committed.  I mention these matters so that the attention of the Minister may be drawn to them and steps may be taken to ensure that if there is any contravention of the law it might be pursued.

I certify that the preceding thirteen (13) 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.
Counsel for the Respondent:	Ms S. Kaur-Bains
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	23 May 2006
Date of Judgment:	23 May 2006