SZGTU v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 628

FEDERAL COURT OF AUSTRALIA

SZGTU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 628

SZGTU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 327 OF 2006

SIOPIS J
25 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 327 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGTU
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

25 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to 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 327 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGTU
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	25 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 31 January 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 14 June 2005.  The Tribunal affirmed the decision of the 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 (‘China’).  In a statement accompanying his application to the Tribunal, the appellant claimed to be a Falun Gong practitioner, and to have been detained in 2002 by the police in China for a month.  The appellant claimed he was beaten, physically abused and deprived of sleep during that detention, and that when he was released he was required to report to the police every day.  The appellant claimed he did not know what would happen to him in the future.  He said that he had heard from a relative, who happened to be in government, that the government of China would strike the Falun Gong again.  He had then, with the assistance of friends in China, obtained a visa to leave China and had come to Australia.  He claimed to be a refugee because of his ‘horrified [sic] experience’.

3. By letter dated 14 April 2005, the Tribunal informed the appellant that it was unable to come to a decision in his favour on the material provided alone, and invited him to attend a hearing on 10 May 2005. In its reasons, the Tribunal recorded that it received no response to this invitation, and the letter was not returned unclaimed. The appellant did not appear on the day and at the time the hearing was scheduled, and so pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’), the Tribunal decided to proceed to make its decision without taking further steps to enable the appellant to appear before it.

4. The Tribunal considered that the appellant had only provided ‘scant and vague’ details of his detention in 2002 and the nature of his activities at the time.  He provided no details of the incident which led to him being detained and had not said why he was detained and if indeed it was related to Fulan Gong activity.  The Tribunal noted that the appellant had said that he was required to report to the police after his release every day but had not said for how long he was required to report in this way.  The Tribunal also noted that information in the appellant’s protection visa application showed that he had the same job in a managerial capacity over the entire period from 2002 to 2004.

5. The Tribunal went on to say:

   ‘The applicant has not said whether he continued to practise Falun Gong after this incident [in 2002].  However the evidence available to the Tribunal indicates that the applicant continued to live at the same residential address and he continued in his employment as a manager up until 2004.  He was also granted a passport in February 2004 and undertook brief travel abroad in March 2004 and returned to China.  The applicant’s personal circumstances as described by him do not suggest that he was experiencing harm for reasons of his practice of Falun Gong prior to his departure from China in October 2004.  The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so.  Nor has he given the Tribunal the opportunity to explore aspects of his claims with him.  A number of relevant questions are therefore left unanswered.’

6. The Tribunal said that it was not satisfied, on the material provided to it, that the appellant was a Falun Gong practitioner or that he had been detained and harmed by Chinese authorities in 2002.  The Tribunal concluded that, as it was unable to accept the appellant’s claims on the facts, it was not satisfied that the appellant had a well founded fear of persecution in China for a Convention reason.

7. In his amended application for review before the Federal Magistrate, the appellant simply restated his claims to be a Falun Gong practitioner who was detained and tortured by the police in China.  He asserted that he satisfied the Convention definition of a refugee.  He did not refer to any recognisable claim of jurisdictional error.  The Federal Magistrate noted that it was not his task to consider the merits of the appellant’s claims.

8. Although the amended application contained no complaint that the Tribunal had made its decision in the appellant’s absence, the Federal Magistrate considered, and was satisfied that, the notification procedures enabling the Tribunal to proceed under s 426A of the Act were observed, and that in deciding to proceed in that manner, the Tribunal’s discretion had not miscarried. The Federal Magistrate said that the appellant sought in his submissions to address the question of his non‑attendance at the Tribunal’s hearing. The Federal Magistrate said:

   ‘14.The applicant appeared today, and his submissions did seek to address his non‑attendance at the Tribunal’s hearing.  The reason he gave for not attending was that he did not understand English and was delayed by other business.  As I understood him, he did receive the letter from the Tribunal and was aware of the hearing date.

   15.It is not necessary for me to inquire into whether his explanations for not attending are true and to assess whether they show an acceptable reason for his absence.  He did not claim to have informed the Tribunal of any difficulties in attending, and the Tribunal was on no notice of anything which should have caused it to consider rescheduling the hearing or delaying making its decision.’

9. The Federal Magistrate also said that he had considered the reasons given by the Tribunal for affirming the delegate’s decision and that they did not reveal any error which provided a ground to set aside the Tribunal’s decision.  The Federal Magistrate concluded that he was not satisfied that the Tribunal’s decision was affected by jurisdictional error and he dismissed the appellant’s application for review.

10. The notice of appeal filed on 20 February 2006 refers to the following three grounds of appeal: that the decision involved an important exercise of the power conferred by the Act, that the Tribunal’s finding was biased and that there was a breach of the rules of natural justice in connection with the making of the Tribunal’s decision.

11. The first ground of appeal nominated by the appellant, who appeared in person, does not identify a recognisable ground of appeal.

12. I have treated the notice of appeal in respect of the two other grounds of appeal as comprising a complaint that the Federal Magistrate erred in failing to find that the Tribunal was biased, and in failing to find that the Tribunal had not accorded the appellant natural justice.

13. I deal with those two grounds of appeal together because during the hearing it emerged from the appellant’s submissions that each of the grounds of appeal was founded on the same complaint, namely, that the Tribunal made its decision in his absence.  The appellant’s submissions before this Court were confined to repeating the submissions he had made before the Federal Magistrate, namely, that he had been unable to attend the Tribunal because of other pressing engagements.  He did not seek to identify any error in the manner in which the Federal Magistrate had dealt with his complaint that the Tribunal had proceeded to make its decision in his absence.

14. I am satisfied that the Federal Magistrate did not err in dismissing the appellant’s implicit complaint that the Tribunal had fallen into jurisdictional error, in that, it had decided the appellant’s application in the appellant’s absence. The Federal Magistrate considered the appellant’s submissions on this point and concluded that the Tribunal had observed the notification procedures which allowed the Tribunal to proceed under s 426A of the Act, to make a decision in the absence of the appellant. The Federal Magistrate observed that in the submissions that the appellant had made, the appellant did not contend that he had not received the notification of the hearing; rather, the appellant had submitted that he was unable to attend the hearing for other reasons. There was no evidence before the Federal Magistrate that the appellant had notified the Tribunal in advance that he would be unable to attend the hearing on the designated day. Nor did the appellant claim in his submissions before the Federal Magistrate that he had attempted to advise the Tribunal that he would be unavailable to attend the hearing on the designated day. In those circumstances, the Federal Magistrate made no error in failing to find that the Tribunal committed a jurisdictional error in making its decision in the absence of the appellant and, in failing to find that the Tribunal was biased and had not accorded the appellant natural justice.

15. It follows that each of the grounds of appeal in the notice of appeal is dismissed.  The appeal is dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:             25 May 2006

The appellant appeared in person.
Counsel for the Respondent:	Mr A Cox
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	23 May 2006
Date of Judgment:	25 May 2006