SZHMA v Minister for Immigration and Citizenship

[2007] FCA 1106

FEDERAL COURT OF AUSTRALIA

SZHMA v Minister for Immigration and Citizenship [2007] FCA 1106

Migration Act 1958 (Cth) s 424A

SZHMA v Minister for Immigration and Citizenship [2007] FMCA 370

SZHMA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 609 OF 2007

HEEREY J
30 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 609 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHMA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	30 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant 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 609 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHMA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE:	30 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a decision of a Federal Magistrate who dismissed an application for review of a decision of the Refugee Review Tribunal.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant a protection visa.  Details of the appellant’s application, the decision of the Tribunal and the reasons of the Federal Magistrate set out in the Federal Magistrate’s decision, SZHMA v Minister for Immigration and Citizenship [2007] FMCA 370, which is available on the internet.

2. The appellant is a citizen of the People’s Republic of China.  She claimed to have a well‑founded fear of persecution as a Falun Gong practitioner and fears facing gaol and possibly torture on her return to China.  She claimed to have been dismissed from employment at a steel factory in 1993 and lived off her husband’s income.  She claimed to have started practising Falun Gong in 1998.

   The Decision of the Tribunal

3. On 11 September 2003 the Tribunal sent a letter to the appellant notifying her of a hearing on 3 November 2003.  The letter was sent to the appellant’s authorised recipient.  A copy of the letter sent to the appellant’s residential address was returned unclaimed on 17 September 2003.  On 30 October the Tribunal contacted the authorised recipient who informed the Tribunal he had not been able to contact his client and did not think she would attend the hearing.  The appellant did not appear before the Tribunal on the scheduled date.

4. The Tribunal noted questions it would have asked the appellant if she had appeared including her employment history, her knowledge of the Falun Gong, her fears on return to China and the substance of country information relating to Falun Gong.  However, lacking the opportunity to do so, the Tribunal could not be satisfied on the evidence that the appellant was a Falun Gong practitioner in the past or would be in the future. 

   The Decision of the Federal Magistrate

5. The grounds of appeal to the Federal Magistrates Court were that the Tribunal failed to notify the appellant of the hearing and proceeded in the absence of the appellant, breached s 424A of the Migration Act 1958 (Cth) with regard to country information, asked itself the wrong question, incorrectly applied the test of refugee status, failed to ask appropriate questions and to appropriately categorise the basis of the appellant’s persecution. It was argued that the Tribunal improperly exercised its power by taking account of irrelevant considerations such as the country information and failed to take into account relevant considerations such as independently investigating the appellant’s situation. It was also said the decision was so unreasonable that no reasonable decision-maker could make it. It was said that there was a breach of the rules of natural justice and/or procedural fairness as the appellant was not provided with an opportunity to comment on information and the appellant was not given the opportunity to be heard. The Federal Magistrate rejected those grounds for reasons set out in the decision.

   The Appeal to the Federal Court

6. In this Court the notice of appeal alleged: 

   1.that the Tribunal failed to give natural justice in that it failed to ask appropriate questions and to appropriately categorise the basis of the appellant’s convention based persecution;

   2.that the Tribunal’s decision involved jurisdictional error affecting the decision which is subject to this application in that it misinformed itself of the particular circumstances of the appellant and indirectly applied the test. 

7. The appellant was not represented but was assisted by an interpreter.  She said that although the Federal Magistrate gave her “some chance” she did not have a chance to talk about the errors in the earlier decision.  She said the Federal Magistrate did not consider her application “according to legal procedures”.

8. I can see no error in the decision of the Federal Magistrate.  The appellant had properly been notified of the Tribunal hearing.  I agree with the Federal Magistrate for the reasons he gave that the Tribunal, thereafter, did not fall into any legal error in the way it dealt with the appellant’s application.  It was for her to satisfy the Tribunal that she had a case which brought her within the Convention Relating to the Status of Refugees (1951).

9. The appeal is dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice HEEREY.

Associate:

Dated:        30 July 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	J Pownall
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 July 2007
Date of Judgment:	30 July 2007