SZHMC v Minister for Immigration and Citizenship

[2007] FCA 730

FEDERAL COURT OF AUSTRALIA

SZHMC v Minister for Immigration and Citizenship [2007] FCA 730

Migration Act 1958 (Cth) ss 91R, 424A

SZHMC v MINISTER FOR IMMIGRATION AND CITIZENSHIP & REFUGEE REVIEW TRIBUNAL
NSD 458 OF 2007

DOWNES J
16 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 458 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHMC Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	16 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS:

1.The Refugee Review Tribunal is joined as a Second Respondent.

2.Appeal dismissed with 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 458 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHMC Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	DOWNES J
DATE:	16 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is from the People’s Republic of China.  He is aged 39 years.  He arrived in Australia in March 2005.  He applied for a protection visa, claiming a well-founded fear of persecution within the Refugees Convention on the ground of his religion as a Christian.  His application was refused on 6 May 2005.  He sought review by the Refugee Review Tribunal.  The Tribunal notified the appellant that it was unable to make a decision in his favour on the material before it and invited him to come to a hearing and give oral evidence.  The appellant did not return the Response to Hearing Invitation and failed to attend the Tribunal hearing on the scheduled day and time.  On 19 September 2005 the Tribunal affirmed the decision not to grant a protection visa.

2. The Refugee Review Tribunal, constituted by Mr Bruce MacCarthy, was not satisfied that the appellant is or was a Christian.  The appellant’s only evidence was a short statement that the Tribunal described as brief and vague.  The appellant claimed that members of his church were placed on a “black list” in 2003 and that in November of that year he was detained by police.  The Tribunal concluded that it was “not satisfied that the appellant would be adversely regarded by the PRC authorities or anyone else in China, were he to return there in the reasonably foreseeable future”.

3. The appellant appealed to the Federal Magistrates Court.  His application was dismissed on 5 March 2007.  He appeals to this court against that decision.

4. The notice of appeal contains two grounds.  The first ground is that the Tribunal was biased.  This is a serious allegation and should not lightly be made.  The appellant has given no particulars of his claim and I find that it is without foundation. 

5. The second ground is that the Tribunal failed to comply with s 424A of the Migration Act. No relevant information claimed not to have been disclosed is specified. The Tribunal’s reasons were based solely on the appellant’s own evidence. This information falls within the exception in s 424A(3)(b). In a number of recent appeals, appellants have claimed a failure to comply with s 424A because the Tribunal did not furnish them with the draft text of its proposed reasons to enable the appellant to respond. These claims involve a misconception of s 424A. The section requires specific information to be made available in the circumstances set out in the section. It is, accordingly, information which may be relied upon and not the reasons themselves which must be disclosed. Moreover, the information required to be disclosed is limited. There is no such information in the present case. Accordingly, the second ground of appeal must fail.

6. In the hearing this morning a written document prepared by the appellant was read to me by the interpreter. In addition to the claims of bias and the claim that there was a breach of s 424A, that document also contained a claim that the provisions of s 91R had not been followed. No particulars were given of that claim. I am not aware of any basis in the reasons of the Tribunal or the Federal Magistrates Court which would support a claim that the provisions of s 91R had not been followed.

7. I have read the reasons of Raphael FM which deal with similar arguments and I agree with those reasons.  Accordingly, the appeal must be dismissed and will be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes

Associate:
Dated:  23 May 2007

Counsel for the Appellant:	The Appellant appeared in person with the assistance of a Mandarin interpreter
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	16 May 2007
Date of Judgment:	16 May 2007