SZHTH v Minister for Immigration and Citizenship
[2007] FCA 1196
•8 August 2007
FEDERAL COURT OF AUSTRALIA
SZHTH v Minister for Immigration and Citizenship [2007] FCA 1196
SZHTH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 900 OF 2007STONE J
8 AUGUST 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 900 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHTH
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
STONE J
DATE OF ORDER:
8 AUGUST 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is 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 900 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHTH
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
STONE J
DATE:
8 AUGUST 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of the People’s Republic of China who arrived in Australia on 30 September 2004. On 11 October 2004 the appellant lodged an application for a protection visa. The application was refused in turn by a delegate of the first respondent and the Refugee Review Tribunal. An application for review was dismissed by a Federal Magistrate on 2 May 2007; [2007] FMCA 773. The appellant now appeals from his Honour’s decision.
In his protection visa application, the appellant claimed to be a Falun Gong practitioner and a leader of the movement in his city. He claimed to have been detained for almost three months by the police, tortured in detention, and forced to declare a separation from Falun Gong. The appellant claimed that he continued to practise Falun Gong, in secret, and that the police gave him warnings and visited his home and work frequently. He claimed that he left China as a result of hearing that the police were planning to gaol him for two years.
On 6 September 2005 the Tribunal notified the appellant that, on the material before it, it was unable to make a decision in his favour and invited the appellant to attend a hearing on 5 October 2005. This letter was sent to the appellant’s mailing address as provided in his application for review and which was also indicated as his address for service. The appellant did not respond to this invitation. The Tribunal noted that the letter had not been returned unclaimed, that no authorised recipient had been provided and no telephone or facsimile numbers had been provided in relation to his review application. The appellant did not appear at the hearing and the Tribunal proceeded, pursuant to s 426A of the Migration Act 1958 (Cth), to determine the application.
The Tribunal was not satisfied that the appellant’s claims about his involvement with Falun Gong were true. It found his claims of involvement in Falun Gong were vague and generalised and lacked any reference to the principles of the movement. The Tribunal noted that there was nothing to indicate that since his arrival in Australia the appellant had practised Falun Gong in Australia or had any contact with the movement. It also commented that the appellant’s claims to have suffered harm in China were brief, unsubstantiated and vague. The Tribunal noted that it would liked to have explored a number of issues with the appellant had he attended the hearing and expected the appellant to have provided more details. Given the paucity of the evidence available to it, the Tribunal held that it was not satisfied the appellant faced a real chance of harm amounting to persecution and affirmed the delegate’s decision not to grant the visa.
Before the Federal Magistrate, the appellant claimed that the Tribunal’s decision involved an error of law. At the hearing the appellant stated that his friend made the application to the Tribunal on his behalf and that his friend had left for China so that when he received the letter from the Tribunal inviting him to an interview he did not understand it. His Honour observed that this was unfortunate but could not undermine the Tribunal’s decision. The Federal Magistrate found no jurisdictional error in the Tribunal’s decision that it could not reach the level of satisfaction required by s 65 and therefore dismissed the application for review.
The notice of appeal filed in this Court alleged that the Tribunal failed to carry out its statutory duty, that the decision was an important exercise of the power conferred by the Migration Act and Regulations and that there was no evidence to justify the decision made by the Tribunal. It did not take issue with the Federal Magistrate’s decision. At the hearing of the appeal the only submissions made by the appellant related to his dissatisfaction with the Tribunal’s finding on the merits. Such submissions can have no bearing on the outcome of the appeal.
As I said to the appellant during the hearing I am mindful of the difficulties that unrepresented litigants confront in challenging decisions made by the Tribunal. Accordingly, I have examined the reasons of the Tribunal and of the Federal Magistrate for myself. I can find no apparent error in the reasons of the Tribunal. The Tribunal, on the material before it, could not achieve the state of satisfaction required by s 65. That is the sole reason for its decision, and it is a conclusion clearly open to it. No statutory duty has been neglected. No power has been improperly exercised.
I see no error in the decision of the Federal Magistrate and therefore the appeal should be dismissed with costs.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate:
Dated: 9 August 2007
Counsel for the Appellant: The appellant appeared in person, assisted by an interpreter Solicitor for the Respondent: Clayton Utz Date of Hearing: 8 August 2007 Date of Judgment: 8 August 2007
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