SZIDK v Minister for Immigration and Citizenship

[2007] FCA 608

FEDERAL COURT OF AUSTRALIA

SZIDK v Minister for Immigration and Citizenship [2007] FCA 608

SZIDK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2180 OF 2006

SIOPIS J
21 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2180 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIDK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	21 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal is joined as second respondent.

2.The title of the first respondent is amended to “Minister for Immigration and Citizenship”.

3.The appeal is dismissed.

4.The appellant is to pay the first respondent’s costs, fixed in the amount of $2,800.

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 2180 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIDK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	21 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against the judgment of a Federal Magistrate of 16 October 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 21 November 2005, handed down on 13 December 2005.

2. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.  The appellant is a citizen of Malaysia.  In his application for a protection visa lodged with the delegate, the appellant claimed to have a well‑founded fear of persecution because of his ethnicity and religion.  The appellant claimed that as a person of Chinese origin living in Malaysia, he suffered discrimination and persecution which involved not having access to good educational opportunities and opportunities for employment.

3. The appellant claimed that the Malaysian government did not care about the welfare of Chinese minorities and that there was no protection by the police.  The appellant also claimed that as a Buddhist he was in a minority whilst the majority of Malaysians were Muslim.  The application was refused by the delegate on 24 August 2005.

4. The appellant made an application for review to the Tribunal on 16 September 2005.  By a letter dated 10 October 2005, the Tribunal invited the appellant to attend a hearing on 21 November 2005.  In the letter, the Tribunal advised the appellant that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in his favour on this information alone.

5. The appellant did not appear at the hearing on the scheduled date. The Tribunal noted that there was no response to the invitation to attend the hearing, and the letter extending the invitation was not returned unclaimed. Pursuant to s 426A of the Migration Act 1958 (Cth) (the Act) the Tribunal proceeded to make the decision without taking further action to enable the appellant to appear. The Tribunal, in its decision, said that the claims that the appellant made about his circumstances were expressed very briefly and lacked crucial details. It concluded by saying that given the limited evidence before it, the Tribunal was unable to establish the relevant facts. The Tribunal could not be satisfied that the appellant had a well‑founded fear of persecution within the meaning of the Convention.

6. On 18 January 2006 the appellant filed an application for judicial review in the Federal Magistrates Court which raised two grounds of review, namely that the Tribunal failed to comply with s 424A(1) and s 425A(1) of the Act.  The Federal Magistrate dismissed the application for judicial review.

7. The appellant filed a notice of appeal in this Court appealing the Federal Magistrate’s decision.  The ground of appeal relied on is, in effect, that the Federal Magistrate erred in failing to find that the Tribunal contravened s 424A(1) of the Act.

8. The relevant finding by the Federal Magistrate was to the following effect:

   [I]n this case it is clear that the application failed because the Tribunal was unable to be satisfied that the [appellant] met the criteria for the grant of a visa on the limited information that the [appellant] had provided to it.  In such circumstances where the applicant fails because of a lack of information, s 424A has no application.  See in particular the case of SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 238 at [11] to [13] per Allsop J.

9. In my view, for the reasons she gave, the Federal Magistrate did not err in determining that, in the circumstances of this case, s 424A had no application.  The appeal is dismissed.

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

Associate:

Dated:       30 April 2007

Counsel for the Appellant:	The Appellant did not appear
Counsel for the  First Respondent:	Mr R Leerdam
Solicitor for the  First Respondent:	DLA Phillips Fox
Date of Hearing:	21 February 2007
Date of Judgment:	21 February 2007