SZIKZ v Minister for Immigration and Citizenship

[2007] FCA 1107

FEDERAL COURT OF AUSTRALIA

SZIKZ v Minister for Immigration and Citizenship [2007] FCA 1107

Migration Act 1958 (Cth) s424A

SZIKZ v Minister for Immigration & Anor [2007] FMCA 487 affirmed

SZIKZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 560 OF 2007

HEEREY J
30 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 560 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIKZ
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 Refugee Review Tribunal be joined as the second respondent.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs fixed at $2000.

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 560 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIKZ
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 from a decision of a Federal Magistrate who dismissed an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant a protection visa.  Details of the appellant’s visa application, the decision of the Tribunal and the reasons of the Federal Magistrate are set out in the decision of the Federal Magistrate, SZIKZ v Minister for Immigration [2007] FMCA 487, which is available on the Internet.

2. The appellant is a citizen of the People’s Republic of China.  In his protection visa application he claimed a well-founded fear of persecution on the basis of being a Falun Gong practitioner and an imputed role as a regional head of Falun Gong.  He claimed that his wife became a member in 1996 and he became a member in 1997 after learning about Falun Gong from her.  He claimed his wife was the leading member in their town and had connections with organisations all over the world.  He claimed that in 1999 he organised members for the district for demonstrations and missions in Beijing.  In January 2005 the appellant was detained by police for 10 days.  The police told him that they believed he was the head of Falun Gong in the town.  His wife bribed a government official for his release and obtained a passport and a visa to Australia. 

   The Decision of the Tribunal

3. On 25 November 2005 the Tribunal wrote to the appellant inviting him to attend a hearing on 6 January 2006.  On 5 December the Tribunal received a change of contact details form indicating that the appellant still lived at his residential address but his mailing address had changed.  On 6 December 2005 the Tribunal sent a letter to the appellant at his new mailing address enclosing a copy of the hearing invitation letter.  The earlier hearing letter sent on 24 November was returned to the Tribunal with advice that the appellant no longer lived at that address.  The appellant did not attend at the hearing on 6 January 2006 and did not contact the Tribunal to explain his failure to attend. 

4. The Tribunal was satisfied that it had discharged its obligations to give the appellant an opportunity to appear and made a decision on the material before it.  The Tribunal noted the appellant had only provided a very brief outline of his claims, which amounted to little more than assertions and provided a bare minimum of information regarding his alleged activities in Falun Gong.  The Tribunal was not satisfied on the evidence of the appellant’s claims, including whether he was a member of Falun Gong and whether he had been detained.

   The Decision of the Federal Magistrate

5. Before the Federal Magistrate the appellant claimed the Tribunal failed to carry out its duty under s 424A of the Migration Act 1958 (Cth). He made a number of assertions including that of bias. The Federal Magistrate found that this was a case of the Tribunal being unable to reach the satisfaction required by s 65. There was no jurisdictional error. It was for the appellant to satisfy the Tribunal of his genuineness of his claim and not for the Tribunal to justify its reasons for decision.

   The Appeal to the Federal Court

6. On appeal to this Court the appellant’s notice of appeal asserted that the Tribunal did not believe his claims, that the Tribunal was biased, that the Tribunal failed to consider s 424A and that the Federal Magistrate did not set aside the decision of the Tribunal.

7. In this Court the appellant was not legally represented but was assisted by an interpreter. Through the interpreter the appellant said the Tribunal did not consider his application according to the Act, that it was biased, that it did not understand his application and did not consider it according to s 91R. The appellant also said that the Tribunal denied his claims because of irrelevant considerations, it did not consider his application according to s 424A and he was denied the opportunity to have his application assessed by the Tribunal.

8. In my opinion the Federal Magistrate was correct in dismissing the application for a review for the reasons given. It was for the appellant to satisfy the Tribunal that he was a refugee within the meaning of the Refugees Convention. The complaint as to s 424A does not identify information which attracted the obligation imposed by the provision. The Federal Magistrate was correct in finding that there was no foundation for the allegation of bias.

9. The Court Orders that:

   1.The Refugee Review Tribunal be joined as the second respondent.

   2.The appeal be dismissed.

   3.The appellant pay the first respondent’s costs fixed at $2000.

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 was represented in person
Counsel for the Respondent:	R White
Solicitor for the Respondent:	Sparke Helmore Lawyers
Date of Hearing:	30 July 2007
Date of Judgment:	30 July 2007