SZIMW v Minister for Immigration and Citizenship

[2007] FCA 1934

FEDERAL COURT OF AUSTRALIA

SZIMW v Minister for Immigration and Citizenship [2007] FCA 1934

SZIMW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1318 OF 2007

DOWSETT J
19 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1318 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIMW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	19 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the appellant pay the first respondent’s costs of the appeal, fixed in the amount of $2,200.

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 1318 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIMW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	19 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a federal magistrate declining to grant relief in connection with a decision of the Refugee Review Tribunal (the “Tribunal”).  The present appellant, a citizen of the People’s Republic of China, arrived in Australia on 13 October, 2005, and on 18 October, 2005, lodged an application for a protection visa.  She claims to have a well-founded fear of persecution for reason of her religious beliefs. 

2. The applicant was, at the time of her application, aged 40 years but nonetheless based much of her claim upon her parents’ experience.  She said that they were persecuted by the Communist Party during the Cultural Revolution because of their religion.  She recalled seeing her parents and friends gathering at their home to read the Bible and for related religious activities.  She recalled the police coming to her home when she was four years of age.  Her parents and other people were taken away, but her parents were released after four days.  They had been tortured.  A month later her whole family was sent to the countryside.  Her parents became farmers and had to report to the local police periodically.  She said that she and her siblings were looked down upon by other people.  They were said to be counter-revolutionists.  Later, the family returned to the city, but her parents were unable to attend religious gatherings. 

3. The appellant claimed that in China, she had organized secret religious gatherings, and that in March 2005 her ex-husband and she were detained at their home because of their underground religious activities.  In order that she be released her ex-husband took responsibility for their conduct and then divorced her.  She said that with the help of a friend, and by paying a lot of money, she acquired a passport and sufficient funds to come to Australia.

4. The Tribunal accepted that she was a Chinese citizen but considered that her mere assertion that she feared persecution for reason of her religious belief did not, of itself, establish such fear.  It considered that she had provided little detail concerning her religious activity or the grounds for her claimed fear.  The information in her visa application concerning her own activities, as opposed to her parents’, was certainly very limited.

5. The Tribunal invited the applicant to appear before it, advising the time and place.  The appellant responded, saying that she wished to attend.  In the event she did not do so.  As a result, the Tribunal was unable to explore her claims or extend to her an opportunity to provide further information.  In the circumstances, given the appellant’s failure to attend, the Tribunal concluded that it was not satisfied on the material before it that her claim was genuine.  It refused her visa application.

6. Before the magistrate, the appellant argued that the Tribunal had failed to carry out its statutory duty, particularly that the Tribunal had made its decision based on information in the file.  She asserted that it was required to provide particulars of the information which was the reason or part of the reason for affirming the decision, and that it had failed to do so.  This appears to have been an attempt to invoke the provisions of s 424A.

7. Counsel for the Minister submitted to the magistrate as follows:

   ‘It is submitted the [appellant] accepted the hearing invitation but did not appear at the scheduled time, date or place of hearing.  In the circumstances, the Tribunal was entitled to proceed to make a decision on the review without taking any further action to enable the [appellant] to appear before it:  section 426A of the Act.  It was not obliged to accept the [appellant’s] claims, and, after the [appellant] failed to attend the scheduled hearing, a decision affirming the delegate’s decision to refuse her a protection visa was the inevitable result … .’

   The magistrate accepted this submission as correct and held that no jurisdictional error had been established.  The magistrate found that the Tribunal had complied with ss 425(1) and 425A and with reg 4.35D.

8. The magistrate concluded at [18]:

   ‘The material contained in the Court Book, in particular the Tribunal decision, clearly demonstrates that the Tribunal observed the requirement to notify the [appellant] about the tribunal hearing.  The Tribunal did not make a positive finding of fact about the [appellant] but rather rejected her claim due to a lack of information.  Neither is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process.  The [appellant’s] claim should be dismissed.’

   This disposed of any argument pursuant to s 424A.

9. By her present notice of appeal the appellant asserts:

   (1)The Tribunal failed to refer to independent information for the consideration of my application.

   (2)The Tribunal failed to carry out its statutory duty.  The Tribunal failed to notify me the reason or part of the reasons for affirming the decision.  The Tribunal failed to consider my application according to S 424A of the Migration Act (1958).

   (3)The Tribunal failed to provide a rational and logical foundation to refuse my application.’

10. Before me the appellant has focused primarily upon the fact that she did not attend the hearing in the Tribunal.  She says that she had every intention of appearing but on the day in question, was unable to find the relevant location.  She said that she searched for five hours but did not find it.  It is not clear when the appellant first made this assertion.  She has not suggested to me that she approached the Tribunal at any time prior to receiving notice of the decision, seeking a new hearing date.  She says that she raised the matter before the magistrate, but he does not mention it in his reasons.  In any event, pursuant to s 426A the Tribunal was entitled to proceed in her absence and did so.  There is no jurisdictional error in this regard.

11. There has been no suggestion that the Tribunal failed to comply with s 425 or s 425A in giving notice of the hearing.  The appellant seeks to rely on s 424A asserting that the Tribunal ought to have provided to her details of the information upon which it proposed to rely in upholding the original decision.  However the Tribunal’s decision was made solely upon the basis that there were insufficient particulars in the file to justify a determination in favour of the appellant.  In those circumstances there was no information which met the description contained in s 424A.

12. The appeal must be dismissed with costs.  I order that the appellant pay the first respondent’s costs of the appeal fixed at $2200.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       6 December 2007

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent did not appear
Date of Hearing:	19 November 2007
Date of Judgment:	19 November 2007