SZJBB v Minister for Immigration and Citizenship

[2007] FCA 285

FEDERAL COURT OF AUSTRALIA

SZJBB v Minister for Immigration and Citizenship [2007] FCA 285

SZJBB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2426 OF 2006

MARSHALL J
6 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2426 OF 2006

BETWEEN:

SZJBB
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	6 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to read Minister for Immigration and Citizenship.

2.The Refugee Review Tribunal is added as the second respondent.

3.Leave to appeal is refused, 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 2426 OF 2006

BETWEEN:

SZJBB
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	6 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies for an extension of time within which to file and serve a notice of appeal from a judgment of a Federal Magistrate published on 14 November 2006. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal.

2. The applicant is a citizen of the People’s Republic of China.  Before the Tribunal, the applicant claimed to have well-founded fear of persecution as a Falun Gong practitioner and political dissident.  The applicant feared arrest, detention and persecution in China.  He claimed that his house was ransacked and surrounded by members of the Public Security Bureau (‘PSB’) and that two members of his group were interrogated and investigated. 

3. The Tribunal wrote to the applicant advising him that it could not make a decision favourable to him on the material before it and inviting him to attend the Tribunal and give oral evidence.  The Tribunal informed the applicant that if he did not attend the hearing, a decision might be made, without giving him a further opportunity to present material to it.  The applicant did not attend the Tribunal hearing. The Tribunal made a decision on the evidence before it.

4. The Tribunal found the applicant’s claims lacking in detail, especially as he did not provide any details of his practice of Falun Gong, of his dissident political opinion or on whether he had voiced those opinions in public.  The applicant had not provided any details of when the alleged attack on his house by the PSB occurred, the two persons taken away for interrogation and investigation, or concerning his practice of Falun Gong since arriving in Australia.  The Tribunal was unable to make findings of fact in relation to the applicant’s claims and was therefore unable to find that the applicant had a well-founded fear of persecution for a Convention reason.

5. Before the Federal Magistrate, the applicant claimed that he would suffer persecution for a Convention reason if returned to China.  The grounds in support of his application for judicial review included that the Tribunal failed to understand his claims; failed to consider relevant matters; that he was misled by his migration agent and did not attend the Tribunal hearing. He also alleged that the Tribunal refused to grant him a protection visa without proper grounds or proper investigation.

6. The Federal Magistrate found the applicant did not provide any telephone contact numbers or nominate anyone as his adviser on the application for review to the Tribunal, although the Federal Magistrate did note that a migration adviser had completed the interpreter’s declaration. 

7. The applicant told the Court below that he had relied on a migration agent to do everything for him and what she wrote in his application was not consistent with his experience.  The applicant said that he was not a Falun Gong practitioner but had helped

   
   

   Falun Gong people keep their books after the crackdown.  He said that his brother-in-law was arrested for distributing Falun Gong pamphlets. 

8. The Federal Magistrate found the Tribunal’s decision to be free from jurisdictional error. The Tribunal had summarised the applicant’s claims, understood what his claims were and its findings were open to it for the reasons it gave, according to the Court below.  The applicant had been put on notice by the Tribunal that it could not reach a decision favourable to him.  There was no evidence that the applicant had been misled or wrongly advised by his migration agent and this, in any event, did not constitute jurisdictional error.

9. There was no obligation on the Tribunal to conduct its own enquiries, the onus lies on the applicant to make out his claims (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs at [2006] HCA 63 at [40]).  The applicant did not attend the Tribunal hearing. The consequence was the rejection of his application.  Although the applicant was not legally represented, the Court below considered the reasons of the Tribunal and was unable to discern jurisdictional error in the Tribunal’s decision.

10. The applicant filed his application for an extension of time on 13 December 2006, only about one week out of time. Accompanying that application was an affidavit annexing a draft notice of appeal which raised grounds alleging that the Tribunal breached s 424A of the Migration Act 1958 (Cth), failed to assess the claims according to s 91R of the Act and further that the Federal Magistrate did not fully consider the application.

11. The applicant did not appear and his material before the Court did not explain the short delay, however I do not consider that factor critical in refusing his application. What I do consider critical is the fact that his proposed appeal has no prospect of success because the judgment below is free from doubt. In any event no substantial injustice would arise from the failure to grant leave as I agree with the Federal Magistrate that the decision of the Tribunal is not attended with jurisdictional error. The application is dismissed with costs. The name of the Minister is regularised and the Tribunal is added as a respondent in accordance with the judgment of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        7 March 2007

The Applicant did not appear.
Counsel for the First Respondent:	Ms A Nanson
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	6 March 2007
Date of Judgment:	6 March 2007