SZJMK v Minister for Immigration and Citizenship

[2007] FCA 643

FEDERAL COURT OF AUSTRALIA

SZJMK v Minister for Immigration and Citizenship [2007] FCA 643

SZJMK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 171 OF 2007

BESANKO J
4 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 171 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJMK
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	4 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

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 171 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJMK
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	4 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from orders made by a Federal Magistrate. The Magistrate made an order under r 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“Federal Magistrates Court Rules”) dismissing the applicant’s application to the Federal Magistrate’s Court on the ground that he was not satisfied that the application had raised an arguable case for the relief claimed. Such an order is an interlocutory order: r 44.12(2) of the Federal Magistrates Court Rules.

2. In his application to the Federal Magistrates Court the applicant sought constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”) in relation to a decision of the Tribunal handed down on 12 September 2006. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant a protection visa to the applicant.

3. In considering whether this is an appropriate case for a grant of leave, I have had regard to the relevant authorities including Niemann v Electronic Industries Ltd [1978] VR 431 and Décor Corporation Pty Ltd  v Dart Industries Inc (1991) 33 FCR 397.

   The facts

4. The applicant is a citizen of China. He was born on 1 June 1974 and is thirty-two years of age. He is married with no children and he gave his occupation as self-employed. He arrived in Australia on 22 February 2006 and on 17 March 2006 he applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa. On 30 March 2006 a delegate of the Minister refused to grant a protection visa to the applicant and on 2 May 2006 the applicant applied to the Tribunal for a review of the delegate’s decision.

5. The applicant claimed that he has been a member of Falun Gong since 1998 and that the movement was banned by the authorities in China in 1999. He claimed that he became a senior member and spent a lot of time on Falun Gong activities. He claimed that in 2003 when organising Falun Gong activities at a friend’s home, the police arrived and the applicant and others were detained for two days and constantly questioned. He was deprived of sleep and had little food. He claims that the group were tortured to make them confess and that he was only released after a relative signed a statement that the applicant would no longer practise Falun Gong. In addition, the applicant’s wife paid a bribe to the police. The applicant claimed that he continued to practise Falun Gong in secret before leaving China to come to Australia.

6. By letter dated 4 July 2006 and sent to the applicant’s last known address, the applicant was invited to attend a hearing of the Tribunal. By letter dated 10 July 2006 the applicant advised the Tribunal that he wished to attend a hearing. The applicant failed to attend a hearing of the Tribunal which had been scheduled for 21 August 2006 and he did not contact the Tribunal to explain his failure to attend. The Tribunal decided to proceed under s 426A of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

7. The Tribunal said that the applicant provided no details or evidence in support of his various claims. It said that it was unable to be satisfied that the applicant suffered persecution in China for his religious beliefs. It was not satisfied that the applicant was a follower of Falun Gong or that he suffered persecution in China because of his religion, or that upon his return to China there was a real chance that he would face persecution by reason of his adherence to Falun Gong or for any other Convention-related reason. The Tribunal said that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

   The Magistrate’s reasons

8. The Magistrate referred to the letter sent to the applicant by the Tribunal and the applicant’s response. He referred to the Tribunal’s reasons. He considered the procedures followed by the Tribunal and its reasons and he said that he was unable to see any arguable ground of jurisdictional error affecting the Tribunal’s decision. He said that the applicant had not filed any evidence to explain why he did not attend the hearing. He referred to an explanation provided by the applicant from the bar table which he said would not in any event give rise to jurisdictional error on the part of the Tribunal.

9. The Magistrate referred to the applicant’s application and amended application. He said that they contained unparticularised allegations of bias, failure to consider claims, breach of s 424A of the Migration Act 1958 (Cth) (“the Act”) and other general criticisms of the Tribunal’s decision. He said that in the absence of particulars, he was “unable to find any arguable substance in any of the contentions in these documents”. The Magistrate said that he was unable to identify any arguable error in the Tribunal’s decision or procedures and that he was not satisfied that the applicant had raised an arguable claim for relief.

   Issues on the application

10. In his proposed notice of appeal, the applicant seeks to challenge the Magistrate’s decision on the following grounds:

    1.        He was not given an opportunity to explain his case.

    2.The Tribunal was biased and did not consider his application for a protection visa according to s 91R of the Act.

    3.The Tribunal did not carry out its statutory duty and it did not notify him of the reason or part of the reasons for affirming the decision. He was not given an opportunity to comment on the reason.

    4.The Tribunal failed to refer to independent information for the consideration of the application.

11. In his oral submissions on the hearing of the application, the applicant repeated these contentions. No particulars of the assertions were provided by the applicant. In my opinion, it is not arguable that the Tribunal was not entitled to proceed in the absence of the applicant. That was the finding of the Magistrate and nothing has been put to me to suggest that that finding was wrong. Nor was anything put to suggest that it is arguable that the Tribunal was biased or that it did not consider the application in accordance with the provisions of the Act. The application before the Tribunal failed because of a lack of details and evidence and there is nothing in the Tribunal’s reasons which suggests that it is arguable that the provisions of s 424A of the Act were enlivened. The applicant has not identified any “independent information” to which the Tribunal did not refer and any circumstances arguably giving rise to a jurisdictional error.

12. The decision of the Magistrate is not attended with sufficient doubt to warrant a grant of leave to appeal and leave should be refused.

    Conclusion

13. The application for leave to appeal is dismissed. I will hear the parties as to the costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:
Dated:        4 May 2007

The Applicant appeared in person.
Counsel for the Respondent:	Ms S Hanstein
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 May 2007
Date of Judgment:	4 May 2007