SZJPZ v Minister for Immigration & Citizenship

[2007] FCA 838

FEDERAL COURT OF AUSTRALIA

SZJPZ v Minister for Immigration & Citizenship [2007] FCA 838

SZJPZ v MINISTER FOR IMMIGRATION & CITIZENSHIP AND ANOR

NSD442 OF 2007

EMMETT J
9 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD442 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJPZ
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	9 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Appeal be dismissed.

2.The Appellant pay the First Respondent’s costs in the sum of $1400.

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	NSD442 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJPZ
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

9 MAY 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the Peoples Republic of China.  He arrived in Australia on 19 April 2006 and on 8 May 2006 applied for a protection (Class XA) visa under the Migration Act 1958 (Cth). A delegate of the first respondent, then known as the Minister for Immigration, Multicultural and Indigenous Affairs (the Minister), refused to grant the visa on 3 June 2006. On 4 July 2006 the appellant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for a review of the delegate’s decision. The Tribunal affirmed the decision not to grant a protection visa on 15 September 2006.

2. The appellant was notified of the decision on 5 October 2006.  On 2 November 2006 the appellant applied to the Federal Magistrates Court for constitutional writ relief in respect of the decision of the Tribunal. 

3. On 28 February 2007 the Federal Magistrates Court ordered that the application be dismissed with costs.  By notice of appeal dated 21 March 2007, the appellant appealed to the Federal Court of Australia.  The appeal was fixed for hearing today, when the appeal was called on for hearing there was no appearance for the appellant.  The Minister, therefore, asked that the appeal be dismissed. 

4. On 28 July 2006 the Tribunal wrote to the appellant informing him that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.   The Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 30 August 2006.  However, on 29 August 2006 at 4.50 pm the Tribunal received a facsimile purporting to be sent by the appellant saying that his boss had told him that he had to work on the following day but that the appellant would be free on the following Tuesday.  The facsimile asked the Tribunal to postpone the hearing to the following Tuesday.  No facsimile or telephone contact details were provided and the appellant did not attend the hearing on 30 August 2006. 

5. On that day the Tribunal sent a letter by express post to the appellant’s address, in the letter the Tribunal said that it would consider the request for another hearing if certain information was provided as to the nature of the appellant’s work and the reason why his employer required him to work on 30 August 2006.  The letter also requested contact details of the appellant’s supervisor so that the supervisor could be contacted by the Tribunal. 

6. The letter requested that the information be provided by 5.00 pm on 7 September 2006.  However, no response was received by that date or prior to the date of the decision.  In its reasons the Tribunal observed that the appellant had provided a general statement about the mistreatment of Falun Gong practitioners in China and asserted that he is a practitioner.  However, he provided only limited details about his practice and made no claims that any harm had befallen him in China by reason of his alleged practice.  He simply asserted that harm would befall him in the future if he returned.

7. The Tribunal considered the appellant’s application to be devoid of details and lacking in substance.  In those circumstances the Tribunal was not satisfied that the appellant had a well-founded fear of persecution if he returned to China. 

8. In its reasons for the orders made by the Federal Magistrates Court the primary judge considered in some detail the circumstances of the invitation and the operation of the provisions of the Act.  His Honour was satisfied that the Tribunal had complied with s 425 of the Act inviting the appellant to attend a hearing and in doing so within the prescribed time. 

9. The only ground of review specified in the appellant’s application to the Federal Magistrates Court was that the Tribunal’s decision was affected by jurisdictional error insofar as the Tribunal failed to give the appellant an opportunity to appear before the Tribunal.  The particulars were that the Tribunal failed to accede to his request to postpone the hearing.  The primary judge considered that it was not unreasonable for the Tribunal to take the course that it did. His Honour concluded that on the basis of the paucity of the material before the Tribunal that the Tribunal had no choice but to refuse the application.  His Honour concluded there was no jurisdictional error. 

10. The only ground in the notice of appeal is as follows:

    “The applicant contested at the Federal Magistrates Court that the decision made by the Refugee Review Tribunal involves judicial error in that the RRT failed to give the applicant an opportunity to appear before the  Tribunal.  The applicant was asked to attend a hearing on 15 August 2006 but the applicant could not go due to his work commitment.  He asked the Tribunal to postpone the hearing to the next Tuesday.  The Tribunal rejected his claim on no reasonable grounds.  The Federal Magistrates Court failed to deal with the above claims properly.”

11. There appears on the face of it to be no error on the part of the Federal Magistrates Court.  The Federal Magistrates Court dealt in some detail with the contention that the appellant had been denied procedural fairness and properly rejected that contention.  In the circumstances there appears to me to be no substance in the appeal, it is therefore appropriate to accede to the Minister’s application that the appeal be dismissed.  I order the appeal be dismissed.  I order the appellant to pay the first respondent’s costs in the sum of $1,400. 

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

Associate:

Dated:        30 May 2007

The appellant did not appear.
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	9 May 2007
Date of Judgment:	9 May 2007