SZJQG v Minister for Immigration & Citizenship

[2007] FCA 1886

FEDERAL COURT OF AUSTRALIA

SZJQG v Minister for Immigration & Citizenship [2007] FCA 1886

IN THE MATTER OF SZJQG v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1593 OF 2007

JACOBSON J
16 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1593 OF 2007

BETWEEN:

SZJQG
APPELLANT

AND:

Minister for Immigration & Citizenship
FIRST RESPONDENT

Refugee Review Tribunal
SECOND RESPONDENT

JUDGE:

Jacobson

DATE OF ORDER:

16 November 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   That the appeal be dismissed.

2.   That the appellant pay the cost of the first respondent of the appeal. 

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	1593 OF 2007

BETWEEN:

SZJQG
APPELLANT

AND:

Minister for Immigration & Citizenship
FIRST RESPONDENT

Refugee Review Tribunal
SECOND RESPONDENT

JUDGE:	Jacobson
DATE:	16 November 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the orders of Barnes FM made on 26 July 2007.  Her Honour dismissed an application for review of a decision of the Refugee Review Tribunal signed on 30 August 2006 and handed down on 3 October 2006.  The Refugee Review Tribunal affirmed a decision of a delegate not to grant the applicant a protection visa. 

2. The appellant is a citizen of the Peoples Republic of China.  He arrived in Australia on 22 July 2004 and applied for a protection visa a few days after his arrival. 

3. The delegate refused to grant the visa on 5 August 2004. However a Tribunal differently constituted from the Tribunal, whose decision was the subject of the proceeding before Federal Magistrate Barnes affirmed the delegate’s decision on 1 December 2004. 

4. The appellant then sought review of the Tribunal’s decision by the Federal Court and the Court remitted the matter to the RRT to be determined according to law. 

5. The appellant claimed to have a well-founded fear of persecution on the ground that he is a practitioner of Falun Gung.  He stated that he worked for the Beijing Cheng Company and promoted the idea of Falun Gung to his colleagues.  He claimed that he organised them to participate in the activities of Falun Gung.  He also said that when he went to Beijing to present a petition for the legal status of Falun Gung he was investigated by local authorities because of his activities. 

6. The RRT invited the appellant to give oral evidence at a hearing on 29 August 2006. The appellant advised the RRT that he wanted to give oral evidence but he did not attend the hearing. He provided no explanation to the RRT for his failure to attend and he did not make contact with the RRT about the hearing. Accordingly, the RRT proceeded to make a decision on the review pursuant to s 426A of the Migration Act 1958 (Cth).

7. The RRT’s reasons were short. Reference was made to what the RRT considered to be gaps in the appellant’s evidence.  The RRT recorded that the appellant provided no details of his involvement with Falun Gung and also recorded that the appellant failed to provide details of his current practice of Falun Gung. 

8. The RRT could not be satisfied, on the evidence before it, that the appellant was a Falun Gung practitioner or that he had promoted Falun Gung amongst his work colleagues.  Nor could the RRT accept, on the basis of his unsubstantiated assertions, that he had been investigated by the local authorities prior to coming to Australia.  The RRT concluded by saying: 

   As the Tribunal cannot accept the applicant’s claims on the facts it cannot be satisfied that he has a well-founded fear of persecution for a Convention reason in China.

9. Barnes FM dealt comprehensively with the application for judicial review.  Her Honour recorded and rejected each of the grounds put forward by the appellant. 

10. The first ground was bias.  Apparently as part of this contention the appellant submitted that “full information” provided by him in support of his protection visa was not considered.  Barnes FM came to the view that there was nothing in the material before the court to establish that the RRT failed to consider the information.  She rejected the bias ground referring to well known High Court authority on that issue. 

11. The second ground was that the RRT did not refer to relevant independent information.  Her Honour observed that this was not a case in which the decision turned on such information.  Her Honour also observed, referring to High Court authority, that the RRT does not have a duty to investigate an applicant’s claims in circumstances such as the present.

12. The third ground was that the decision of the RRT was based on assumptions rather than evidence. The final ground was a failure to comply with s 424A of the Migration Act.

13. For the sake of completeness, her Honour dealt with two other points which she disposed of in [17] to [19] of her reasons for judgment. 

14. She then observed that there was nothing in the material before the court to suggest that the RRT failed to comply with any of the relevant procedures under the Migration Act.  Her Honour concluded in [19] by observing that the Act requires the decision-maker to attain a positive state of satisfaction.  She referred to three authorities of Full Courts of the Federal Court which support the proposition that the inevitable result of an applicant’s failure to attend a tribunal hearing will be that the application is to be dismissed.  Her Honour could see no jurisdictional error in the decision of the RRT. 

15. The notice of appeal raises three grounds.  The first is bias on the part of the RRT.  This must be rejected for the reasons given by the learned Federal Magistrate. 

16. The second ground is that the RRT failed to assess the appellant’s chance of persecution on his return to China.  Barnes FM was of the view that the RRT considered all of the appellant’s claims.  The RRT could not satisfy itself that the appellant had a well-founded fear of persecution. There is no error in the finding of the learned Federal Magistrate that the RRT did not have a duty to investigate the appellant’s claims in the circumstances of the present case. 

17. The third ground is that the RRT failed to provide a rational and logical foundation to refuse the application.  This point does not appear to have been raised before the learned Federal Magistrate, however there is no substance in the point.  Her Honour’s observation about the authorities which deal with the consequences of an appellant’s failure to attend a tribunal hearing adequately dispose of the assertion that the RRT’s decision was not based on rational or logical grounds. 

18. It follows from what I have said above that I can see no error in the decision of the learned Federal Magistrate.  The appeal must be dismissed. 

19. I should add that the appellant appeared before me this morning without legal representation.  He was assisted by a Mandarin interpreter.  He did not say anything in support of the appeal.  He told me that he had not prepared for the appeal and that he did not know what to say.  Correspondence appearing in the court file and acknowledgements made by the appellant from the bar table satisfy me that the appellant had sufficient time to adequately prepare for the hearing. 

20. The orders then that I will make are:

    (1)       That the appeal be dismissed.

    (2)       That the appellant pay the cost of the first respondent of the appeal. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             29 November 2007

The Appellant was self-represented.
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	16 November 2007
Date of Judgment:	16 November 2007