SZOVH v Minister for Immigration and Citizenship
[2011] FCA 877
•1 August 2011
FEDERAL COURT OF AUSTRALIA
SZOVH v Minister for Immigration and Citizenship [2011] FCA 877
Citation: SZOVH v Minister for Immigration and Citizenship [2011] FCA 877 Appeal from: SZOVH v Minister for Immigration [2011] FMCA 216 Parties: SZOVH and SZOVI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 488 of 2011 Judge: SIOPIS J Date of judgment: 1 August 2011 Date of hearing: 1 August 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 15 The Appellants did not appear. Counsel for the First Respondent: Mr R White
Solicitor for the First Respondent: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 488 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOVH
First AppellantSZOVI
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
1 AUGUST 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs to be agreed or taxed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 488 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOVH
First AppellantSZOVI
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE:
1 AUGUST 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against the decision of a Federal Magistrate dismissing the appellants’ application for judicial review of the decision of the Refugee Review Tribunal.
It is now 10:40 am and the appellants have not appeared at this hearing. The court officer called the matter outside the Court a few minutes ago but the appellants did not appear in response to that call. In addition, counsel for the first respondent has drawn my attention to a letter which his instructing solicitors sent to the first appellant by express post on 22 July 2011, advising that the hearing would be listed today at 10:15 am at this location. The letter also states:
If you do not attend on this occasion, the respondent will seek orders from the Court that your matter be dismissed and that you pay the Minister’s legal costs of the proceedings.
Accordingly, the circumstances are such that the power of the Court to dismiss the appeal for non-attendance by the appellants, pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and r 36.75 of the Federal Court Rules 2011, is invoked. I exercise that power of the Court and dismiss the appeal on that ground.
However, I would also dismiss the appeal in any event on the merits. The grounds of appeal are the following:
(1)RRT had bias against me and did not make fair decision for my application
(2)I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application
(3)I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China.
The first ground of appeal does not identify any error on the part of the Federal Magistrate. However, it could, on a generous construction, be treated as a complaint that the Federal Magistrate erred in rejecting the first and second grounds of review, as identified by the Federal Magistrate.
The Federal Magistrate treated the appellants’ first ground of review as containing a complaint that the Tribunal was biased or did not conduct a bona fide review. The Federal Magistrate examined whether, on the materials before him, the Tribunal had not undertaken a bona fide review of the delegate’s decision, or was biased.
The Federal Magistrate came to the view that the Tribunal’s decision record showed that the Tribunal had had regard to all the claims which were made by the appellants, had properly taken into account the evidence and had come to the decision which was open to it. Also, the Federal Magistrate found that there was nothing else before him which would cause him to conclude that the Tribunal’s review was anything other than bona fide and conscientious. In my view, the Federal Magistrate did not err in coming to this conclusion.
The Federal Magistrate also had regard to the appellants’ complaint that the Tribunal had doubted their claim without substantive evidence. The Federal Magistrate concluded that it was for the appellants to make their case and it was open to the Tribunal to come to the view that it was not satisfied that the appellants met the criteria for the grant of a protection visa. In my view, the Federal Magistrate did not err. The Tribunal rejected the first appellant’s claim that he feared persecution because he was a Falun Gong practitioner on credibility grounds. It was open to the Tribunal to come to that view. The second appellant’s claim was as a member of the first appellant’s family unit.
As to the second ground of the appellants’ grounds of review, the Federal Magistrate considered the question of whether there had been a denial of procedural fairness. The Federal Magistrate gave consideration to both s 425 and s 424A of the Migration Act 1958 (Cth). The Federal Magistrate concluded that the Tribunal had complied with s 425 in relation to both appellants; and that the circumstances of the case were such that the obligation on the Tribunal under s 424A(1) was not invoked. For the reasons which the Federal Magistrate gave at [15]-[18] of his reasons for decision, I am of the view that the Federal Magistrate did not err.
The second and third grounds of appeal referred to above, should, in my view, be taken together. This is because it appears that these two grounds of appeal complain that the Federal Magistrate did not consider the merits of the appellants’ claims for a protection visa. Insofar as these grounds of appeal make that complaint, the Federal Magistrate did not err in failing to conduct a merits review. The Federal Magistrates Court did not have jurisdiction to conduct a merits review. Grounds two and three of the appeal should be dismissed on that basis.
However, if those two grounds of appeal were to be construed as being a complaint about the way in which the Federal Magistrate dealt with the appellants’ third and fourth grounds of review, as identified by the Federal Magistrate, I would reject that complaint.
In my view, for the reasons which the Federal Magistrate gave at [20], [21] and [22] of his reasons for decision, each of those two grounds of review, was correctly rejected.
Accordingly, I would dismiss all three grounds of appeal.
For the sake of completeness, I observe that I would not have allowed the affidavit of the first appellant, dated 18 April 2011, which was in the appeal book, to have been read. This is because the content of the affidavit did not constitute new evidence and the evidence was, in any event, irrelevant because it went to matters going to the merits of the first appellant’s claim.
For these reasons, the appeal is dismissed on the merits.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 4 August 2011
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