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Federal Court of Australia |
Last Updated: 1 March 2006
FEDERAL COURT OF AUSTRALIA
SZEPM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 144
Migration Act 1958 (Cth) ss 36(2), 424A, 426A
NAST v
Minister for Immigration and Multicultural and Indigenous Affairs (2004)
FCAFC 208
SZBKB v Minister for Immigration and Multicultural and
Indigenous Affairs (2005) FCA 1811
SZEZI v Minister for Immigration
and Multicultural and Indigenous Affairs (2005) FCA 1195
VAF v
Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206
ALR 471
SZEPM
v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS &
REFUGEE REVIEW TRIBUNAL
NSD 2146 OF 2005
13
FEBRUARY 2006
BENNETT J
SYDNEY
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SZEPM
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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AND:
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REASONS FOR JUDGMENT
1 The appellant claims to be a citizen of the People’s Republic of China and a Falun Gong religious leader and follower. She claims that if she were to return to China, she would be targeted and persecuted for her leadership role in the practice of Falun Gong in China and in Australia.
2 On 21 July 2004, the Refugee Review Tribunal (‘the Tribunal’) sent a letter to the appellant. The letter commenced by informing the appellant that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on this information alone. The letter invited the appellant to attend a hearing. She did not appear before the Tribunal on the nominated day and the Tribunal made a decision affirming the decision of a delegate of the first respondent not to grant her a protection visa.
3 When the application for review of the Tribunal decision came before the Federal Magistrates Court, Federal Magistrate Emmett held that the requirements that would allow the Tribunal to proceed in its decision, in the absence of the appellant and without taking further action pursuant to section 426A of the Migration Act 1958 (Cth) (‘the Act’), had been met. No ground of appeal in respect of this finding is raised in the amended notice of appeal. No error is apparent in her Honour's reasons.
4 When the matter came before me this afternoon, the appellant appeared in person assisted by an interpreter. I asked her if there was anything she wished to say in support of her appeal and she said it was up to the Court to decide. I directed her to the grounds in her amended notice of appeal and asked her if she could add anything to the matters raised therein. She was unable to do so. No written submissions were filed in support of the appeal.
5 The amended notice of appeal asserted that the appellant needed time to engage legal advice. There is no evidence of this or of any steps taken to date.
6 Ground two of the amended notice of appeal asserts without particularisation that the Tribunal misapplied the law. It also asserts that the appellant was unable to attend the hearing due to unspecified ‘serious problems’, of which there is no evidence. It does not raise a proper ground of appeal.
7 One of the grounds of appeal, ground 4, refers to ‘hard evidence’ that was to be transferred from China to Australia, and says that the appellant should be given the ‘benefit of doubts’ and that her written and oral claims ought to be treated as evidence. This either impermissibly raises merits review or refers to claims that are not in evidence and not apparent. No further particulars were given by the appellant today. The claims said not to have been addressed by the Tribunal have not been made out, or indeed referred to by the appellant today. This ground does not establish jurisdictional error on the part of the Tribunal.
8 Ground 3 asserts that ‘[m]any of my important claims were not considered and assessed carefully when the decision was made by the RRT.’ Again, there is no particularisation and the appellant was unable to identify any such claims.
9 As I read the Tribunal decision, the claims made by the appellant were considered. The Tribunal noted that all that had been presented to the Tribunal was the bare allegation that the appellant is a Falun Gong member. As she did not attend the hearing, the Tribunal stated there was no means of testing the veracity of her claims. The Tribunal also referred to her claim that she was one of the key leaders in the Falun Gong movement in Ti Ling. It identified some of the matters that were absent from her claim and found it implausible that a person such as she claimed to be would have been allowed back into employment as she had stated. The Tribunal said ‘perhaps if she had attended, she would have been able to provide the Tribunal with more information and clarified her allegations.’
10 As the Tribunal said ‘the central claim of the [appellant] is that she is a Falun Gong practitioner and fears persecution if she returns to China.’ The Tribunal was not satisfied that she is a Falun Gong practitioner or that she had suffered persecution as a result of her membership of Falun Gong. As Federal Magistrate Emmett observed unless the Tribunal was satisfied that the appellant met the criteria in section 36(2) of the Act, it was obliged to affirm the decision to refuse her a protection visa. The Tribunal made it clear that there were matters as to which it was not satisfied. As in NAST v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 208 at [4] – [5], it was not inappropriate or in error for the Tribunal to want an explanation of these matters.
11 With respect to the Tribunal's obligations under section 424A of the Act, Mr Mitchell, who appears for the first respondent, submits that the information contained in the application for a protection visa, was not part of the reason for affirming the decision under review. Specifically, he submits that the reason for the Tribunal decision was the inadequacy of the material provided to the Tribunal and the fact that it could not test the veracity of the claims made by the appellant. He submits that inadequacy of an applicant's claim is not "information" for the purpose of section 424A. He also submits that the references to the application for the protection visa were merely the subjective appraisals of the inadequacy of the material provided and the implausibility of the claims made. He submits that the subjective appraisals of the material do not constitute information for the purpose of section 424A for the reasons set out in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24], SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1195 at 29 and SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1811 at [16]- [18] and [28]-[32]. I agree with those submissions.
12 Accordingly, there has not been a failure on the part of the Tribunal to comply with section 424A(1) of the Act. The appellant has not established that there was jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate. It follows that the appeal should be dismissed.
Associate:
Dated: 13 February 2006
The Appellant
appeared in person with the assistance of an interpreter.
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Counsel for the Respondent:
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J Mitchell
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Solicitor for the Respondent:
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Phillips Fox
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Date of Hearing:
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13 February 2006
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Date of Judgment:
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13 February 2006
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/144.html