SZFLA v Minister for Immigration and Citizenship & Anor [2007] FCA 101 (12 February 2007)

Last Updated: 12 February 2007

FEDERAL COURT OF AUSTRALIA

SZFLA v Minister for Immigration and Citizenship & Anor [2007] FCA 101

SZFLA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1721 OF 2006

COWDROY J
12 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1721 OF 2006

BETWEEN:	SZFLA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	12 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the first respondent in the sum of $ 3400.00

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 1721 OF 2006

BETWEEN:	SZFLAAppellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIPFirst RespondentREFUGEE REVIEW TRIBUNALSecond Respondent

JUDGE:	COWDROY J
DATE:	12 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of Federal Magistrate Driver of 22 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 19 November 2004. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection visa to the appellant.

2 The appellant, a citizen of the People’s Republic of China (‘the PRC’) claimed to have a well-founded fear of persecution because he is a Falun Gong practitioner in the PRC and promoted Falun Gong to his family and friends. The appellant claimed that the PRC authorities began to investigate him in March 2004.

3 The appellant arrived in Australia on 3 May 2004 and on 27 May 2004 he lodged an application for a Protection Visa (Class XA) with the now Department of Immigration and Citizenship (‘the Department’). On 21 June 2004 the Minister refused to grant the Protection visa and on 26 July 2004 the appellant applied for a review of the decision.

TRIBUNAL PROCEEDINGS

4 By letter dated 27 July 2004 the Tribunal wrote to the appellant informing him of the receipt of his Application for Review and explained the procedures which would follow. On 13 October 2004 the Tribunal wrote to the appellant advising him that the hearing would take place at Level 29, Pacific Power Building, 201 Elizabeth Street, Sydney, on Wednesday 24 November 2004 at 9.30 am. The letter invited him to attend the hearing and enclosed a Response to Hearing Invitation form. Such letter was forwarded to the address nominated by the appellant as his mailing address, namely 116/422 Pitt Street, Sydney NSW 2000, and also to the address the appellant nominated as his home address, namely 6/66 Eighth Avenue, Campsie NSW 2194.

5 On 17 November 2004 the Tribunal received the Response to Hearing Invitation in which the appellant indicated that he did not wish to attend the hearing. Accordingly, the Tribunal proceeded to hear the application on the evidence before it. By letter dated 22 November 2004 the appellant was advised that the Tribunal would hand down its decision on 9 December 2004. On that date the decision was published and a letter was forwarded to the appellant at his mailing address informing him that his application had been unsuccessful.

6 The Tribunal’s decision was based upon the Department’s file which included the Protection Visa Application and the delegate’s decision record. It established that the appellant was a 51 year old man from the PRC. He claimed to be a member of Falun Gong and that since March 2004 the Chinese authorities allegedly commenced to investigate him and to search for evidence against him. He obtained his passport in 2002.

7 The Tribunal observed that the mere fact a person claimed a fear of persecution does not establish that it was genuine or that it was ‘well-founded’. The Tribunal member noted that it was for the appellant to satisfy the Tribunal that the statutory requirements were satisfied and that the decision-maker was not required to make out a case for an applicant nor to accept uncritically the allegations made by an applicant. The Tribunal member continued:

‘The Tribunal has a number of issues upon which it requires a good deal more detailed evidence before it could be satisfied that the Applicant is in genuine fear of persecution and that there is a real chance that he will be persecuted. On the very limited, formulaic and vague evidence available, the Tribunal cannot be satisfied about the Applicant’s claim that he was a [sic] active member of Falun Gong and that as a consequence of his participation in Falun Gong he came to the adverse attention of the Chinese authorities and that he faces arrest on his return to China by reason of his association with Falun Gong.
Accordingly, the Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention’

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

8 By amended application filed on the Federal Magistrates Court on 6 April 2005 the appellant sought a review of the decision of the Tribunal, claiming that the Tribunal did not consider the chance of persecution if he returned to China as a Falun Gong practitioner; that the Tribunal’s satisfaction that he was not a refugee was not based upon reasoning which provided a rational or logical foundation; that the Tribunal did not observe the Migration Act 1958 (Cth) (‘the Act’) properly in making the decision; and that the Tribunal failed to consider his claims.

9 Driver FM, in dealing with the above claims, noted that the appellant had failed to attend the hearing before the Tribunal and that it was not surprising that the presiding member found that she could not be satisfied on the evidence before her that the appellant had a well-founded fear of persecution. Driver FM said:

‘In short, there was insufficient material before the RRT for it to do anything other than affirm the decision under review. The applicant is mistaken in thinking that the RRT found that he was not a refugee. Rather, the RRT was not satisfied on the material before it that he was a refugee. The evidence supporting that conclusion was the inadequacy of the material provided by the applicant in his protection visa application. The RRT was entitled to reach the conclusion it did on that material.’

GROUNDS OF APPEAL

10 By notice of appeal filed 7 September 2006 the appellant claims the following:

‘1. The Tribunal had bias against me because I could not manage to attend the interview invited by RRT. I was not given another opportunity to explain my case.

2. The Tribunal failed to consider my application according to s.91R of the Migration Act. The Tribunal failed to properly understand my claims.

3. The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a ration or logical foundation for this belief.

4. Federal Magistrates Court failed to consider my application thoroughly.’

SUBMISSIONS

11 The appellant appeared in person, assisted by an interpreter. The appellant had not provided any written submissions and was invited to make oral submissions in respect of each ground of appeal.

12 The appellant claimed that all of the decisions were unfair. With regard to the claim of bias, he said that he did not have any information and did not know how his case was decided. He claimed that he would be persecuted if he returned to the PRC because he practised Falun Gong. He claimed that he had been a member of Falun Gong for ‘about a few years, maybe two or three years’. He said that he did not attend meetings in Australia but sometimes practised to improve his health. He could offer nothing further in relation to the grounds of appeal but added that ‘I just hope that the Court can give me a fair judgment’.

13 When questioned in relation to his non attendance before the Tribunal, the appellant said that he had not received the invitation. When asked how he came to appeal to the Federal Magistrates Court, he answered that his migration agent had made the application. It was pointed out to the appellant that the Application for Review form did not disclose the name of any agent. In response he said that he was assisted by a student. It was then pointed out to the appellant that the Response to Hearing Invitation form had been returned indicating that the appellant did not wish to attend a hearing. The appellant had signed the form but stated that he was not aware of the nature of the form. The appellant acknowledged however that he agreed with the form being returned indicating that he did not wish to attend the hearing.

FINDINGS

14 In his first ground of appeal the appellant claimed that the Tribunal was biased because he could not attend the hearing before the Tribunal. The Court notes that such ground was not raised before Driver FM and accordingly ought not be raised for the first time on appeal: H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348. Further, the fact that the appellant returned the form indicating that he did not wish to attend the hearing renders the first ground of appeal spurious. A claim of bias raises a serious allegation in respect of which there must be specific matters relied upon (see: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43] – [48]; see also Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 per Kirby J at [90]; The Queen v The Commonwealth Conciliation and Arbitration Commission and Others; Ex Parte The Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 553 – 554; The Queen v Watson; Ex Parte Armstrong [1976] HCA 39; (1976) 136 CLR 248). In this instance, the statutory requirements of s 425A of the Act have been satisfied and pursuant to s 426A of the Act the Tribunal was entitled to proceed and make a decision without further action to allow or enable the appellant to appear before it (see: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]).

15 With regard to the allegation that the Tribunal failed to consider his application according to s 91R of the Act, no evidence has been provided and no details exist which satisfy the Court that the appellant was a Falun Gong practitioner, nor that the appellant would suffer persecution if he returned to the PCR because of his alleged membership of Falun Gong. The statement from the Bar table provided today does not satisfy the Court that the appellant is a genuine Falun Gong practitioner, and on the information available before the Tribunal (and Driver FM) it was entitled to find that there was insufficient evidence to support the appellant’s claims; see Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 170 CLR 321 at 355 per Mason CJ.

16 The assertion that the Tribunal ‘failed to properly understand my claims’ is insufficient to establish a ground of appeal. The Tribunal member made the decision to dismiss the application upon the only evidence before her. That evidence did not suggest that the appellant was suffering or would suffer any persecution.

17 As to the third ground of appeal, namely that the Tribunal’s satisfaction that the appellant was not a refugee, was not based on reasoning ‘which provided a ration [sic] or logical foundation for this belief’, no particulars have been provided. Nor has any evidence or particulars been provided of the fourth ground of appeal, namely that Driver FM failed to consider the appellant’s application thoroughly. A reading of the judgment of Driver FM reveals that he carefully considered the appellant’s application and the Tribunal decision before he reached his conclusion that there was no jurisdictional error.

18 Accordingly the Court dismisses each ground of appeal and finds no jurisdictional error in the decision of Driver FM or of the Tribunal.

19 The first respondent has sought an order that the appellant pay the costs of the first respondent in the amount of $3400. As this is within a reasonable range for costs I will make the order sought.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 12 February 2007

Solicitor for the First Respondent:	Clayton Utz
Counsel for the First Respondent	Verity McWilliam
Date of Hearing:	12 February 2007
Date of Judgment:	12 February 2007