SZIYZ v Minister for Immigration and Citizenship [2007] FCA 1679 (29 November 2007)

Last Updated: 3 June 2008

FEDERAL COURT OF AUSTRALIA

SZIYZ v Minister for Immigration and Citizenship [2007] FCA 1679

SZIYZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1385 OF 2007

COWDROY J
29 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1385 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COWDROY J
DATE OF ORDER:	29 NOVEMBER 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 $3000 pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules 1979 (Cth).







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 1385 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COWDROY J
DATE:	29 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant appeals from the decision of Lloyd-Jones FM dated 27 June 2007 which found there was no jurisdictional error in a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal had affirmed the decision of a delegate for the extant Minister for Immigration and Multicultural Affairs (‘the Minister’) to refuse the appellant’s application for a protection visa.

BACKGROUND

2 The appellant, a citizen of the People’s Republic of China (‘the PRC’), arrived in Australia on 25 December 2005. On 30 December 2005 she applied to the extant Department of Immigration and Multicultural Affairs (‘the Department’) for a protection visa. Such application was refused on 7 February 2006.

3 By Application for Review dated 10 March 2006 the appellant applied to the Tribunal for a review of such decision. In a statement attached to her protection visa application and Application for Review, the appellant claimed to have a well-founded fear of persecution as a Falun Gong practitioner. She claimed that she was introduced to the practice by her husband and has been practising Falun Gong for six years. The appellant claimed to have received warnings from the local government and police many times, that she was forced to attend re-educational courses and was ‘treated badly both physically and spiritually’.

4 The Tribunal acknowledged receipt of her application by letter dated 16 March 2006 which was posted to her mailing address.

5 By letter dated 24 March 2006 sent to her mailing address the Tribunal notified the appellant that a hearing would be held on Friday 21 April 2006 and provided details of the time and place for such hearing. A Response to Hearing Invitation form was enclosed. A request was made that such form be returned by 11 April 2006 with any written arguments. The Response to Hearing Invitation form was not returned and there was no evidence of return of the letter of invitation. Accordingly the Tribunal proceeded to deal with the appellant’s application in her absence pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’) and on 4 May 2006 it sent a letter to the appellant informing her that the Tribunal’s decision would be handed down on 25 May 2006. No response was received to such letter.

TRIBUNAL’S DECISION

6 The Tribunal found that the appellant had provided insufficient information to enable it to be satisfied the appellant had a well-founded fear of persecution in the PRC for reason of her belief in or practise of Falun Gong. The Tribunal noted that the appellant had provided few details relating to her practice of Falun Gong, nor of her treatment by the authorities. Further, the Tribunal observed that the appellant had provided no details of any practice by the appellant of Falun Gong in Australia. On the basis of the scant details provided by the appellant, the Tribunal could not be satisfied that the appellant was a Falun Gong practitioner or that she would wish to practise Falun Gong on her return to the PRC.

7 Accordingly the Tribunal was not satisfied that the appellant had suffered persecution or had come to the adverse interest of the authorities. The Tribunal found that the appellant was not a person to whom Australia owed protection obligations under the Refugees Convention.

APPEAL TO FEDERAL MAGISTRATES COURT

8 On 26 June 2006 the appellant filed an Application for Review under s 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court challenging the decision of the Tribunal.

9 The Application for Review sought to quash the Tribunal’s decision on the grounds that the decision involved an important exercise of power conferred by the Act and Migration Regulations 1994 (Cth) (‘the Regulations’); that there was no evidence to justify the making of the decision; and that the appellant risked being gaoled on her return to the PRC. An Amended Application filed on 20 September 2006 reasserted the claim that the Tribunal’s decision involved an important exercise of power conferred by the Act and the Regulations.

10 The appellant appeared self-represented with the aid of a Mandarin interpreter but the appellant provided no written submissions to Lloyd-Jones FM. When invited to make oral submissions she declined to do so.

11 Lloyd-Jones FM found that the appellant had not identified any issue of law as a basis of her Application for Review and that instead she was seeking impermissible merits review. His Honour noted the Tribunal had sought further clarification from the appellant of the issues raised and that the Tribunal’s findings were open to it on the basis of the reasons it gave. It was not apparent that the Tribunal had made any error of law and as such Lloyd-Jones FM dismissed the application.

APPEAL TO THIS COURT

12 By Notice of Appeal filed on 17 July 2007 the appellant appealed to this Court from the decision of Lloyd-Jones FM. The Notice of Appeal claims that the appellant fears persecution as a member of Falun Gong; that the decision involved an important exercise of power; and that the appellant would risk danger if returned to the PRC.

FINDINGS

13 The issues raised by the appellant in the Notice of Appeal repeat the assertions made in the appellant’s application in the Federal Magistrates Court.

14 The Tribunal noted in its decision that no response was received to the hearing invitation and that the appellant did not appear before the Tribunal on the scheduled date. The appellant also did not respond to the letter of notification of the handing down of the Tribunal decision. There was nothing before the Tribunal to indicate that the appellant did not receive the letter of invitation to attend the hearing. It was open to the Tribunal in such circumstances to proceed to make a decision pursuant to s 426A of the Act.

15 Before this Court the appellant appeared unrepresented but assisted by a Mandarin interpreter. She claimed that if she practised Falun Gong in her own country, she would be monitored by the authorities. She claimed that she might possibly be asked to go to the police station and that they would not allow her to join the organisation. She claimed she practised Falun Gong to clear her mind and to know forbearance and compassion. Otherwise the appellant did not make any submissions relating to the Federal Magistrate’s alleged errors.

16 It is clear that in making the claims in the Notice of Appeal the appellant is asking the Court to conduct an impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 27; and Minister for Immigration & Multicultural Affair, Re; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405. The Court has considered the decision of Lloyd-Jones FM and it discloses no apparent error. The Court has also considered the Tribunal’s reasons to ensure that the appellant has been accorded procedural fairness. No error is disclosed and the Tribunal’s finding that the appellant was not a person to whom Australia owed protection obligation under the Convention relating to the Status of Refugees was clearly open to it.

17 There are no grounds raised for judicial review in this appeal and it follows that the appeal must be dismissed.

18 The Minister seeks an order for costs in the amount of $3000. Since this is within a reasonable range the Court will make the order sought pursuant to Order 62 Rule 4 (2)(c) of the Federal Court Rules 1979 (Cth).

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 29 November 2007

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 November 2007
Date of Judgment:	29 November 2007