SZIKB v Minister for Immigration & Citizenship [2007] FCA 194 (20 February 2007)

Last Updated: 2 April 2007

FEDERAL COURT OF AUSTRALIA

SZIKB v Minister for Immigration & Citizenship [2007] FCA 194

SZIKB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1973 OF 2006




DOWSETT J
20 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1973 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	DOWSETT J
DATE OF ORDER:	20 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The name of the first respondent be amended to "Minister for Immigration and Citizenship".
3. The appellant pay the first respondent’s costs 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	NSD 1973 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	DOWSETT J
DATE:	20 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On or about 1 November 2006 the appellant was given notice of today’s hearing. Directions were also given as to the conduct of the matter, including a direction that the appellant file and serve written submissions not later than five clear working days before the hearing. She has not done so. The appellant asserts that she left all matters concerning the conduct of these proceedings to a friend, and that the friend has let her down. Whilst she may have expected assistance from some quarter, she was not entitled to abdicate responsibility for the conduct of the proceedings to somebody else. In practical terms it is inconceivable to think that she did so. Notwithstanding the appellant’s request for an adjournment on that basis, I indicated that the matter must proceed today and extended to her an opportunity to make oral submissions. She has, however, offered little in addition to what is already before the Court.

2 This is an appeal from a decision of a federal magistrate. The appellant applied for a protection visa, the application being lodged on 19 August 2005. On 22 October 2005 a delegate of the first respondent (the "Minister") refused that application. The appellant applied to the second respondent (the "Tribunal") for review of that decision but was unsuccessful. The appellant then applied to the Federal Magistrates Court for relief pursuant to s 39B of the Judiciary Act 1903 (Cth). The rules of that court provide for a "show cause" hearing at which the magistrate may, if not satisfied that the application raises an arguable case for relief, dismiss the application. See r 44.12. That procedure was followed in this case.

3 The appellant now appeals from that decision. The basis of the appellant’s claim to be a person to whom Australia owes protection obligations appears from the magistrate’s decision at [5], [6] and [7] as follows:

‘5. According to the original application, the [appellant] was aged in her mid-thirties and had completed four years of education in Tieling City in Liaoning Province in 1993. She was self-employed as a "sole trader" from 1993 until July 2004. Since that date she has been unemployed, but continued to reside in Tieling City until she left China in July 2005.

6. The [appellant] claims that she became a practitioner of Falun Dafa ("Falun Gong") in 1997 and was active in missionizing Falun Dafa to her friends. She claims that after the Chinese Government began persecuting Falun Dafa members in 1999, some of its leading practitioners in Tieling City were arrested and mistreated. The [appellant] was interviewed by police on 6 February 2000, after which she signed a statement promising that she would not practise Falun Dafa any more. She states that after her release, she kept her religion hidden with only her husband and a close Falun Dafa friend knowing that she had not given it up. However, she was reported to the authorities by business competitors who heard of her secret Falun Dafa practice which led to her arrest on 17 July 2004.

7. The [appellant] claims that she was brutally tortured and sent to the Tieling Penitentiary on 29 July 2004. Her business licence was cancelled and her bank account frozen because the money was suspected of being related to Falun Dafa activities. She claims she spent three months in the penitentiary. Her brother and husband lobbied a powerful government officer working for the Lianoing Provincial Government who arranged her transfer to the Masanjia Penitentiary and then to the Liaoing Police Bureau. On 11 July 2005 this officer arranged for her release and for her to receive a passport with a visa.’

4 On 2 December 2005 the Tribunal wrote to the appellant at her mailing address as shown on the Tribunal application form, informing her that it was unable to make a favourable decision on the information which it held and inviting her to come to a hearing at the Tribunal to give oral evidence and present arguments in support of her claim. It nominated Wednesday, 11 January 2006 at 9 am as the hearing time. The appellant completed a Response to Hearing Invitation indicating both that she did not wish to attend and that she did wish to attend the hearing. In the event, she did not attend.

5 On 16 January 2006 the Tribunal decided the matter in her absence. Relevantly, it observed as follows:

‘It is generally not appropriate to use the term "onus of proof" in connection with administrative decision-making. However, it may be that upon a proper construction of the relevant statutory provisions, a particular benefit claimed by an [appellant] will not be granted, or will be cancelled, if the decision- maker is not persuaded that particular facts exist ... In the context of refugee decision-making, the High Court has emphasised ... that the law requires that the Minister (and this Tribunal standing in the shoes of the Minister on review) must be "satisfied" that a person is a refugee.’

6 The Tribunal then observed that the mere fact that a person claimed to fear persecution for reason of political opinion does not establish the genuineness of the fear, that it is well founded or that it is for reason of political opinion. It then continued:

‘In the present case, the [appellant] has provided only the bare outline of her claims. They amount to little more than the assertion that she was a practitioner of Falun Dafa in China, that she was persecuted by the Chinese Government for that reason and that she was able to obtain her release and to leave the country through her family bribing a powerful government officer. It is unclear, for example, what activities the [appellant] claims to have been involved in after she claims she was first detained in February 2000, when she claims she kept her religion "undersurface". It is likewise unclear what involvement the [appellant] claims to have had with Falun Dafa in Australia, (although she says that local practitioners introduced the religious protection offered by the Australian Government to her).’

7 The Tribunal then recorded that it was not satisfied as to her claims and affirmed the decision not to grant a protection visa.

8 The appellant asserted in her amended application to the Federal Magistrates Court, filed on 7 July 2006, that the Tribunal had failed to carry out its statutory duty. This appears to have meant that the Tribunal made a decision based upon information contained in the Minister’s file and information given to the Tribunal by the appellant, and that it had been obliged to comply with s 424A of the Migration Act 1958 (Cth) (the "Act"). It had not done so. It is also alleged that the Tribunal was biased against her, and that it did not consider her application in accordance with s 91R of the Act.

9 The Tribunal’s responsibility pursuant to s 414 of the Act was to review the original decision. Pursuant to s 424A it was obliged to give to the appellant particulars of any information that it considered would be the reason, or part of the reason, for affirming the decision in question, ensure that the applicant understood why it was relevant and invite her to comment upon it. There is an exception to that requirement where the particular information is information which the relevant applicant provided for the purposes of the application.

10 Given the structure of the Act one might have thought that information provided to the Minister by the appellant in support of the original application for a visa would fall within that exemption. However decisions of the Full Court of this Court establish that only information provided in support of the application to the Tribunal does so. Thus the appellant asserts that the Tribunal ought to have identified to her the information which she had supplied to the Minister and invited her to comment upon it if such information was to be part of its reasons for affirming the Minister’s decision.

11 The magistrate considered that although the Tribunal had clearly referred to the original application it was not correct to say that any of the information provided in the application was the reason, or part of the reason for the Tribunal’s decision. That decision was based on the absence of information. As I have said, pursuant to s 414 of the Act the Tribunal was obliged to review the original decision. That the appellant did not provide further information or appear at the hearing did not excuse the Tribunal from so doing. In performing its statutory duty it looked at the material available to it and found it inadequate. In exercising its jurisdiction it was required to make a decision in place of that made by the Minister pursuant to s 65 of the Act. In the circumstances, not being satisfied as to the veracity of the applicant’s claim, it had no choice but to affirm the decision. The magistrate referred to clear authority of this Court justifying that approach.

12 As to the second ground, alleged bias, the basis of this allegation is not clear. The Tribunal extended to the appellant an opportunity to be heard and when she failed to take advantage of that offer, considered such material as was available to it. The fact that the Tribunal came to a conclusion adverse to the appellant cannot by itself bespeak bias. In the circumstances the magistrate correctly dismissed the assertion of bias. Finally, it was submitted that the Tribunal did not consider the application in accordance with s 91R of the Act. That section is concerned with defining the ambit of the term "persecution". In the circumstances the question of whether or not the appellant had a fear of persecution as there defined did not arise because the Tribunal was not otherwise willing to act upon her claims.

13 In the notice of appeal it is asserted that the appellant was not given an opportunity to explain her case at the Tribunal. That assertion is plainly untenable given that she was invited to attend and did not do so. The point seems not to have been raised before the federal magistrate. Secondly, it is said that the Tribunal was biased against her, ‘and did not consider my application visa based on evidence and materials’. It is absurd that such an assertion should be made, given the appellant’s failure to attend the hearing and the fact that the appellant complains that the Tribunal had reference to such material as was available to it. It is then said that the Tribunal failed to assess the chances of persecution on her return to China. To the extent that it did not do so, that was a result of its refusal to act upon the appellant’s account. It is then said that the magistrate refused to consider her application in detail, ‘believing that there is no jurisdictional error with RRT’. This misconceives the nature of the application to the magistrate. That application could only succeed if jurisdictional error were demonstrated. It is said that the case should be reconsidered at the Tribunal. That, of course, is not a ground of appeal.

14 In the circumstances the appeal must be dismissed. I order that the appellant pay the first respondent’s costs of the appeal. The title of the first respondent will be amended to read "Minister for Immigration and Citizenship".

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 16 March 2007

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	There was no appearance for the Second Respondent
Date of Hearing:	20 February 2007
Date of Judgment:	20 February 2007