SZKJY v Minister for Immigration and Citizenship [2008] FCA 110 (19 February 2008)

Last Updated: 3 April 2008

FEDERAL COURT OF AUSTRALIA

SZKJY v Minister for Immigration and Citizenship [2008] FCA 110

SZKJY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2169 OF 2007

STONE J
19 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2169 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	STONE J
DATE OF ORDER:	19 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. 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 2169 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	STONE J
DATE:	19 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of a Federal Magistrate in which His Honour dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal; [2007] FMCA 1717.  The Tribunal rejected the appellant’s application for a protection visa. 

2 The appellant is a citizen of the People’s Republic of China and claims to have a well-founded fear of persecution by the Chinese authorities because of her involvement with Falun Gong. She claimed that her practice of Falun Gong brought her to the attention of the authorities and that she had been advised by the director of her residential committee that her name was on a list of people to be visited by police. The appellant claimed she was aware of the killing of Falun Gong members and decided to leave for Australia with her son.

3 On 29 November 2006 the Tribunal wrote to the appellant advising that it was not able to make a decision in her favour on the basis of the material that she had provided and inviting her to attend a hearing on 23 January 2007. The appellant responded on the form provided that she did not wish to come to the hearing by ticking the box next to which were the following words:

NO, I/we do not want to come to a hearing

I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.

4 In its decision, the Tribunal stated that the appellant had consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow her to appear before it. It therefore proceeded to decide the matter on the evidence available to it.

5 The Tribunal found that the appellant had provided little detail and evidence to support her claims and the Tribunal was not satisfied by the information it had before it that the appellant was a Falun Gong practitioner. Given the lack of detail in the appellant’s claims, their general nature and the fact that the Tribunal had not been able to test their veracity, it was unable to be satisfied that the claims had been made out. The Tribunal was not satisfied that the appellant had a real chance of harm or a well-founded fear of persecution for reason of religion or any other Convention reason and therefore it rejected the appellant’s application for a protection visa.

6 On 21 March 2007 the appellant filed an application in the Federal Magistrates Court for judicial review of the Tribunal’s decision. The Federal Magistrate found the Tribunal had complied with its statutory duties in relation to the hearing and the sending of the invitation letter. His Honour held that the Tribunal was entitled to exercise its discretion to proceed to a decision pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’). In the alternative, his Honour was of the view that when the appellant consented to the Tribunal proceeding to make a decision without her appearing before it, the Tribunal’s obligation in relation to s 425(1) of the Act was discharged.

7 The Federal Magistrate was unable to discern any jurisdictional error or denial of procedural fairness or breach of the Act. In particular, his Honour addressed a contention by the appellant that she was represented by a migration agent at the Tribunal stage (even though she did not indicate that was the case at the time), and that she did not attend the hearing because her agent informed her that she could either choose to attend or not attend - the implication presumably being that failure to attend would not prejudice her application.

8 His Honour found no evidence of fraud on the part of any migration agent who might have acted for the appellant such as might affect the exercise of the Tribunal’s jurisdiction. Accordingly, the application was dismissed.

9 By notice of appeal filed on 1 November 2007 in this Court the appellant appeals from the decision of the Federal Magistrate on three grounds: that the Tribunal was biased against her and did not make a fair decision on her application; that the Federal Magistrate failed to provide her with a chance to provide more documents; and that the Federal Magistrate failed to consider the application reasonably.

10 At the hearing of the appeal before me the appellant was not able to make any meaningful submissions in support of her appeal. She said that she did not want to be returned to China this year because of the Olympic Games and asked to be allowed to stay in Australia. I explained that the Court has no power to decide the length of time she is permitted to remain in Australia.

11 The appellant has not provided any evidence of bias on the part of the Tribunal nor has she provided any evidence or particulars in support of her contention that the Tribunal did not make a fair decision. An allegation of bias is a very serious matter and must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 531. No details of the alleged bias were proferred at the hearing of the appeal and no allegation of bias was made at the hearing before the Federal Magistrate. The appellant requires the leave of the Court to raise a new ground of review in this appeal. As I do not consider that this ground of appeal has any prospect of success I decline to grant that leave.

12 The appellant did not provide any evidence in relation to her allegation that the Federal Magistrate did not give her the chance to produce more documents. The appellant said that she requested that the documents, which concerned her relations with the Falun Gong movement, be sent from China last year but that they had not yet arrived. I explained that additional factual evidence in support of her claims could not be considered by the Federal Magistrate or in this Court. In any event, there is no indication in the Federal Magistrate’s reasons that the appellant had requested the opportunity to provide more documents or did so at the hearing. This ground must also be rejected.

13 I have reviewed the decision of the Federal Magistrate and am satisfied that his Honour did reasonably consider the appellant’s application. This ground of appeal amounts to nothing more than an application for review on the merits and cannot succeed.

14 There being no error of law discernable in either the decision of the Tribunal or that of the Federal Magistrate, the appeal must be dismissed with costs.

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

Associate:
Dated: 19 February 2008

Counsel for the Appellant:	The appellant appeared in person.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	19 February 2008
Date of Judgment:	19 February 2008