SZKLS v Minister for Immigration and Citizenship [2008] FCA 190 (29 February 2008)

Last Updated: 3 March 2008

FEDERAL COURT OF AUSTRALIA

SZKLS v Minister for Immigration and Citizenship [2008] FCA 190

SZKLS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2175 OF 2007

SIOPIS J
29 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2175 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	SIOPIS J
DATE OF ORDER:	29 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1 The appeal is dismissed.

2 The appellant pay the first respondent’s costs in the sum of $2,000.00.

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 2175 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	SIOPIS J
DATE:	29 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of the People’s Republic of China (China) who arrived in Australia on 16 September 2006.

2 In his application for a protection visa, the appellant claimed to have a well-founded fear of persecution on the basis of his practice of Falun Gong. The appellant claimed that the director of his residential committee investigated his activities and informed the appellant that he should stop practising Falun Gong as he was on "the list" because he had been photographed and that it was only a matter of time before the police came for him. The appellant claimed he was concerned about the persecution he might face but was unable to stop practising Falun Gong.

3 A delegate of the first respondent refused to grant a protection visa to the appellant. The appellant applied for a review of the delegate’s decision to the Refugee Review Tribunal (the Tribunal).

4

On 28 November 2006, the Tribunal wrote to the appellant at the address provided in his application for review and advised him that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 16 January 2007. On 28 December 2006, the appellant returned the Response to Hearing Initiation form indicating he did not wish to attend the hearing.

5 On 16 January 2007, the appellant did not appear before the Tribunal. The Tribunal proceeded to make a decision under s 426A of the Migration Act 1958 (Cth) (the Act) without taking further action to enable the appellant to appear. The Tribunal found the appellant’s claims lacked crucial detail and could not be satisfied that the appellant was a member of a political or religious group in China. The Tribunal stated that given the limited evidence, it was unable to establish the relevant facts. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution within the meaning of the Convention.

Application in the Federal Magistrates Court

6 On 4 April 2007, the appellant sought judicial review of the Tribunal’s decision by filing an application in the Federal Magistrates Court which relied upon the following grounds:

1 Jurisdictional error;

2 The denial of procedural fairness;

3 The Tribunal did not give the appellant a letter "to explain doubts".

7 The Federal Magistrate found that there were no breaches of the Act. There was no jurisdictional error or denial of procedural fairness established and the Federal Magistrate rejected ground one and ground two of the application.

8 In relation to the third ground, the Federal Magistrate found that the reason the Tribunal affirmed the delegate’s decision was that the appellant failed to provide sufficient detail to establish his claim. The Tribunal could not be satisfied on the material before it that the appellant had a well-founded fear of persecution within the meaning of the Convention. The Federal Magistrate found that this assessment of the evidence was not "information" within s 424A(1) of the Act, nor were the Tribunal’s conclusions or observations about the lack of detail provided by the appellant "information" within the meaning of that section. Accordingly, there was no obligation on the Tribunal to seek the appellant’s comment on these matters by sending the appellant a letter under s 424A of the Act. The Federal Magistrate found there was no breach of s 424A of the Act and rejected ground three.

9 The Federal Magistrate dismissed the application.

On appeal

10 On 1 November 2007, the appellant filed a notice of appeal which raised the following grounds:

1 Refugee Review Tribunal had bias against me and did not make fair decision for my application.

2 I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge did not give me a chance to provide more document. The Judge refused my application on my hearing date. It is not fair.

3 I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I am Falun Gong practitioner. I fear to go back.

11 At the hearing of the appeal before me, the appellant declined to make any oral submissions in support of his grounds of appeal. I then required that counsel for the first respondent make full oral submissions in opposition to the appeal and then asked the appellant again whether he wished to make any submissions in respect of what counsel for the first respondent had said in relation to each ground of appeal relied upon. The appellant again declined to make any submissions.

12 As to the first ground of appeal, bias was not a ground of review raised before the Federal Magistrate. The appellant has not put forward any materials to justify the exceptional course of permitting an appellant to raise a matter on appeal which was not before the court below. Accordingly, I do not grant the appellant leave to raise this ground of appeal. In any event, the ground is without substance because there was no extraneous evidence of any bias by the Tribunal or from which bias on the part of the Tribunal could be inferred. The reasons of the Tribunal do not reveal any bias, either actual or ostensible.

13 As to the second ground of appeal, the transcript of the proceeding before the Federal Magistrate is in the appeal book. The transcript shows that the appellant did not attempt to put any further documentation before the Federal Magistrate. Accordingly, there was no refusal by the Federal Magistrate to accept any documentation from the appellant at the hearing. Therefore, I would dismiss this ground of appeal.

14 As to the third ground of appeal, this ground is capable of being construed as a contention that the Federal Magistrate erred in the conclusion to which he came. In my view, the Federal Magistrate did not err. There was no procedural unfairness in not inviting the appellant to a hearing. There was no obligation on the Tribunal to hold a hearing once the appellant had declined the invitation to come to a hearing. Further, there was, for the reasons given by the Federal Magistrate, no obligation on the Tribunal to provide the appellant with a letter under s 424A of the Act. Accordingly, there was no jurisdictional error by the Tribunal.

15 The third ground is also capable of being construed as a complaint that the Federal Magistrate did not revisit the merits of the appellant’s case. There was no error by the Federal Magistrate in declining to do so because the hearing before the Federal Magistrate was not a merits review. Accordingly, the third ground of appeal is dismissed.

16 The appeal is dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated: 29 February 2008

Counsel for the Appellant:	The appellant appeared in person.
Counsel for the First Respondent:	Mr Rohan White
Solicitor for the First Respondent:	Sparke Helmore (Lawyers)
Date of Hearing:	27 February 2008
Date of Judgment:	29 February 2008