FEDERAL COURT OF AUSTRALIA

SZHZB v Minister for Immigration and Multicultural Affairs [2006] FCA 547

SZHZB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

NSD 395 OF 2006

STONE J

9 MAY 2006

SYDNEY

THE COURT ORDERS THAT:

1.      The Refugee Review Tribunal be added as the second respondent in this proceeding.

2.      The application for leave be dismissed.

3.      The applicant pay the first respondent’s costs of this application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 9 February 2006 Federal MagistrateDriver dismissed the applicant’s application for judicial review of a decision of the Refugee Review Tribunal handed down on 6 December 2005, holding that it disclosed no arguable case.  The Tribunal had affirmed a decision of the delegate of the first respondent refusing to grant the appellant a protection visa.   His Honour’s order was made pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) and is clearly interlocutory; Rana v University of South Australia [2005] FCA 559.  Pursuant to s 24(1A) of the Federal Court Act 1976 (Cth) the applicant requires leave to appeal from this decision. 

2                     The applicant is a citizen of the People’s Republic of China. She claims to fear persecution from the Chinese authorities because of her involvement with an ‘underground’ Christian Church.  Specifically, the applicant claimed before the Tribunal that in July 2003 she and her husband were arrested and beaten as part of a crack-down on unauthorised churches. 

3                     Despite being invited to give oral evidence and make submissions at the hearing before the Tribunal, the applicant did not appear.  The Tribunal proceeded in the applicant’s absence and found that without further information from the applicant it could not be satisfied that the applicant was a Christian, a Catholic or a member of an ‘underground’ Church.  The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. 

4                     Before the Federal Magistrate the applicant claimed that the Tribunal erred in failing to notify her of the reasons for its refusal of her application in writing before it made its decision; in not accepting her claim that she was a Christian or Catholic or a member of an underground church; and was biased.

5                     The Federal Magistrate found nothing in s 424A of the Migration Act 1958 (Cth) (‘the Act’) to require the Tribunal to disclose its reasoning process.  The Tribunal was therefore not obliged to inform the applicant in writing of its reasoning prior to handing down its decision.  His Honour also found that the Tribunal’s findings about the applicant’s religion disclosed no jurisdictional error.  The applicant’s allegation of bias was not particularised and was not pressed before the Federal Magistrate.

6                     In support of her application for leave to appeal, the applicant also filed an affidavit stating that she was unaware that her hearing date before the Federal Magistrate was intended to be a final hearing of the matter, that the Federal Magistrate had failed to explain what would happen on the hearing date, that the interpreter did not interpret any such explanation and that her application was dismissed without a formal hearing.  The applicant filed a draft notice of appeal which, inter alia, repeated her complaints about the conduct of the Federal Magistrate.

7                     The question of whether leave to appeal should be granted is discretionary.  In Décor Corp Pty Limited v Dart Industries Inc (1991) 33 FCR 397 at 398-399 the Full Court of this Court held that a two-part test would generally guide this discretion.  The issues are first, whether the interlocutory decision was attended with sufficient doubt to warrant being reconsidered by the Court and second whether substantial injustice would result if leave were to be refused, supposing the decision to be wrong. 

8                     However, I do not consider that the Federal Magistrate’s decision was attended with sufficient doubt as to warrant being reconsidered by this Court.  The substance of the applicant’s appeal in the Federal Magistrate’s Court was that she was not afforded procedural fairness in the Tribunal and that the Tribunal made findings without evidence.  I accept the the learned Federal Magistrate’s view that there was no basis for the applicant’s submission that the Tribunal failed to comply with s 424A of the Act.  Insofar as the Tribunal’s decision relied upon independent country information, the exemption contained in s 424A(3) of the Act applied.  The Tribunal’s conclusion that it was not satisfied on the evidence that the applicant was a Christian, a Catholic or a member of an unauthorised house church was a conclusion that the applicant had failed to provide sufficient evidence in support of her contentions, rather than a finding of fact that the applicant was not, in fact, a member of these groups.  In respect of the operation of s 424A in these circumstances, I agree with the comments made in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29].

9                     The only remaining aspect of the applicant’s claims before the Federal Magistrate was an allegation of bias that was not pressed.  Although an allegation of bias appears in the draft notice of appeal the applicant at the hearing before me did not wish to provide particulars or elaborate on that claim.  Accordingly I cannot find that it has any substance at all.

10                  In the circumstances I do not consider that refusing the applicant leave to appeal would cause substantial injustice because I do not think her appeal holds any prospect of success. 

11                  Consequently, the application for leave to appeal must be dismissed with costs.

Associate:

Dated: