FEDERAL COURT OF AUSTRALIA

SZGER v Minister for Immigration and Multicultural Affairs [2006] FCA 1162

SZGER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 781 OF 2006

BESANKO J

10 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be joined as a respondent to the appeal.

2. The title of the first respondent be amended to read the Minister for Immigration and Multicultural Affairs.

3. The appeal be dismissed.

4. 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.

REASONS FOR JUDGMENT

1                     The appellant is a citizen of the People's Republic of China and he arrived in Australia on 28 November 2004. On 2 December 2004 he lodged an application for a protection class XA visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (‘the Act’). On 10 December 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 13 January 2005 the applicant applied to the Refugee Review Tribunal for a review of that decision.

2                     On 11 February 2005 the Tribunal wrote to the appellant, and advised him that it had considered the material before it in relation to his application, but it was unable to make a decision in his favour on that information alone. The Tribunal invited the appellant to come to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The proposed hearing date was 10 March 2005. The Tribunal advised the appellant that if he did not attend the hearing, and if the Tribunal did not postpone the hearing, it could proceed to make a decision on his case without further notice. The appellant did not respond to the Tribunal's letter, and the letter was not returned unclaimed to the Tribunal. It had been sent to the appellant's residential address, which was the only address provided to the Tribunal. The appellant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.

3                     In those circumstances the Tribunal decided to make its decision on the review without taking any further action to enable the appellant to appear before it (see s 426A of the Act). The Tribunal handed down its decision affirming the decision of the delegate not to grant a protection visa to the appellant on 10 March 2005.

4                     The Tribunal noted the appellant's claim that he was a member of Falun Gong and had suffered in China. He claimed that he had been the subject of investigation by the local police, and that he had been "tormented" both physically and mentally. He claimed that he had had to report to the police whenever there were important events and holidays in his area. He claimed that towards the end of 2003 the police started to investigate him again, and that about that time some members of the Falun Gong in his factory had been detained, and it may have been one of those persons who had disclosed his details to the police. He said that for safety reasons he came to Australia for protection. The Tribunal noted these claims. The Tribunal accepted that practitioners of Falun Gong had been persecuted in China for practising Falun Gong. The Tribunal said that the question was whether the appellant was a practitioner of Falun Gong as he claimed. The Tribunal said that the appellant's claims were general and lacked detail. The Tribunal member explained why she had reached that conclusion. She said that in addition to lacking details the appellant's claims were merely assertions. She expressed her conclusions as follows:

‘Given the lack of detail in the claims, and without the opportunity to test the applicant's assertions at a hearing, the Tribunal is not prepared to simply accept his claims. Thus, the Tribunal is not satisfied that the applicant is, or ever was a Falun Gong practitioner, or that he was detained or mistreated for reasons of Falun Gong membership or activities. Consequently, the Tribunal is not satisfied on the evidence before it that the applicant has a well founded fear of persecution in China within the meaning of the Convention.’

5                     The Tribunal concluded that the appellant did not satisfy the criterion set out in s 36(2) of the Act.

6                     The appellant made an application under the Judiciary Act 1903 (Cth) and the Act, and it is what is said to be an amended application, dated 28 March 2006, which is the subject of the Magistrate's decision. In his application and submissions before the Magistrate the appellant relied on one ground to argue that the Tribunal had committed a jurisdictional error. He sought to raise additional grounds on appeal to this Court.

7                     The appellant submitted to the Magistrate that the Tribunal had failed to comply with the provisions of s 424A(1) of the Act, and that that gave rise to a jurisdictional error. In his application he referred to the decision of the High Court in SAAP v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 215 ALR 162. In other words, he submitted that the Tribunal failed to give him particulars of information that the Tribunal considered would be the reason, or a part of the reason for affirming the decision under review. Although it is not entirely clear, the appellant seemed to submit that the ‘information’ for the purposes of s 424A(1) was the information which he provided in his application for a protection visa, and the fact that (as was ultimately found by the Tribunal) his application was general and lacking in detail, and was such that the Tribunal could not be satisfied that he met the criteria for a protection visa.

8                     The Magistrate rejected this submission and, in my opinion, she was right to do so. The submission ignores the reasoning of the Tribunal. The Tribunal could not be satisfied that the criteria for the grant of a protection visa were met because of a lack of information. The Tribunal’s conclusion was no more than, to use the words of Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29]:

‘The evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation, which had been invited.’

See also SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238. The Magistrate correctly concluded that in such circumstances the obligation in s 424A(1) did not arise.

9                     In his appeal to this Court the appellant raised some additional grounds. He submitted that the Tribunal committed a jurisdictional error in failing (to use the appellant’s words) ‘to refer to sufficient independent information for the consideration’ of the application. This submission must be rejected. It fails to recognise the effect of s 65 and s 36 of the Act. Under s 65(1) the Tribunal is to refuse to grant a visa if not satisfied that the criteria in s 65(1)(a) have been met. The Tribunal was not satisfied that the criteria in s 65(1)(a) were met – and its reasoning in that regard did not involve jurisdictional error – and, in those circumstances, it was correct to affirm the decision of the delegate.

10                  In his affidavit, which accompanied the notice of appeal, the appellant asserted that the Tribunal was guilty of bias and failed to consider his claims. There is no evidence to support either of those allegations. He also asserts that the Tribunal failed to carry out its statutory duty, but there are no particulars in support of that allegation. On the material before me, there is nothing to suggest that the Tribunal did not carry out its obligations under the provisions of the Act.

11                  The grounds of appeal must be rejected and the appeal dismissed with costs.

Associate:

Dated: 9 October 2006