FEDERAL COURT OF AUSTRALIA

SZISB v Minister for Immigration and Multicultural Affairs [2006] FCA 1496

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

NSD 1585 OF 2006

MANSFIELD J

3 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an extension of time in which leave to appeal may be sought is refused.

2.                  The applicant pay to the first respondent her costs of the application.

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

REASONS FOR JUDGMENT

1                     The applicant is a Chinese national.  He came to Australia on 25 September 2005.  Soon afterwards he applied for a protection visa under the Migration Act 1958 (Cth).   That application was refused by a delegate of the first respondent.  On 19 December 2005 a review of that decision by the Refugee Review Tribunal (the Tribunal) was sought and on 14 March 2006 the Tribunal affirmed that decision. 

2                     The applicant then applied to the Federal Magistrates Court for an order to quash the Tribunal’s decision.   The Federal Magistrate conducted a directions hearing on 23 May 2006.  His Honour explained that there would be a hearing to decide whether the claim had merit under r 44 of the Federal Magistrates Court Rules.  He gave the applicant an opportunity to amend his application and to adduce further evidence in support of it.  That application came on for hearing on 25 July 2006. 

3                     The learned Federal Magistrate was not satisfied that there was an arguable case for having the Tribunal’s decision quashed and so dismissed the application under r 44.12(1)(a) of the Federal Magistrates Court Rules.  This is an appeal from that decision.  As it is an interlocutory decision, (see r 44.12(2) of the Federal Magistrates Court Rules), the applicant needs leave to appeal from that decision.

4                     His application to this Court was made on 21 August 2006, six days after the time within which he might properly have applied for leave to appeal had expired.  His application seeks an extension of time within which to file and serve a notice of appeal.  It does not seek leave to appeal but I shall treat the application as an application for an extension of time to seek leave to appeal, and an application for leave to appeal.

5                     The application was accompanied by a brief affidavit of the applicant in which he asserts that the Tribunal did not “observe Migration Act 1958 properly to making the decision”.  It also asserts that the learned Federal Magistrate “failed to consider my claims”.  With the affidavit is a draft notice of appeal which does not specify any ground of appeal but simply refers to the Federal Magistrate’s decision.

6                     Those documents do not identify to me any error on the part of the Tribunal or on the part of the Federal Magistrate.  Nevertheless, because the applicant appears in person I have considered the Tribunal’s reasons, and the reasons of the Federal Magistrate, to see if some error which might justify the grant of an extension of time to seek leave to appeal, and the grant of leave to appeal, should be given.

7                     The applicant has not explained the delay in bringing the application for leave to appeal.  However, given that the period involved is only a few days I would not treat that as an impediment to making the orders he seeks if I were satisfied that there were some arguable case that he might present on an appeal.

8                     The applicant’s claim for a protection visa identified two reasons why he sought protection in Australia. 

9                     The first was by reason of his political opinion.  He claimed that his family suffered during the Cultural Revolution, and more recently in 1989 and 1990 after he organised donations for students which apparently were directed to opposition to the Chinese Government regime.  He claimed that the moneys were sent through a co-ordinator in the Fujian Province, and in 1990 the co-ordinator was detained and the applicant “became one of the victims” and was “heavily penalised”.  He said he was detained for two days for investigation.

10                  There was no evidence of any more recent history of political activity on his part nor any complaint of adverse experiences more recently than 1990 by reason of any political activities he had engaged in.

11                  The second claim was that in 1996 the applicant became a Falun Gong member and promoted the Falun Gong actively in towns in China.  He claimed that as a result the Chinese Government paid more attention to him, that the police targeted him, and that he was detained for one day for questioning in 2005.  The applicant provided no greater detail of those claims to the Tribunal.

12                  The applicant was invited to a hearing before the Tribunal by notice of 18 January 2006.  He did not attend it.  He made no contact with the Tribunal to indicate that he would not attend, or to explain why he did not attend.  Although there is no evidence before me on the topic, he said at the hearing of this application (and to the Federal Magistrate) that he did not attend because he was frightened to do so.  The Tribunal proceeded to determine his claim without taking any further action to give him the opportunity to appear before it.  It was clearly entitled to do so under s 426A of the Act.

13                  The Tribunal noted that the Cultural Revolution officially ended in 1976 and was repudiated by the Chinese Government in 1978.  On the very limited information it had, it was not satisfied that the applicant himself suffered any mistreatment of sufficient severity to constitute persecution during the Cultural Revolution, nor that any such mistreatment continued after 1978, nor that the applicant faced any real chance of such mistreatment if he were to return to China because of any activities of him and his family in the period up to 1978.

14                  The Tribunal also considered that, even accepting the applicant’s claim to have been detained for two days in 1990, there was insufficient evidence to be satisfied that that detention constituted persecution, or that after 1990 he had suffered any further mistreatment in connection with his 1989 and 1990 activities.  It was also not satisfied that there was a real chance that the applicant would face continuing persecution in connection with those activities if he were to return to China.

15                  As to the second of the claims, the Tribunal again referred to the very limited information provided by the applicant concerning his belief in and practice of Falun Gong, or of any difficulties he had had with the authorities prior to 2005 even though the Falun Gong had been banned in 1999 and even though he claimed to have been a member since 1996.   It noted that there was very little information about the circumstances of the applicant’s detention for one day in 2005, or about whether he continued with his Falun Gong activities after that time, either in Australia or China.

16                  Consequently, the Tribunal was not satisfied that the applicant is a genuine or committed practitioner of Falun Gong, or that he had experienced persecution as a Falun Gong practitioner in China, or that he would wish to practice Falun Gong if he were to return to China, or that he is of continuing adverse interest to the Chinese authorities.  Consequently, it was also not satisfied that the applicant has a well-founded fear of persecution in China because of his belief in Falun Gong or any activities he has undertaken as a Falun Gong practitioner in China or Australia.

17                  There is nothing to indicate that the Tribunal did not properly understand the applicant’s claims or properly consider them.

18                  The Federal Magistrate also addressed the applicant’s claims and the Tribunal’s reasons for reaching its conclusions.

19                  I agree with the learned Federal Magistrate that, in the circumstances, the Tribunal was entitled to proceed to determine the application for a protection visa without taking any further action to enable the applicant to appear before it.  Section 426A of the Act authorised it to so proceed.  Whatever the applicant’s reasons for not having attended that hearing, he was most unwise not to have contacted the Tribunal to explain them.  Even if his reasons as explained orally are correct, he did not convey them to the Tribunal at all and the Tribunal was entitled to proceed as it did.  The applicant did not even submit any further written information to the Tribunal in support of his claims although he could well have done so.

20                  I also respectfully agree with the Federal Magistrate that the Tribunal addressed each of the applicant’s claims, that it identified and applied correctly the law it was required to apply in assessing those claims and that the conclusions which it reached about those claims were available to it.

21                  The Federal Magistrate also referred to the grounds of the amended application before him.   I agree with the Federal Magistrate’s conclusions that those grounds were not made out.   There is nothing which might suggest any appearance of bias or actual bias on the part of the Tribunal.  There is no procedure mandated by the Act which the Tribunal did not follow. Its reasons do not indicate that it used any information about the applicant, or which otherwise might have attracted an obligation under s 424A to give the applicant the opportunity to comment on it.  It simply regarded as inadequate the material that the applicant had presented to support his claim so as to enable the Tribunal to be satisfied as to those claims:  see SZEIQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1801.  The Federal Magistrate also correctly concluded that the contention in the amended application referring to s 91R of the Act did not identify any arguable ground for the Tribunal’s decision being set aside.

22                  The applicant has not presented any fresh contentions in the course of his oral submissions today other than those I have already addressed.  Nor have I perceived, in my reading of the Tribunal’s decision, or of the Federal Magistrate’s decision, any reviewable errors.

23                  As I do not think the applicant has any prospect of succeeding on an appeal from the learned Federal Magistrate’s decision, if he were given leave to appeal, I refuse the application for an extension of time to file and serve a notice of application for leave to appeal.  To the extent to which it is sought, I would also refuse his application for leave to appeal from the Federal Magistrate’s decision.  I order that the applicant pay to the first respondent the costs of the application.

Associate:

Dated:         13 November 2006