FEDERAL COURT OF AUSTRALIA

SZFWZ v Minister for Immigration & Multicultural Affairs [2007] FCA 263

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

NSD 1697 of 2006

EDMONDS J

21 FEBRUARY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2.                  The appeal be dismissed.

3.                  The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of the Federal Magistrates Court (Federal Magistrate Raphael) given on 16 August 2006 dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’), affirming a decision of a delegate of the first respondent (‘the Minister’) refusing an application for a protection visa. 

Background

2                     The appellant is a citizen of the Peoples Republic of China.  He arrived in Australia on 30 September 2004.  The appellant lodged an application for a protection (Class XA) visa on a date that, according to the Minister’s delegate, was 11 October 2004.  After the Minister’s delegate refused the appellant’s protection visa on 1 November 2004, he applied on 1 December 2004 to the Tribunal to review that decision. 

3                     Before the Tribunal the appellant claimed to be a Falun Gong practitioner.  He stated that he commenced practising in 1998 but that Falun Gong was outlawed in 1999.  The appellant claimed that he demonstrated for Falun Gong in front of his home city’s government building.  In his protection visa application the appellant also claimed that in December 2002 several police broke into his house and took him to a labour camp.  He claimed that whilst there he was tortured and abused.  He gave details of his treatment which included: inadequate sleep, brainwashing for long periods of time, physical abuse, torture, being beaten by willow branches, his hands had swollen, being tied up and beaten and his head hit against a wall, his skull was fractured, his right eye was almost blind, he was thrown into a garbage can and cold water was used to wake him up. 

4                     The appellant also claimed that one million Yuan was used to build a ‘transformation station’ (to force Falun Gong members to renounce their faith) in the county from which he came, which was the Chongqing County.  The appellant claimed that after he was released from the labour camp he sold his house, collected money from relatives and friends and through bribing a powerful government officer he was able to obtain a passport and visitor’s visa to Australia. 

The Tribunal’s Decision

5                     On 23 December 2004 the Tribunal invited the appellant to a hearing as it was unable to make a favourable decision on the evidence before it.  No response was received to this letter and as the appellant did not provide any telephone number the Tribunal could not contact the appellant.

6                     In consequence, the appellant did not attend the hearing on the scheduled date and the Tribunal proceeded to deal with his application for review, under s 426A of the Migration Act 1958 (Cth) (‘the Act’), and to make a decision in his absence.  The Tribunal noted that the appellant had not provided any documentary evidence as to his claims and considered that it would be reasonable to expect the appellant to provide some evidence of his claims.  The Tribunal further found that the appellant’s claims were lacking in basic details, such as where he was detained in a labour camp and how long he was held there.

7                     The Tribunal noted that the appellant had not stated what problems he had, if any, after he was released from the camp.  Ultimately the Tribunal found, on the absence of such evidence from the appellant, it was unable to establish the relevant facts.  The Tribunal was not satisfied on the limited evidence that the appellant had a well-founded fear of persecution, within the meaning of the Convention and therefore it held that the appellant was not a person to whom Australia had protection obligations under the Convention, as amended by the protocol.  The appellant therefore did not satisfy the criterion set out in subs 36(2) of the Act for a protection visa. 

Proceedings in the Court Below

8                     On 15 March 2005 the appellant filed an application under s 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  The application does not contain any grounds as such but reasserts and restates his claims that he is a genuine Falun Gong practitioner, that Falun Gong was outlawed by the Chinese government and that at the end of 2002 he was taken into a labour camp where he was physically and mentally abused.  The Federal Magistrate found the ‘grounds’ asserted factual matters which did not address the issue of jurisdictional error.

9                     At the hearing before the Federal Magistrate the appellant stated that he did not attend the hearing as he was new to Australia and was unable to find the premises of the Tribunal, a matter which he repeated at the hearing today.  His Honour below found that the Tribunal was entitled to proceed under subs 426A(1) of the Act, that there was nothing to suggest the Tribunal was aware of anything that rendered doing so unfair or improper and that it did not fall into jurisdictional error in declining the grant of the visa.  Consequently, the Federal Magistrate dismissed the application. 

Appeal to this Court

10                  Turning to the appeal to this Court, the notice of appeal sets out three unparticularised grounds of appeal:

(1)               The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it is purported to be made.

(2)               There was no evidence or other material to justify the making of the decision.

(3)               The decision was otherwise contrary to law.

11                  It is not clear to me whether ‘the decision’, referred to in these three grounds, is the decision of the Tribunal or the judgment of the Federal Magistrate below.  While the appeal is brought from a judgment of the Federal Magistrate, the reference to the decision in the grounds of appeal suggest to me that the decision complained of is that of the Tribunal.  If that be so and the grounds do not identify any error in the Federal Magistrate’s decision, then the appeal must, of necessity, fail.  I shall therefore read the grounds of appeal as being referable to the judgment of the Federal Magistrate below.

12                  Despite such a benevolent reading, I agree with the submission of the Minister that there are no legal, factual or discretionary errors made by the Federal Magistrate.  For that reason the appeal must be dismissed.  The Minister’s submissions observe that the appellant was invited to the hearing before the Tribunal and did not appear.  In those circumstances it is submitted that the Tribunal complied with its statutory obligations of procedural fairness under the Act.  There was no obligation on the Tribunal to ensure the appellant took advantage of the invitation to appear before it. 

13                  The Minister submits that the Tribunal was entitled to proceed on the material before it and the Federal Magistrate was correct in finding that no denial of procedural fairness occurred.  I agree with those submissions.  The Minister’s submissions also observe that the Tribunal’s decision did not depend, in any way, on country information or any adverse information that was required to be brought to the appellant’s attention.  The Tribunal’s reasons related solely to its being unable to reach a specified mental state because of an absence of detail and extrinsic explanation, which had been invited. 

14                  In those circumstances, as was observed by Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, it would be an inadequate and misleading statement to say that adverse information was the reason or part of the reason for the decision.  Rather, it was the perceived inadequacy of the information in the sense of an absence of detail and explanation, which had been invited, which was the reason for the decision.  No jurisdictional error is established in either the Tribunal’s decision or in the judgment of his Honour below. 

Orders

15                  The orders of the Court will be:

1.                  The name of the first respondent be amended to the Minister for Immigration and Citizenship.

2.                  The appeal be dismissed.

3.                  The appellant pay the first respondent’s costs.

Associate:

Dated:         2 March 2007