FEDERAL COURT OF AUSTRALIA

SZHMF v Minister for Immigration and Citizenship [2007] FCA 727

Migration Act 1958 (Cth) s 424A

NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 followed

NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 followed

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 followed

SZGST v Minister for Immigration and Citizenship [2007] FCA 326 cited

SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 cited

SZHMF v MINISTER FOR IMMIGRATION AND CITIZENSHIP & REFUGEE REVIEW TRIBUNAL

NSD 462 OF 2007

DOWNES J

14 MAY 2007

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS:

1.                  The Refugee Review Tribunal is joined as Second Respondent.

2.                  Appeal dismissed with costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The appellant is from the People’s Republic of China.  He is aged 46 years.  He arrived in Australia in January 2005.  He applied for a protection visa, claiming a well-founded fear of persecution within the Refugees Convention on the ground of his membership of, or participation in, Falun Gong.  His application was refused on 22 March 2005.  He sought review by the Refugee Review Tribunal.  The Tribunal notified the appellant that it was unable to make a decision in his favour on the material before it and invited him to come to a hearing and give oral evidence.  The appellant completed a form saying that he would attend on the hearing day but he did not attend.  On 20 September 2005 the Tribunal affirmed the decision not to grant a protection visa.

2                     The Refugee Review Tribunal, constituted by Ms Patricia Leehy, found that the appellant had provided very little detail of the circumstances of the persecution which he claimed.  She noted that while the appellant claimed to have been detained for five days in January 2004, he did not appear to have changed either his place of residence or work as a result and obtained a passport without any difficulty.  He also waited one year before leaving the country, suggesting that there was no sense of urgency in escaping the alleged persecution.  The Tribunal concluded that it was “not satisfied that the [appellant] was a practitioner of Falun Gong, or that he suffered serious harm from the authorities for this reason, or for any other reason”.

3                     The appellant appealed to the Federal Magistrates Court.  His application was dismissed on 5 March 2007.  He appeals to this court against that decision.

4                     The notice of appeal contains three grounds.  The first ground asserts that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth).  This ground has been expanded in the appellant’s written submissions.  The Tribunal’s reasons were based both on general information about how a person that is persecuted might respond and information that that the appellant gave for the purpose of his application.  This information falls within the exceptions to s 424A in paras (3)(a) and (3)(b) respectively.  The actual basis upon which s 424A is relied appears to be a failure to disclose the Tribunal’s proposed reasons to enable the appellant to comment prior to the making of the decision.  This approach depends upon a misunderstanding of s 424A.  The section requires the disclosure of “information” which might be relied upon in the reasons and not any draft reasons.  The information required to be disclosed is limited.  There is obligation to notify potential reasons generally for comment.  In the present case there was no information required to be disclosed.  It follows that the first ground must fail.

5                     The second ground asserts bias.  This is a serious allegation.  It is without foundation.  The appellant also asserts that the Tribunal did not refer to proper independent information for the consideration of the decision.  There are a number of Full Court authorities confirming that the Tribunal’s task is to consider whether it is satisfied that the requirements for the grant of a visa have been complied with.  It will be difficult to achieve the requisite degree of satisfaction if the appellant does not provide sufficient information, such as by not attending a hearing.  In the absence of a positive finding of satisfaction, a visa application must be rejected (see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208, NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).  A circumstance leading to the decision to which the Refugee Review Tribunal arrived was that the appellant did not appear at the scheduled hearing.  In my decisions in SZGST v Minister for Immigration and Citizenship [2007] FCA 326 and SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328I have discussed the difficulties that confront an appellant in those circumstances.

6                     The third ground is that the Tribunal did not give the appellant sufficient reasons.  I have read the reasons of the Tribunal.  They satisfy the requirements for the giving of reasons by that Tribunal. 

7                     In his oral submissions before me the appellant added to his material in the notice of appeal, his affidavit and his written submissions.  However, the further material did not materially alter or expand the grounds upon which he relies and do not affect the reasons I have already given.  In the result, the appeal must be dismissed and will be dismissed with costs.

Associate:

Dated:  23 May 2007