FEDERAL COURT OF AUSTRALIA

SZHTG v Minister for Immigration & Citizenship [2008] FCA 261

Migration Act 1958 (Cth)

Migration Regulations  

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 25

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004) FCAFC 10

Sathiyanathan v Minister for Immigration &Multicultural Affairs [2000] FCA 210

SZAJB v Minister for Immigration &Multicultural Affairs [2004] FCA 782

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26

SZHTG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2220 OF 2007

EDMONDS J

6 MARCH 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  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 (SZHTG v Minister for Immigration & Citizenship & Anor [2007] FMCA 1868 (Barnes FM)) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) refusing an application for a protection visa.

2                     There was no appearance by or on behalf of the appellant at the time (2.15 pm) on the date (4 March 2008) fixed for the hearing of the appeal.  The matter was called outside the Court with no response.  I then instructed the Court officer to telephone the Registry in Queen’s Square to ascertain whether the appellant had attended the Law Courts Building instead of the Court rooms at 80 William Street, East Sydney.  He was advised that there was no appearance by or on behalf of the appellant.  I stood the matter down until 3.30 pm but there was no appearance by the appellant by that time.

3                     No written submissions were filed by the appellant.  The solicitor representing the Minister indicated that the Minister relied on the written submissions filed 26 February 2008.  I reserved my judgment.

Background

4                     The appellant is a female citizen of the People’s Republic of China.  She arrived in Australia on 15 June 2005.  The appellant applied for a protection visa on 24 June 2005.  The application was refused on 7 July 2005.

⁵                      The appellant applied to the Tribunal for review of the original decision on 8 August 2005.  Along with her application for review the appellant provided a further written statement in which she disagreed with the delegate’s decision and repeated the substance of her claims.

6                     The Tribunal wrote to the appellant on 7 September 2005 inviting the appellant to attend a hearing on 4 October 2005.  This letter was sent by registered post to the mailing address given by the appellant on her ‘Application for Review’.  The appellant did not reply to the letter and she did not attend the hearing.

7                     The Tribunal proceeded to make its decision on 12 October 2005, without taking further action to enable the appellant to appear before it, pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’).  The Tribunal sent a letter to the appellant notifying her of the outcome of its decision on 1 November 2005.

8                     The Tribunal rejected the appellant’s claims on the basis that they were unsubstantiated, vague and lacking in important details.  The Tribunal found aspects of the appellant’s claims were lacking in credibility and observed the absence of any claim to have participated in Falun Gong activities in Australia.

The Federal Magistrates Court

9                     The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court by application filed on 6 December 2005.  Ground one of the application alleged that procedures under the Migration Regulations had not been followed.  No particulars were provided.  The remaining grounds of the application repeated the factual merits of the appellant’s refugee claims, namely: ‘I face a risk of being jailed if I return to my original country – PR China’ and ‘I was prosecuted by the Chinese Government because I am a Falun Gong practitioner’.

10                  In rejecting the appellant’s grounds of review, her Honour found that:

(1)               Grounds two and three sought impermissible merits review of the appellant’s refugee claims.  They did not raise, let alone establish, jurisdictional error on the part of the Tribunal.

(2)               Ground one was a generally expressed and unparticularised claim that procedures required to be observed by the Migration Regulations were not followed.  Based on the evidence before the Court, her Honour was satisfied that the Tribunal’s hearing invitation letter dated 7 September 2005 was addressed and sent to the address for correspondence provided by the appellant in her Tribunal application by registered post on 7 September 2005.  Accordingly the Tribunal had complied with its s 425 obligations, having regard to ss 425A and 441A, as well as reg 2.35D.  In these circumstances, the Tribunal was entitled to proceed pursuant to s 426A of the Act to make a decision without taking further action to enable the appellant to appear before it.

11                  Her Honour also considered the potential application of s 424A of the Act.  Her Honour found that s 424A was not engaged because the Tribunal’s decision was based upon the absence of evidence before it which left the Tribunal unable to reach the requisite state of mental satisfaction that the appellant was a person to whom protection obligations were owed.  In so far as the Tribunal referred to material within the appellant’s Protection Visa Application, not only was the substance of her claims repeated by the appellant to the Tribunal (thereby engaging the s 424A(3)(b) exception), the Tribunal’s subjective appraisal of the material before it did not constitute information within s 424A: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26.

Appeal to this Court

12                  The notice of appeal raises the following grounds:

(1)               The Tribunal failed to consider that the appellant was prosecuted by the Chinese Government because she is a Falun Gong practitioner.

(2)               The Tribunal failed to consider that the appellant faces a risk of being gaoled if she returns to China.

(3)               The Tribunal failed to consider the current situation in China in relation to the prosecution of Falun Gong.

13                  The Tribunal did not fail to consider any of these matters.  In the case of the first two so much is made clear in the first paragraph of the Tribunal’s summary of its findings and reasons:

‘The Applicant’s claim that she will face persecution if she returns to China rests on her claim to have been a Falun Gong practitioner and she does not claim to have suffered any harm for any other Convention-related reason.  Nor do her claims indicate, on their face, that there is any reason to believe that she will suffer harm for any other Convention-related reason.  Her unsubstantiated claims concerning her Falun Gong involvement, brief and vague as they are, do not provide sufficient grounds for the Tribunal to have confidence in the claimed basis for her professed fear of persecution.  Nor, given the equally brief, vague and implausible nature of her claims to have been harmed because of [her] Falun Gong involvement is the Tribunal satisfied that she has ever suffered any harm in China for this reason.’

14                  Nor did the Tribunal fail to consider the third matter – the current situation in China in relation to the prosecution of Falun Gong – as indicated by its reference to the independent country information.

15                  No error in the reasoning of her Honour has been identified.  The function of this Court on appeal is to determine whether there was any error made below and not in the findings of the Tribunal: see Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 at [10]; SZAJB v Minister for Immigration & Multicultural Affairs [2004] FCA 782 at [4].

16                  All three grounds of the notice of appeal repeat the factual merits of the appellant’s refugee claims.  They may be interpreted as a challenge to the refusal of her Honour to enter into merits review of the Tribunal’s decision; but her Honour was entirely correct in not doing so.  Merits review is an impermissible exercise and no part of the function of the Court when dealing with an application for judicial review: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004) FCAFC 10 at [10]; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

Conclusion

17                  No error by her Honour is shown, and no jurisdictional error by the Tribunal has been demonstrated.  The appeal must be dismissed with costs.

Associate:

Dated:         6 March 2008