FEDERAL COURT OF AUSTRALIA

SZKLA v Minister for Immigration and Citizenship [2008] FCA 658

SZKLA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 185 of 2008

COWDROY J

15 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Appellant pay the costs of the First Respondent in the amount of $1,735 pursuant to O 62 r 4(2)(c) of the Federal Court Rules (Cth).

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

REASONS FOR JUDGMENT

1                     The appellant appeals from the decision of Federal Magistrate Nicholls delivered on 25 January 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 1 March 2007. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa (‘the protection visa’) to the appellant.

BACKGROUND

2                     The appellant is a citizen of the People’s Republic of China (‘the PRC’) who arrived in Australia on 27 August 2006. On 19 September 2006 the appellant lodged an application for the protection visa with the Department of Immigration and Multicultural Affairs (as it was then known). On 12 October 2006 the appellant attended an interview with a delegate of the Minister. The delegate refused the application for the protection visa on 20 October 2006. On 20 November 2006 the appellant applied to the Tribunal for a review of the delegate’s decision.

3                     The appellant claimed to have well-founded fear of persecution resulting from his religious beliefs. The appellant claimed that he began practising Christianity after the Spring Festival in 2004. The appellant claimed that he was baptised in a local church in the PRC in May 2004. The appellant claimed that he became a ‘family gathering activator’ and spread the gospel to his neighbours. The appellant also claimed that he distributed Christian flyers.

4                     The appellant claimed that in April 2005 a member of the local residential committee came to his home and warned his mother that if they did not register their future family gatherings they would be in breach of Communist Party rules. The appellant claimed that in September 2005 the local police came to a Christian gathering held at his home. The appellant claimed that seven participants, including the appellant, were arrested, detained, beaten and interrogated. Those detained were released on 8 December 2005 after money was paid by the appellant’s girlfriend and others.

5                     The appellant claimed that the local police and members of the local residential committee often came to his family’s home to monitor the appellant and his family and to threaten the appellant with incarceration should he attend any illegal gatherings or spread the gospel. The appellant decided that he would go overseas for the ‘peace of my family life and freedom of worship God’.

6                     The appellant’s corroborating documents indicated that the appellant has attended a Christian place of worship in Sydney.

THE TRIBUNAL DECISION

7                     On 28 November 2006 The Tribunal invited the appellant to attend a hearing before it, but on 15 December 2005 the appellant declined such invitation and consented to the Tribunal making a decision without taking further action to allow or enable him to appear before it.

8                     The Tribunal found that important aspects of the appellant’s claims were general and lacking in detail. The appellant’s evidence regarding the distribution of religious flyers, the family gatherings and his baptism was limited and the Tribunal accordingly could not be satisfied of the occurrence of such events. The Tribunal considered the appellant’s knowledge of Christianity to be ‘superficial and limited’ and found that it could not be satisfied that the appellant was a practising Christian.

9                     The Tribunal found that the corroborating documents in relation to the appellant’s attendance at church in Australia do not in themselves establish that the appellant had practised Christianity in Australia as the documents were general in nature and could not be tested. The Tribunal noted that even if the appellant had attended church in Australia, the appellant had not satisfied the Tribunal that his conduct was engaged in otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal accordingly disregarded the appellant’s conduct under s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’) in relation to his alleged church attendance in Sydney.

10                  The Tribunal was not satisfied that the appellant had well-founded fear of persecution resulting from his religious beliefs. The Tribunal accordingly affirmed the delegate’s decision to refuse to grant the protection visa to the appellant.

APPLICATION FOR REVIEW BEFORE THE FEDERAL MAGISTRATE

11                  By application filed in the Federal Magistrates Court of Australia on 26 March 2007 the appellantsought judicial review of the Tribunal’s decision. The appellant raised two ground of appeal:

1.      Jurisdictional error has bee [sic] made. RRT ignored my evidences.

2.      Procedural fairness has been denied. I am Christian. I fear to go back.

12                  At the hearing before Federal Magistrate Nicholls the appellant explained his absence from the Tribunal hearing. The appellant claimed that he had indicated to his migration agent that he could not attend the Tribunal hearing because he was sick and outside of Sydney. He claimed that his migration agent had promised to inform the Tribunal of his difficulties on his behalf. He claimed that he waited for ‘the second opportunity’ for the Tribunal hearing.

13                  The Federal Magistrate found that the appellant’s evidence was unsatisfactory. His Honour noted the appellant had given evidence that he had signed the ‘Response to Hearing Invitation’ and that it had been translated and explained to him by his migration agent. The Federal Magistrate noted that had the ‘Response to Hearing Invitation’ been translated and explained to the appellant, as the appellant’s evidence indicated, the appellant would have known that he had told the Tribunal that: he did not wish to attend the hearing before it; and that he had consented to the Tribunal hearing proceeding without taking further action to enable him to appear before it. The Federal Magistrate also noted that the appellant did not explain how he signed the ‘Response to Hearing Invitation’ when he was allegedly outside of Sydney. The Federal Magistrate stated the matter was distinguishable from SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 237 ALR 64 as his Honour was not satisfied there was any fraud or conduct akin to fraud by the appellant’s migration agent in the matter.

14                  Nicholls FM found the Tribunal complied with the relevant provisions of the Act and the Migration Regulations 1994 (Cth) regarding the issuing and notification of the invitation to hearing and the relevant time periods.

15                  Nicholls FM considered the grounds in the appellant’s application but found that they did not establish any jurisdictional error in the Tribunal’s decision. His Honour accordingly dismissed the appellant’s application.

APPEAL TO THIS COURT

16                  On 14 February 2008 the appellant filed a notice of appeal in this Court which raises three grounds of appeal as follows:

1.            The Tribunal misunderstood my claims and failed to consider my application according to s 91R of the Migration Act 1958.

2.            The satisfaction that I am not a refugee was not based on a rational and logical foundation.

3.            The Tribunal had bias against me and did not consider my application according to Migration Act 1958.

FINDINGS

17                  None of the grounds in the notice of appeal were raised before the Federal Magistrate. Accordingly, leave is required for the appellant to rely upon such grounds: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. In deciding whether leave should be granted, the relevant principle to be applied by the Court is whether it is expedient and in the interests of justice to allow the grounds to be argued: see Iyer at [16]. Such consideration requires the Court to consider the merits of the grounds raised: see Iyer at [24].

18                  The appellant attended the hearing of his appeal and requested that he be given a second hearing before the Tribunal. The appellant made no submissions in support of the grounds of appeal nominated in his notice of appeal.

19                  Ground one of the notice of appeal claims that the Tribunal misunderstood the appellant’s claims and failed to consider his application according to s 91R of the Act. In the absence of any supporting evidence, the Court can find no merit in respect of such ground.

20                  Ground two of the notice of appeal asserts that the Tribunal’s finding that the appellant was not a refugee was ‘not based on a rational and logical foundation’. Such assertion, without any further definition, is too vague to constitute a meaningful ground of appeal.

21                  Ground three of the notice of appeal alleges that the Tribunal was biased against the appellant. As has been repeatedly held in this Court, an allegation of bias or bad faith constitutes a serious allegation which must be clearly alleged and proved: see for example SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358; SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361.

22                  Since there are no particulars provided in support of this allegation, it is not possible to identify any basis for such assertion. Neither the Tribunal’s decision nor the Federal Magistrate’s judgment indicate any bias against the appellant.

23                  For the above reasons the Court considers that there is no merit raised by any of the grounds of appeal. It follows that it is neither expedient nor in the interests of justice to grant leave to the appellant to raise the grounds in the notice of appeal. The Court dismisses the appeal.

Associate:

Dated:         15 May 2008