SZBBH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 903

FEDERAL COURT OF AUSTRALIA

SZBBH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 903

MIGRATION – no issue of principle SZBBH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1780 OF 2004 CONTI J 27 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1780 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBBH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 27 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed 2. The appellant pay the respondent's costs fixed in the sum of $2,250.00. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1780 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBBH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 27 MAY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the orders and reasons for judgment of a Federal Magistrate made and given on 18 November 2004, which dismissed the appellant's application for review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 3 July 2003 which affirmed an earlier decision of a delegate of the respondent Minister dated 21 June 2001 refusing the appellant a protection (Class XA) visa. 2 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 30 March 2002 after which time he made an application for a protection visa. In the statement annexed to his visa application, the appellant claimed that he had a well-founded fear of persecution on the basis of his family background. It was alleged that because his grandparents had been landlords prior to the ascension of the Communist Party to power, his family was classified as 'Black Five Class'. Apparently as a result of this classification, the appellant was forced to work in a supermarket after graduating from high school in 1981. Following the loss of this job in 1999 the appellant went back to his village to work as a farmer. The second basis for the appellant's claim of a well-founded fear of persecution was that his wife gave birth to a second child in breach of China's 'one child one family' planning policy. This child was allegedly not permitted to be registered as a citizen or to attend school. As a result of breaching the one child policy both the appellant and his wife were terminated from their employment, their unit was confiscated by their 'working unit' and they were fined 30,000 yuan. 3 The Tribunal, in its brief reasons for decision, referred to the appellant's failure to respond to a letter sent by the Minister's delegate by registered post on 17 May 2002 which observed the vague and unsubstantiated nature of the appellant's claims and the concerns the delegate had about the credibility of those claims as a result. The appellant did not provide any additional information for the purpose of review of the delegate's decision as he had promised in his application for review. Another letter was sent to the appellant by registered post on 23 April 2003, this time by the Tribunal, which informed the appellant that the Tribunal was unable to make a decision in his favour on the basis of the information provided by the appellant to date alone. It invited him to attend the hearing. No response to this invitation was received although it had been sent to the appellant's nominated address and to the migration agent nominated on the appellant's application for review as the person with whom to correspond in relation to the application. 4 The Tribunal found that the appellant's claims were 'vague' and that they were 'unclear' as to 'what he fears if he returns to China'. The Tribunal was not satisfied, without more information, that the appellant faced serious discrimination as a result of his family background. In relation to the appellant's claim concerning the enforcement of the one-child policy, the Tribunal pointed out that it was unclear whether the penalties were imposed but that in any event, the one child policy was a law of general application and thus any harm suffered was not for a Convention reason. Since the appellant did not attend the Tribunal hearing, his claims were not able to be investigated more thoroughly. In those circumstances, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution in China for a Convention reason. 5 The main issue considered by the Federal Magistrate was whether the Tribunal had committed jurisdictional error in proceeding to hear the appellant's application for review in his absence. His Honour observed that the appellant may well not have known about the hearing as he claimed but that he was deemed to have been informed of the hearing by virtue of ss 425, 426A, 441A and 441C of the Migration Act 1958 (Cth). His Honour was satisfied that the Tribunal proceeded lawfully under s 426A in conducting the hearing in the appellant's absence. 6 His Honour then proceeded to deal with the two purported grounds contained in the appellant's application for review of the Tribunal's decision, being (i) actual bias; and (ii) absence of evidence or other materials to justify the making of the decision. Since the appellant did not provide particulars of the bias allegation this ground was dismissed by the Federal Magistrate. His Honour relied upon the decision of the Full Federal Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 in which it was held that an allegation of bad faith in decision making is a serious matter involving personal fault on the part of the decision-maker. The allegation is not to be lightly made and it must be clearly alleged and proved. In the absence of any particularisation by the appellant at all of the claim of actual bias, the ground was held to be clearly untenable. 7 In respect of the second ground his Honour held that it misconceived the Tribunal's role, relying in that respect upon what was said by the Full Court of the Federal Court in SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]: 'It is, however, no part of the Tribunal's function to "make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim". Parra v MIMA [2000] FCA 85 at [13].' 8 The Federal Magistrate dismissed the appellant's application for review with costs. 9 By his notice of appeal filed on 1 December 2004, the appellant raises the following grounds (read literally): '1. The judge refused to consider the explanation provided by me at my hearing and refused my application. 2. There is jurisdiction error with the RRT decision and should be returned to RRT for reconsideration. 3. Some evidence provided at my hearing has not been considered.' 10 Those grounds lack particularisation and the jurisdictional error alleged has not been identified. The appellant was not able to remedy either of these defects by either his oral submissions today, or by his affidavit filed on 1 December 2004, which reads as follows (errors in original): 'My application for a protection visa was refused by DIMIA and RRT. I lodged my application for review to Federal Magistrates Court of Australia and I put forward the jurisdiction error made by the Tribunal officer, and I mentioned the particulars of the grounds of my review application. However, the judge did not consider the arguing points provided at my hearing and refused to accept any of my explanation base on some wrong information. I have already explained to the judge about the jurisdiction error with the decision from RRT. The Judge refused to accept my explanation. I decide to file a notice of appeal from the judgement of Raphael FM given on 18/11/2004.' 11 I have the benefit of the written submissions of counsel for the Minister although counsel did not appear at today's hearing, his place being taken by the Minister's solicitor. I adopt those submissions to the extent to which they deal with the Federal Magistrate's judgment. As submitted, there is no error in the Federal Magistrate's judgment that there was no jurisdictional error in the decision of the Tribunal or in its conduct of the hearing. I accept and agree with each of the Federal Magistrate's findings and his reasons in respect of the same. 12 In those circumstances I dismiss the appeal and order the appellant to pay the Minister's costs assessed in the sum of $2,250.00. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.