SZBFV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 936

FEDERAL COURT OF AUSTRALIA

SZBFV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 936

SZBFV v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS

NSD 487 of 2005 LINDGREN J 5 JULY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 487 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBFV

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 5 JULY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. 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 487 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBFV

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 5 JULY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from a decision of the Federal Magistrates Court of Australia ('FMCA') of 10 March 2005 (SZBFV v Minister for Immigration [2005] FMCA 324), dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 30 June 2003 and handed down on 24 July 2003. By that decision the Tribunal affirmed a decision of a delegate of the respondent Minister ('the Delegate' and 'the Minister' respectively), made on 7 June 2002 refusing the appellant's application for a protection visa.

Background 2 The appellant is a 24 year old Chinese citizen. He arrived in Australia on 16 April 2002, travelling on a visitor's visa. On 16 May 2002 he lodged an application for a Protection (Class XA) Visa. He claimed to fear persecution because he was a practitioner of Falun Gong. 3 After the Minister's delegate refused the appellant's application for a protection visa on 7 June 2002, the appellant applied to the Tribunal to review that decision on 3 July 2002. 4 On 2 June 2003 the Tribunal sent a letter to the appellant, at both the address he had supplied as his address for service, and the address he had supplied as his home address, stating: 'The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.' The letter invited the appellant to a hearing on 26 June 2003. 5 On 16 June 2003 the copy of the letter dated 2 June 2003, sent to the appellant's home address, was returned marked as 'Unknown at Address'. On 16 June 2003 the Tribunal called a telephone number which had been provided to it by the appellant, but the appellant was unknown to the person who answered the phone. 6 On the same day, 16 June 2003, the Tribunal received a notice appointing an authorised recipient, a notice of change of address, and a response to hearing invitation form which indicated that the appellant did want to attend the hearing. It purported to be signed by the appellant personally. Despite this, the appellant failed to attend the hearing. 7 When the appellant failed to appear at the hearing, the Tribunal proceeded to determine the application pursuant to s 426A of the Migration Act 1958 (Cth) ('the Act'). It found his claims to be very general and non-specific, and too vague to enable appropriate and reliable factual findings to be made about key issues central to his claims. It found that it did not have sufficient detailed information about his claims to be satisfied that he met the definition of refugee under the Convention. The Tribunal was not satisfied that he was a Falun Gong member, or that he was in genuine fear of persecution. 8 The appellant filed an application in the FMCA on 18 August 2003. It stated two grounds of review: '1. The decision of the RRT was induced by actual bias of the officer. 2. There was no evidence or other materials to justify the making of the decision.' Those grounds were not particularised. 9 In late February 2004, the respondent was served with an unfiled affidavit sworn on 23 February 2004 by the appellant. It appeared to raise the following additional grounds of review: '3. [W]hen I asked for postpone of my hearing date, the Tribunal refused my application. I don't think the Tribunal had the genuine intention to discuss above-mentioned matter with me. 4. I believe that the officer made jurisdiction mistakes by saying I was not a refugee and did not take into account the details of my application.' 10 The appellant did not file any written submissions in support of the application before the FMCA. 11 A hearing was held before Raphael FM on 10 March 2005. At the hearing the appellant was cross-examined on his affidavit. The learned Federal Magistrate delivered reasons for judgment dismissing the application. His Honour found that the provision of the notice of the hearing given to the appellant at the addresses he provided constituted deemed service of the notice of the hearing. His Honour was satisfied that the Tribunal was able to come to the decision which it did on the basis of the failure of the appellant to provide it with sufficient particulars to allow it to be satisfied, as required under s 36 of the Act. 12 The learned Federal Magistrate noted the appellant's argument that he had asked the Tribunal to adjourn the hearing, and it had not agreed to do so. The difficulty with that assertion was that his Honour could not be satisfied, from the appellant's evidence, that he really did send the letter that he alleged he did, when he appeared to have been represented by a migration agent, and there was no record of receipt of such a letter by the Tribunal contained in the Court Book. His Honour believed that he was entitled to infer that had such a letter been received by the Tribunal, it would at least have been answered, but the appellant did not claim to have received an answer. His Honour rejected an argument that the Tribunal had not told the appellant where to go for the purposes of the hearing. 13 His Honour also rejected an allegation of bias and a submission that there was no evidence to justify the Tribunal's decision. His Honour finally rejected an assertion that the Tribunal did not take into account the details of the appellant's application. 14 His Honour concluded that, in all the circumstances, there were no grounds on which the Court could grant the appellant review of the decision of the Tribunal. 15 On 30 March 2005 the appellant filed in this Court a notice of appeal appealing from the whole of the learned Federal Magistrate's judgment of 10 March 2005. He also filed an affidavit sworn by him on 28 March 2005. The affidavit states: '1. I lodged my application for review to Federal Magistrates Court because I found out some mistakes of RRT when they considered my application for a protection visa. 2. The decision made by RRT was induced by actual bias of the officer. There was no evidence or other materials to justify the making of the decision. 3. The Tribunal officer had bias against me and refused to accept any new submissions to the Tribunal. I argued at the Federal Magistrates Court with particulars of the grounds of my review application, and I put forward the jurisdiction errors made by the Tribunal. The Judge could not accept any of my arguments and the explanation, and refused my application at the Federal Magistrates Court. I hereby lodge my application for the Federal Court of Australia for further consideration of my application for a protection visa. I believe that my application should be reconsidered at RRT I hereby file a notice of appeal from the judgement [sic] at the Federal Magistrates Court on 10/03/2005.' 16 On 2 June 2005 an amended notice of appeal was filed. It raises the following grounds of appeal (which have been renumbered): '1. The Tribunal fell into jurisdiction [sic] error when considering my application for a protection visa. 2. The Federal Magistrates Court did not consider the points that I put forward at the hearing and refused my application on the spot. 3. The Tribunal did not provide a solid ground for not granting me the visa.' 17 The appellant has not served any written submissions in support of his appeal.