SZDUQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1055

FEDERAL COURT OF AUSTRALIA

SZDUQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1055 SZDUQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 640 OF 2005 STONE J 1 AUGUST 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 640 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDUQ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 1 AUGUST 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs.

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 640 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDUQ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 1 AUGUST 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 8 April 2005 a Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal ('Tribunal') in which the Tribunal refused to grant the appellant a Protection (Class XA) visa.

Background 2 The appellant is a citizen of the People's Republic of China. He first arrived in Australia on 22 October 2003 and departed for New Zealand on 24 October 2003. The appellant re-entered Australia on 27 October 2003 and lodged an application for a protection visa on 4 November 2003. 3 In his application for a protection visa, the appellant claimed he was persecuted in China on account of his political opinion and gave the following account of his experiences in China. From 1980 until 2000 he worked for a construction company where he was 'in charge'. The company owed him money, said to be 200,000 yuan and when he was not paid he went to the company's head office asking for his money. The company called the police, who refused to listen to his reason for being there and put him in a detention centre. The appellant wrote to the central Government to report his mistreatment, but nothing was done. 4 The appellant claimed that as a result of the Government's inaction he wrote statements such as 'Government not fair' on walls. This was seen by 'some people' who reported this to police. The appellant told the police that he thought the Government was not fair and did not help ordinary citizens and that there were thousands of people who were forced into unemployment without any Government assistance. The appellant claimed that because of these statements he was put in detention again, this time for three days. He was told not to speak out in any way that would damage the reputation of the Chinese Government. 5 After being released from detention on this second occasion the company dismissed him. Around the same time his wife also lost her job. The appellant claimed that there were a lot of people in this situation and he organised them to sign a statement about the unfair treatment and sent the statement to the central Government. The appellant claimed that in China he had no freedom to speak, no 'human freedom' and no freedom to criticise the Government, and because of this he came to Australia. He stated that if forced to return to China he would be put in prison. 6 On 17 December 2003, the appellant lodged an application for review of the delegate's decision with the Tribunal. The application for review recorded that the appellant was represented by an immigration advisor who was also his Authorised Recipient of correspondence in relation to the application for review. 7 By letter dated 1 March 2004, the Tribunal wrote to the appellant at the address recorded on his application for review to the Tribunal. It advised the appellant that the Tribunal was unable to make a decision favourable to him on the basis of the information presently before it and invited him to a hearing before the Tribunal on 22 April 2004. A copy of this letter was also sent to the appellant's Authorised Recipient. Attached was a Response to Hearing Invitation form. The letter sent to the appellant's address was registered and was subsequently returned to the Tribunal as 'unclaimed'. 8 On 15 April 2004, the Tribunal received a Response to Hearing Invitation form. In its reasons, the Tribunal notes that this form was received from the appellant's immigration advisor. The form, apparently signed by the appellant, indicated that the appellant did not want to come to the hearing before the Tribunal and consented to the Tribunal proceeding to make a decision on the application for review without taking any further action to allow or enable the appellant to appear before it. The Tribunal therefore made a decision without seeking further evidence from the appellant.