SZDWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1112

FEDERAL COURT OF AUSTRALIA

SZDWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1112

MIGRATION – no issue of principle SZDWZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 818 OF 2005 CONTI J 11 AUGUST 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 818 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDWZ

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 11 AUGUST 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant is to pay the respondent's costs assessed at $2,500.00. 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 818 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDWZ

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 11 AUGUST 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

The appellant's claims and the Tribunal's decision 1 This is an appeal from the reasons for judgment of Federal Magistrate Barnes given on 4 May 2005 that dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 13 May 2004. The Tribunal affirmed the decision of a ministerial delegate that rejected the appellant's application for a protection (Class XA) visa on 5 December 2003. 2 The appellant is a citizen of the People's Republic of China who arrived in Australia on 24 September 2003 on a transit visa that permitted the appellant to remain in Australia for one day from the date of each arrival. The appellant lodged an application for a protection visa on 25 September 2003. 3 In written statements contained in his application for a protection visa, the appellant claimed to fear arrest and imprisonment by the PSB, the local police and other government authorities upon his return to China from studying in Malaysia and New Zealand. This was because of the activities in which he had engaged whilst residing in those countries, which was said to have been the practice of his catholic religious beliefs and his promotion of pro-democratic and anti-government ideologies through numerous speeches. His passport contained two long-stay visas for Malaysia and New Zealand. The appellant claimed that he could no longer travel back to China because he would be detained and interrogated, as other members of his 'group' had experienced. The appellant also claimed that he could not return back to Malaysia and New Zealand because Chinese secret agents would identify him there and kidnap him. The appellant had also indicated on the application form, in answer to the question 'Is your travel document valid for return to your home country?', that it was but that 'it has been blacklisted'. 4 The appellant's statement in support of his application for review stated that he disagreed with the ministerial delegate's decision to refuse his application and that he would provide the Tribunal with a supporting statement once it was translated. The appellant also indicated that he wished to appear for a hearing in 'due course'. 5 The applicant claimed to have left China legally through Beijing airport in February 2003 on a passport issued in his own name which was issued in September 2001 in Shanxi and was valid until September 2006. The transit visa on which he entered Australia was issued in Auckland in September 2003. 6 No further information was provided by the appellant to the Tribunal about his claims, and the appellant did not attend his scheduled hearing, in spite of invitations being sent to both his address and to his authorised recipient. The Tribunal's reasons for decision outline the steps that were taken by the Tribunal to ascertain whether the appellant would attend the scheduled hearing, which included a phone call to his advisor and authorised recipient on 5th and 7th April 2004 (9 and 7 days respectively prior to the hearing). The Tribunal was informed that messages had been left by the advisor with the appellant but that they had not been replied to. When the appellant did not appear on the day and time and place where he was scheduled to appear, the Tribunal proceeded to make its decision on the review without taking any further action to enable the appellant to provide arguments or appear before it, as it was entitled to do under s 426A of the Migration Act 1958 (Cth) ('the Act'). 7 The Tribunal accepted that the appellant was a Chinese national. However it was not satisfied that the appellant had faced persecution in China by reason of his religion, nor was the Tribunal satisfied that he faced a real risk of persecution by reason of his catholicism upon his return to China. The basis for that finding was the vague and generalised way in which the appellant described his claim, in particular, in relation to what was likely to happen to him were he to return to China, and to how he practised catholicism and why that was likely to lead to adverse attention from authorities. The Tribunal found that it was unable to establish the facts of the appellant's case. In light of the entire lack of detail of the appellant's other claims, the Tribunal reached a similar conclusion.