SZEYE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1689

FEDERAL COURT OF AUSTRALIA

SZEYE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1689 SZEYE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL NSD 1830 OF 2005 SACKVILLE J 24 NOVEMBER 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 1830 OF 2005

BETWEEN: SZEYE

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 24 NOVEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's 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 WALESDISTRICT REGISTRY NSD 1830 OF 2005

BETWEEN: SZEYE

APPELLANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: SACKVILLE J

DATE: 24 NOVEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court delivered on 8 September 2005. That Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('RRT') affirming a decision of a delegate of the first respondent ('the Minister') to refuse to grant the appellant a protection visa. 2 The appellant is a citizen of the People's Republic of China ('PRC'). He arrived in Australia on 15 January 2004 and on 23 January 2004 he lodged an application for a protection visa. The appellant claimed that he was a practitioner of Falun Gong and that he been detained on three separate occasions by the police in the PRC because he had been in charge of the Tianjin Falun Dafa Centre. He further claimed that on one of these occasions he had been beaten and tortured. He said that his family had bribed an official to secure a passport and it was because he feared that he would be killed that he had left the PRC and travelled to Australia. 3 On 8 April 2004, the RRT wrote to the appellant advising that it was unable to make a favourable decision on the papers and inviting him to give oral evidence and present argument at a hearing to take place on 25 May 2004. No response was received to this invitation. Attempts were made to contact the appellant by telephone, but these were unsuccessful. 4 The appellant did not appear before the RRT at the time of the scheduled hearing. In these circumstances, the RRT determined pursuant to s 426A of Migration Act 1958 (Cth) to make a decision without taking any further action to enable the appellant to appear before it. 5 The RRT noted that the appellant had provided no evidence whatsoever to support his claim that he had been in charge of the Tianjin Falun Dafa Centre. Nor had details been provided about the detention centres to which he was allegedly taken. No medical evidence was advanced to substantiate the appellant's claim that he had been 'on the edge of death' as the result of his experiences. 6 The RRT pointed out that independent evidence relating to the PRC suggested that if a person is able to obtain a passport to leave the country, that person is not of interest to the authorities. A high profile dissident or a person wanted by the Public Security Bureau would not be able to obtain a false passport as the result of bribery. Moreover, the RRT noted that the appellant had travelled to Germany in 2003 and returned to the PRC prior to leaving that country for Australia. In these circumstances, the RRT concluded that the appellant was of no interest to the authorities in the PRC. 7 In the absence of any detail supporting the appellant's claim and without the opportunity to question the appellant about his knowledge of and commitment to the practice of Falun Gong, the RRT could not be satisfied that he was a genuine adherent of Falun Gong, nor that he would face harm in the reasonably foreseeable future if he were to return to the PRC. The RRT was therefore not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees. 8 The appellant attended the hearing before the Federal Magistrates Court. He confirmed that he had not attended the RRT hearing and the Magistrate found that he had offered no satisfactory explanation as to why he made no attempt to obtain assistance in reading official correspondence. His Honour was satisfied that the RRT had power to proceed under s 426A of the Migration Act in the manner in which it did. 9 Counsel for the Minister drew the Magistrate's attention to the fact that no notice had been provided under s 424A of the Migration Act that the RRT would rely on information in the appellant's visa application relating to his travel to Germany prior to leaving the PRC for Australia. However, the Magistrate accepted the Minister's submission that the RRT's references to and comments about this information did not form 'an integral part' of its reasoning within the established interpretation of s 424A(1)(a): VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, at [29]-[33]; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA FC 158, at [51]-[54]. The 'essential reason' for affirming the delegate's decision was the inability of the RRT to be satisfied as to the truth of the claims made by the appellant due to his absence from the hearing to which he was invited. 10 The Magistrate noted that the appellant had filed no substantive submissions to support his application for judicial review. Moreover, he had had the opportunity to obtain legal advice from an independent legal practitioner under the free legal advice scheme. The appellant, however, had declined the opportunity to participate in that scheme. 11 The Magistrate concluded that the RRT's decision was not affected by jurisdictional error. Accordingly, the application for judicial review was dismissed. 12 The grounds of appeal relied upon by the appellant are as follows: '(1) I face a risk of being jailed if I return to my original country – PR China. (2) I am a person who are [sic] entitled to a protection visa'. 13 The grounds stated in the notice of appeal provide no basis for establishing error on the part of the Magistrates Court. Moreover, in my view, the Magistrate correctly dismissed the application. While the Minister's counsel acted properly in drawing the Court's attention to s 424A of the Migration Act, the Magistrate correctly applied that provision in the light of the authorities. 14 The appeal must therefore be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.