FEDERAL COURT OF AUSTRALIA SZEVI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1781 SZEVI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR NSD 1730 OF 2005 GRAHAM J 1 DECEMBER 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1730 OF 2005 BETWEEN: SZEVI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: GRAHAM J DATE OF ORDER: 1 DECEMBER 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 1730 OF 2005 BETWEEN: SZEVI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: GRAHAM J DATE: 1 DECEMBER 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 What is presently before the court is an appeal from a decision of a Federal Magistrate handed down on 29 August 2005. This appeal was listed for hearing before me at 2.15 pm today. The Appellant has not appeared. His name has been called three times outside the court or, more accurately, the name by which he is known for the purposes of these proceedings "SZEVI". Notwithstanding that his name has been called three times, he has not appeared. 2 The Appellant was born in Liaoning in the Peoples Republic of China on 7 May 1972. On 28 July 2003 he secured a passport from the Peoples Republic of China and on 29 September 2003 a temporary visa was issued to him permitting him to enter Australia. The Appellant arrived in Australia on 11 October 2003. On or about 19 October 2003 he lodged an application for a Protection (Class XA) Visa, which was refused by a delegate of the Minister on 20 January 2004. The Appellant then lodged an application for review in the Refugee Review Tribunal ("the Tribunal") on 20 February 2004. He was invited to indicate whether he wished to appear at a hearing before the Tribunal and on 2 April 2004, the Appellant indicated that he would wish to appear. The hearing before the Tribunal took place on 16 June 2004. The decision of the Tribunal affirming the decision of the Minister's delegate not to grant the Appellant a protection visa was handed down on 27 May 2004. 3 On 7 July 2004 the Appellant proceeded to file an application for the issue of constitutional writs in respect of the decision of the Tribunal in the Federal Magistrates Court of Australia. Thereafter, there was an amended application filed 30 December 2004 and a further amended application filed 5 April 2005. The matter was heard by a Federal Magistrate on 2 August 2005, and on 29 August 2005 the Federal Magistrate's decision was handed down. From that decision, an appeal has been brought to this court by a notice of appeal filed 16 September 2005. 4 The grounds specified in the notice of appeal are: "2. I was not given proper opportunity to explain my case, the interpreting service is not proper and I could not explain myself in a proper way because of that. 3. The Tribunal had bias against me and did not all the information provided during my hearing. 4. I found the above mentioned errors and filed an review application to Federal Magistrates Court, the Judge did not agree with me and did not accept my explanation at my hearing, and my application was dismissed with all these RRT's errors." 5 This matter was listed before me for directions on 13 October 2005. On that day I fixed the matter for hearing at 2.15 pm today and also directed that the Appellant file and serve any amended notice of appeal and written submissions no later than five clear working days before the hearing date. It is now 2.55 pm on 1 December 2005 and the appellant has not appeared. In addition, no amended notice of appeal has been filed with the court, nor have any written submissions in support of the notice of appeal been filed. Mr Jordan of counsel, who appears for the respondent Minister, has drawn my attention to the provisions of section 25(2B)(bb)(ii) of the Federal Court of Australia Act which empowers the court to make an order that the appeal be dismissed for failure of the appellant to attend the hearing. 6 In addition, provision is made in Order 52 rule 38A of the Federal Court Rules for a hearing to proceed if a party is absent when the appeal is called on for hearing and the court may under that rule proceed with the hearing generally. Given the view which I have formed as to the case which the Appellant wishes to present it seems to me more appropriate in the present circumstances to proceed with the hearing. 7 In the Appellant's original application for a protection visa he included an attachment which said: "I started to learn 'Fa Lun Gong' and have become a member since 1998... On 25th April 1999, I was in Zhong Nan Hai, Beijing to present a petition to the government of People's Republic of China. On 22nd July 1999, the government announced 'Fa Lun Gong' Association to be an illegal organization and started to arrest the members of the organisation. I had to hide here and there worrying about being identified by government officials. … If I return to China I fear the government of the PRC will persecute me. I am a member of 'Fa Lun Gong'. The reason why I left China is because I worried that if I did not leave, I would be persecuted … If I go back, I will be detained and persecuted. 'Fa Lun Gong' has been classified to be and illegal organization to be condemned. The government of PRC will not protect me." 8 In his application for review to the Tribunal the Appellant recorded his reasons for making his application as follows: "I have been practising 'Falungong' in China and in Australia. Chinese Government has banned 'Falungong'. a lot of members have been sentenced to imprisonment. I was investigated by the Chinese authority. I suffered mental torment from the Chinese authorities. Worrying about my safety, I came to Australia for protection. I hope that my application can be reassessed at RRT." 9 The Tribunal did not accept the evidence of the Appellant. In her reasons for decision the Tribunal member said: "I accept that the Applicant is a citizen of the People's Republic of China. In dealing with this application the Tribunal has formed the view that the Applicant lacks credibility and his claims cannot be accepted. The Applicant's evidence is internally inconsistent and contradictory. This leads me to reject the Applicant's claims and to affirm the delegate's decision not to grant the Applicant a protection visa. I do not accept that the applicant is a Falun Gong practitioner. … I do not accept that the Applicant travelled to Beijing at any time in connection with an involvement in Falun Gong movement. … I do not accept the Applicant's evidence that he was detained for a period of two days due to an involvement in Falun Gong. … I do not accept that the Applicant was involved in distributing pamphlets relating to the Falun Gong movement. … I also reject the Applicant's claim that the Chinese authorities will persecute him. … The Applicant's claims are entirely dependent upon an acceptance of him as a credible witness. The Applicant was not generally credible and the Tribunal does not regard the inconsistencies and other matters dealt with above as explicable in terms of any difficulty he faces as an asylum seeker. The Tribunal does not accept that the Applicant was a Falun Gong practitioner or that he fears harm as a member of a particular social group, namely Falun Gong, or for reasons of actual or imputed political opinion, or religion, or indeed any Convention reason, or at all." 10 The Tribunal was not satisfied that the Appellant was a person to whom Australia had protection obligations under the Refugees Convention, as amended by the Refugee Protocol. 11 When the matter was before the Federal Magistrates Court an attempt was made by the learned Magistrate to distil from the material provided by the Appellant a number of complaints made in relation to the Tribunal's handling of the matter. Those complaints were eight in number and were dealt with comprehensively by the learned Federal Magistrate. I need say no more than I agree with his careful consideration of each of them and the conclusions which he reached in relation to them. 12 When the notice of appeal was filed in this court an affidavit by the Appellant was also filed in which he repeated much of what had been canvassed before. The affidavit included the following: "1. I believe that when the Tribunal officer considered my application she had bias against me. I was involved with some Falungong activities such as distributing leaflets, introducing Falungong to friends and relative, I was detained by local police for 2 days, and was persecuted. All these were not accepted by the officer as I had not mentioned them at my initial application to DIMIA. She did not believe just because of that. 2. The Tribunal officer personally believed that people who are Falungong members can never passed through the custom of China. 3. I did not contact anyone who was a Falungong member after the Tribunal officer did not believe, she personally believed that if I were a member of Falungong I should have contacted other Falungong members as soon as I came to Australia. All of the above mentioned are induced by actual bias of the officer. I threfore (sic) filed my review application to the Federal Magistrates Court of Australia. However, the Judge did not agree with me about the above mentioned errors without further investigation. I believe that RRT did fall into jurisdictional errors and my application should be back to RRT for reconsideration. I hereby file a Notice of Appeal to the Federal Court." 13 It seems to me entirely appropriate that the matter should be dealt with under Order 52 rule 38A(1)(d) of the Federal Court Rules. In circumstances where on the face of the material before the court the appeal is hopeless, and no jurisdictional error has been pointed to on the part of the Tribunal, the Appellant ought not now be permitted to advance a case which he failed to advance before the Federal Magistrates Court when he had the opportunity to do so. 14 I agree with the reasons of the Federal Magistrate. The appeal should 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 Graham J. Associate: Dated: 9 December 2005 The Appellant did not appear. Counsel for the Respondent: D Jordan Solicitor for the Respondent: Phillips Fox Date of Hearing: 1 December 2005 Date of Judgment: 1 December 2005