SZGST v Minister for Immigration and Citizenship & Anor [2007] FCA 326

FEDERAL COURT OF AUSTRALIA

SZGST v Minister for Immigration and Citizenship & Anor [2007] FCA 326 Migration Act 1958 (Cth) s 65

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 followed NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 followed NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 followed SZGST v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2542 OF 2006

DOWNES J

7 MARCH 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2542 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGST

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWNES J DATE OF ORDER: 7 MARCH 2007

WHERE MADE: SYDNEY

THE COURT ORDERS:

1. Amend the title of the first respondent to 'Minister for Immigration and Citizenship'. 2. Appeal 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 2542 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGST

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWNES J

DATE: 7 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a national of the People's Republic of China. He arrived in Australia in December 2004. He claimed a protection visa on the basis that he had a well-founded fear of persecution based on his membership of the Falun Gong. His application was refused by the Minister's delegate. He sought review by the Refugee Review Tribunal. The Tribunal notified the appellant that it was unable to make a decision in his favour on the material before it and invited him to come to a hearing and give oral evidence. The appellant completed a form saying that he would attend on the hearing day but he did not attend. The Tribunal considered the appellant's application on the material before it and affirmed the decision not to grant a protection visa. 2 In his findings, Mr Giles Short, who constituted the Refugee Review Tribunal, referred to the appellant's claims as vague and lacking in detail. He identified a number of inadequacies. As to a number of critical matters, he found that he was not satisfied as to them. He concluded that he was not "satisfied, on the evidence before [him], that the [appellant] had a well-founded fear of being persecuted for a Convention reason if he returned to China". 3 The facts of this case are quite close to the facts of three unanimous decisions of Full Courts of this Court. The members of each court were different so that the decisions represent the views of nine judges of this Court. The decisions are NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ). In each case the court emphasised the proposition that the task of the Minister, through his delegate, and the Refugee Review Tribunal on appeal, pursuant to s 65 of the Migration Act 1958 (Cth), is to consider whether they are satisfied that the requirements for the grant of a visa have been satisfied. In NAVX at paragraph [5] the Full Court said this: "In assessing the adequacy of [the Tribunal's] reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application." I note that the appellant in that case was also a Chinese national who claimed refugee status on the basis of his fear of persecution as a Falun Gong practitioner. 4 The present appellant made no attempt to inform the Tribunal before the assigned hearing that he would be unable to be there. Not having done so, it seems to me that in the light of the authorities the outcome of this appeal cannot be in doubt. Before me this afternoon the appellant has said that he suffered an injury, I think on the day of the appeal before the Tribunal. He has not explained how it was that he was engaged in the activity that caused this injury when one would expect that he would have been making his way to the hearing. However, it does not seem to me that even if the appellant could provide an impeccable explanation for not attending that it would assist his case. This is because the only matter before me is whether the decision of the Tribunal was tainted by jurisdictional error, and that has to be determined by reference to the time the decision was made. 5 Unless some application to delay the determination while material was furnished by the appellant was made prior to the making of the determination, I cannot see that any relevant jurisdictional error can be made out, however good the explanation of the delay is and however persuasive the material supporting the claim that was ultimately filed happens to be. I am not suggesting that this is a case in which there is an impeccable explanation of delay or that persuasive evidence has now been filed because the explanation of the delay would require a lot more supporting material before it could be considered to be satisfactory and there is so far no further material. The appellant has asked for more time to furnish material but it is apparent that he has not taken the time to supply that in advance, either to the Federal Magistrates Court or to this Court in the hope, even perhaps as a result of some generous conduct on the part of the Minister, that a decision might be made to reconsider the application. 6 The reality is that the question before me is whether Emmett FM erred in dismissing the appellant's application for review of the Tribunal's decision on the ground that it did not raise an arguable case. From what I have said it follows that no issue arises as to whether the appellant has some explanation for not attending the hearing before the Tribunal or whether the appellant could now establish a satisfactory case. 7 I am bound by the three Full Court decisions I have referred to. They require me to uphold the decision of the Federal Magistrates Court. The present appeal is in form incompetent. That is because it is from a decision which is interlocutory in nature and leave to appeal has not been granted. For that reason the appeal must be dismissed. In other circumstances I might have considered entertaining an application for leave to appeal. However, there is no point in my entertaining such an application today because, for reasons I have already given, it must be unsuccessful. In the result the appeal must be dismissed and will be dismissed with costs.