SZGFG v Minister for Immigration & Citizenship [2007] FCA 483

FEDERAL COURT OF AUSTRALIA

SZGFG v Minister for Immigration & Citizenship [2007] FCA 483

SZGFG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2178 OF 2006

GRAHAM J

9 MARCH 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2178 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGFG

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J DATE OF ORDER: 9 MARCH 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be changed to read 'Minister for Immigration and Citizenship'. 2. The appeal be dismissed. 3. The appellant pay the respondent Minister's costs fixed in the agreed sum of $3000. 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 2178 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGFG

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 9 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who is identified for the purposes of these proceedings as SZGFG, was born in China on 11 March 1973. He secured a passport from the People's Republic of China on 20 July 2004 and an Indonesian visa on 24 September 2004. On 30 September 2004 he arrived in Australia. On 8 October 2004 he applied for a Protection (Class XA) Visa. That Application was refused by a Delegate of the Minister on 8 November 2004. 2 On 8 December 2004 the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's Delegate's decision. On 10 December 2004 a letter was sent to the appellant's specified mailing address by registered post acknowledging receipt of his Application for Review by the Tribunal. 3 The letter apparently contained a Refugee Review Tribunal brochure, an 'Appointment/Cancellation of Authorised Recipient' form, a 'Change of Address Details' form, a Client Service Charter and multilingual advice. The Tribunal's letter called on the appellant to tell the Tribunal immediately if he changed his home address, his mailing address, his telephone number or if there was any change in the name or address of his Authorised Recipient. 4 The appellant did not nominate in his Application for Review any Authorised Recipient. He indicated a residential address which was the same address as provided by him in his Application for a Protection (Class XA) Visa. The Application for Review specified a different address as his mailing address or address for service. 5 On 30 December 2004 a further letter was sent by the Tribunal to the appellant by registered post directed to him at his address for service. That letter invited the appellant to attend a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. It also indicated that he could ask the Tribunal to obtain oral evidence from another person or persons. 6 The hearing which was notified was fixed for 10:00 am on Friday 4 March 2005 at level 29, Pacific Power Building, 201 Elizabeth Street, Sydney. A checklist was completed in the Tribunal's offices on 15 February 2005 which recorded that the information had been sent to the address for service recorded on the case management system and that there had been no change of address notified. 7 By a letter dated 11 March 2005 to the appellant at his nominated address for service again sent by registered post the appellant was advised that the Tribunal had considered all the material relating to his case and made its decision and that that decision would be handed down on 1 April 2005. The appellant had failed to attend the hearing before the Tribunal at the specified time and place on 4 March 2005. The Tribunal Member's decision was adverse to the appellant. That decision of 10 March 2005 was handed down on 1 April 2005. A letter enclosing a copy of the decision was forwarded by the Tribunal to the appellant by registered post at his specified address by letter dated 1 April 2005. 8 The decision of the Tribunal Member was recorded on some six typed pages. It contained headings 'BACKGROUND', 'THE LEGISLATION', 'Definition of "Refugee"', 'Claims and Evidence', 'Findings and Reasons', 'Conclusion' and 'Decision'. The Tribunal Member recorded that the claims of the appellant were to be found in the Department's file and noted that it had regard to the appellant's Protection Visa Application and the Delegate's decision record as well as the material referred to in the Delegate's decision and other material available to it from a range of sources. The Tribunal Member summarised the appellant's claims as follows: 'In support of the application for a protection visa, the applicant provided a statement (Folios 3-4, DIMIA file) in which he claimed that: · He left China to avoid persecution because he is a Falun Gong practitioner. He was a taxi driver. He had back pains and in 1997, a friend told him that Falun Gong might be helpful. He and others started practising and his back pain was relieved. He "transmitted Falun Gong to other taxi drivers, and they all got benefits from practising it". · In May 2000, he was stopped by a policeman when he was "posting Falun Gong flyers in front of the government building…". The police officer beat him and the applicant felt he was on "verge of dying". He lost consciousness and later found himself in a Detention Centre. The police physically assaulted him. Upon lodging his application for review by the RRT, the applicant provided a statement (Folio 1) essentially reiterating his claims.' 9 The Tribunal was not satisfied that the appellant was a Falun Gong practitioner nor was it satisfied that in May 2000 he had been stopped by a policeman when he was 'posting Falun Gong flyers in front of the government building …'. The Tribunal was not satisfied that a police officer had assaulted him. It was not satisfied that he had suffered any of the claimed harm. The Tribunal Member rightly pointed out that the appellant had not provided details relating to many aspects of his claims. He had not provided details about when and how he practised Falun Gong. He did not give details about how he 'transmitted Falun Gong to other taxi drivers and they all got benefits from practising it'. 10 The Tribunal Member observed that the appellant made a series of 'vague and general claims lacking in important details'. In the circumstances the Tribunal was unable to be satisfied that the appellant had suffered any Convention-related harm, nor could it be satisfied that there was a real chance of such harm occurring to the appellant in the reasonably foreseeable future. 11 The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention-related reason. It was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ('the Refugees Convention'). In the circumstances the Tribunal affirmed the decision of the Minister's Delegate not to grant the appellant a Protection Visa. 12 On 4 May 2005 the appellant filed an Application for constitutional writ relief in the Federal Magistrates Court of Australia in respect of the decision of the Tribunal. That Application nominated the same address for the appellant as had been indicated in his original Visa Application and his Application for Review before the Tribunal. However, it nominated a different address for service from the address for service which had been specified in the Application for Review lodged with the Tribunal. 13 An Amended Application was filed in the Federal Magistrates Court on 10 August 2005. That Application came before Federal Magistrate Jarrett on 17 October 2006. The appellant appeared assisted by an interpreter on that occasion to present his case. The learned Federal Magistrate dismissed the Application, referred to in his Honour's orders as being an Application 'filed on 4 December 2005'. His Honour also ordered the appellant to pay the respondent Minister's costs fixed in the sum of $4500. 14 What is presently before the Court is an appeal from the judgment of Federal Magistrate Jarrett in which his Honour dismissed the Application which was then before him being the Amended Application of 10 August 2005. 15 Proceedings before the Tribunal are inquisitorial rather than adversarial. The Tribunal Member conducting an inquiry is obliged to be fair. However, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the appellant under his Application for review to the Tribunal it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a 'refugee' within the meaning of the Refugees Convention had been made out. 16 Section 65 of the Migration Act 1958 (Cth) ('the Act') requires the Minister to either grant a visa or refuse a visa after considering a valid Application for same. If satisfied that, amongst other things, 'the other criteria for it prescribed by this Act or the regulations have been satisfied', the Minister is to grant the visa. If not so satisfied the Minister is to refuse to grant the visa. Section 36(2) of the Act specifies the criterion for a Protection Visa. The relevant criterion is that the applicant for the visa be 'a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the [Refugees Convention]'. 17 Relevantly, the Refugees Convention provided that the term 'refugee' should apply to any person who '… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…'. 18 The Minister's Delegate was not satisfied that the relevant criterion had been satisfied in the appellant's case and, similarly, the Tribunal was not so satisfied. The appellant having failed to appear before the Tribunal on the day on which and at the time and place at which he was scheduled to appear empowered the Tribunal to make a decision on the review without taking any further action to enable or allow the appellant to appear before it (see s 426A(1) of the Act). Generally, in relation to non-attendance of parties before the Tribunal I would refer to my reasons for judgment in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 415–418 [210]-[216] and 421–423 [232]-[234]. 19 The grounds of appeal specified in the Notice of Appeal presently before the Court were: '1. There is a breach of the rules of natural justice occurred in connection with the making of the decision. 2. The Tribunal failed to exercise its jurisdiction by not observing procedures which it was required by the Act to observe. 3. The decision was contrary to law.' 20 When invited to address the Court in respect of the issues raised in the Notice of Appeal the appellant had nothing to say about any jurisdictional error for which he contended on the part of the Tribunal. He gave a short account of his departure from China and his pleasure at being in Australia where he says Australia and its people have treated him fairly. 21 He attempted to explain his absence from the Tribunal hearing on 4 March 2005 by suggesting that the letter of 30 December 2004 inviting him to the hearing had passed through a number of hands and only reached him two to three days before the hearing date. He indicated that when he got to the city on, I assume, the appointed hearing date he 'couldn't find the place'. The appellant's occupation before coming to Australia was that of a taxi driver. 22 He concluded his submissions by indicating that he hoped that his case could be resubmitted to the Tribunal for consideration. Plainly, the appellant has made out no case whatsoever for an order that the appeal be allowed and that constitutional writ relief be ordered in respect of the decision of the Tribunal. There was no apparent error in the Tribunal's consideration of the appellant's case and it was fully entitled to proceed as it did to decide his Application for Review in his absence. 23 The appeal should be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.