FEDERAL COURT OF AUSTRALIA SZGXA v Minister for Immigration and Citizenship [2007] FCA 777 SZGXA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD296 OF 2007 COLLIER J 21 MAY 2007 BRISBANE (HEARD IN SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NSD296 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGXA Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE OF ORDER: 21 MAY 2007 WHERE MADE: BRISBANE (HEARD IN SYDNEY) THE COURT ORDERS THAT: 1. The Refugee Review Tribunal be joined as a second respondent. 2. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NSD296 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGXA Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE: 21 MAY 2007 PLACE: BRISBANE (HEARD IN SYDNEY) REASONS FOR JUDGMENT 1 This is an appeal against a judgment of Emmett FM of 14 February 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 21 June 2005 and handed down on 12 July 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse grant of a protection visa to the appellant. Background 2 The appellant is a citizen of the People's Republic of China ("PRC") who arrived in Australia on 28 November 2004 and lodged an application on 2 December 2004 for a protection visa. 3 In his application for a protection visa the appellant claimed to have a well-founded fear of persecution owing to his practice of Falun Gong. The appellant claimed that he had been a Falun Gong practitioner in the PRC since 1997. He claimed to have gone to Beijing to support other members and conducted demonstrations and petitions but he was not arrested although others with him were. The appellant claimed he practiced Falun Gong in secret. He claimed that at the end of 2003 members of his factory were detained for their Falun Gong practice and police began to investigate him. 4 On 27 January 2005 a delegate of the first respondent refused the appellant's application for a protection visa. On 2 March 2005 the appellant applied to the Tribunal for a review of that decision. The decision of the Tribunal 5 On 27 April 2005 the appellant was invited to give oral evidence and to present arguments at hearing on 17 June 2005. The appellant did not reply to the hearing invitation and on the scheduled day and time the appellant did not appear before the Tribunal. Consequently, the Tribunal proceeded pursuant to s 426A of the Migration Act 1958 (Cth) ("the Act") to make a decision without enabling the appellant to appear before it. 6 The Tribunal found that it could not be satisfied as to the appellant's claims on the limited, vague and unreliable evidence before it and affirmed the decision not to grant a protection visa. Grounds before the Federal Magistrate 7 The appellant sought judicial review of the Tribunal's decision on 5 August 2005. In an amended application filed on 18 October 2005 in the Federal Magistrates Court, the appellant asserted the following eight grounds: · the Tribunal did not consider the chance of persecution on the basis of membership of a particular social group · the Tribunal's satisfaction was not based on reasoning which provided a rational or logical foundation for the belief · the Tribunal acted with bias · the decision was not supported by evidence or materials · the decision was made based on assumptions · the Tribunal did not believe the claims · the Tribunal did not follow the correct procedures · there was jurisdictional error. Decision of the Federal Magistrate 8 Emmett FM, in considering the Tribunal's decision in light of the claims made by the appellant, noted that there was no contention that the invitation to attend the hearing and present oral submissions was not sent in accordance with the Act. The Federal Magistrate found the decision of the Tribunal to proceed pursuant to s 426A of the Act was without error. 9 In relation to grounds one, two, four, five and six, the Federal Magistrate found the Tribunal did not have a duty to make further enquiries and to refer to additional evidence before making a decision. The Tribunal was not under any obligation to obtain information that had not been provided by an appellant. The Tribunal made clear that, due to the limited, vague and unreliable evidence before it, it was not satisfied that the criteria for a protection visa had been met and in those circumstances the learned FM found that the Tribunal was bound to refuse the application for a protection visa. 10 Her Honour was unable to find jurisdictional error in the remaining grounds. In respect of ground three Emmett FM found no evidence to support the assertion of bias. Further, no inference of bias or prejudgment could be drawn from the mere fact that the Tribunal made adverse findings. The Federal Magistrate addressed ground seven by finding the Tribunal's decision to proceed with the review without taking any further steps to enable the appellant to appear before it was a decision open to it pursuant to s 426A of the Act and was without error. Ground eight was a general assertion of error that disclosed no error capable of review and was accordingly rejected. Furthermore, there was no information pursuant to s 424A(1) of the Act and thus no enlivenment of the obligations under s 424A of the Act. 11 As the Tribunal's decision was not affected by jurisdictional error, her Honour found it was a privative clause decision and dismissed the application. Appeal to this Court 12 The notice of appeal to the Federal Court filed 30 November 2006 raises four grounds of appeal, namely that the Tribunal failed to refer to independent information in the consideration of the application, the Tribunal had acted with bias, the Tribunal failed to consider the application according to s 424A of the Act, and the Federal Magistrate failed to find those errors. 13 At the hearing before me the appellant appeared in person. The appellant did not file any written submissions and chose not to make any oral submissions. The respondent relied on written submissions filed 17 May 2007. 14 Considering the grounds of appeal of the appellant in turn: 1. in relation to the ground that the Tribunal failed to refer to independent information for the consideration of the appellant's application, and the Federal Magistrate failed to recognise this error, I accept the submission of the respondent that the Tribunal was not required to consider independent country information in circumstances where it was not satisfied of the appellant's claims because of his non-attendance at the hearing, and further that the Tribunal was under no duty to inquire: Gomez v MIMA (2002) 190 ALR 543, MIMA v SGLB (2004) 207 ALR 12. Accordingly this ground of appeal fails. 2. in relation to the ground that the Tribunal was biased, and Emmett FM erred in failing to find that the Tribunal was biased, the ground is not particularised. I note before her Honour the appellant submitted however that the Tribunal was biased because the appellant had not attended the interview offered by the Tribunal. I agree with her Honour where she states at para 30 of her decision there is nothing in the conduct by the Tribunal of its review, including the making of its decision, that may reasonably lead to the conclusion that the Tribunal did not bring an impartial mind to the resolution of the question to be decided, or otherwise approached its task with a mind not open to persuasion. Further, I agree with her Honour that no inference of bias or prejudgment can be drawn from the mere fact that the Tribunal has made adverse findings (at para 31). Accordingly this ground of appeal fails. 3. in relation to the ground that the Tribunal failed to consider the application according to s 424A Migration Act 1958 (Cth), and the Federal Magistrate erred in failing to recognise this error, I adopt the finding of Emmett FM at para 37 of her judgment that the reason for the Tribunal affirming the decision under review was the lack of information provided by the appellant to substantiate his claims, and that further there was no information to which the Tribunal had regard that enlivened the Tribunal's obligations under s 424A(1) of the Act. Accordingly, this ground of appeal fails. 4. As in my view the Federal Magistrate made no error in her findings with respect to grounds of appeal 1, 2 and 3, it follows that this ground of appeal also fails. THE COURT ORDERS THAT: 1. The Refugee Review Tribunal be joined as a second respondent. 2. The appeal be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 21 May 2007 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: T Reilly Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 21 May 2007 Date of Judgment: 21 May 2007