SZJUP v Minister for Immigration and Citizenship [2008] FCA 630

FEDERAL COURT OF AUSTRALIA

SZJUP v Minister for Immigration and Citizenship [2008] FCA 630

SZJUP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2431 of 2007

LINDGREN J

5 MAY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2431 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJUP

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J

DATE OF ORDER: 5 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

(1) The appeal be dismissed. (2) The appellant pay the first respondent's costs of the appeal. 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 2431 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJUP

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J

DATE: 5 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates Court of Australia given on 27 November 2007. The Federal Magistrates Court dismissed his application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal – the Tribunal has filed a submitting appearance). The Tribunal's decision was signed on 11 October 2006 and sent to the appellant on 2 November 2006. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant a Protection (Class XA) visa to the appellant. 2 The appellant is a citizen of the People's Republic of China. Before the Tribunal he claimed to have a well-founded fear of persecution due to his practice of Falun Gong. 3 The appellant claimed to have become a member of Falun Gong in 1997 and to have assisted his uncle to "develop" new members. He said that the authorities banned Falun Gong in 1999 and that Falun Gong activities became illegal. The appellant claimed that he went to Beijing several times "to appeal for Falun Gong" and was sent to a re-education camp twice by "office 610", and suffered mental and physical torture. The appellant claimed that he could not practise Falun Gong openly and was denied freedom of belief in China. 4 The appellant was invited under s 425 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal. However, he failed to attend the Tribunal hearing or to contact the Tribunal to explain his failure to attend. The Tribunal proceeded pursuant to s 426A of the Act to make a decision on the review. 5 The Tribunal noted that the appellant did not provide details or documentary evidence in support of his claims. The Tribunal found that the claims were lacking in essential detail, for example, in relation to the claim of re-education and torture. The Tribunal considered that because of the appellant's non-attendance at the Tribunal hearing, his claims were left "unclarified" and that questions remained "unanswered". 6 On the evidence, the Tribunal was not satisfied that the appellant had suffered persecution in the past or had a well-founded fear of persecution in the foreseeable future. 7 In his application to the Federal Magistrates Court, the appellant claimed that the Tribunal's decision was not based on a rational and logical foundation; that there was no evidence for the making of the Tribunal's decision; that the Tribunal was biased; and that the Tribunal had not complied with s 424A of the Act. 8 The Federal Magistrate noted the various grounds relied on and did not uphold any of them. The appellant informed the Magistrate that he had been unable to attend the Tribunal due to a leg injury. The appellant repeated that explanation in Court today. Before me, he agreed that he had not contacted the Tribunal to explain the reason for his non attendance. 9 In his notice of appeal to this Court, the appellant relies on four grounds, which are very similar to the grounds of review on which he relied in the Federal Magistrates Court, although they are differently arranged. The grounds of appeal are as follows: (1) I was not given an opportunity to explain my case. (2) The Tribunal had bias against me and failed to consider the claims of my application. (3) The Tribunal failed to carry out its statutory duty. The Tribunal had not notified me the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reason. (4) The satisfaction that I am not a refugee was not based on a rational and logical foundation for this belief. 10 When given the opportunity today to make oral submissions, the appellant said that he merely wished to ask the Court, if possible, to find a way to uphold his claim. 11 In relation to the first ground, I note that the Tribunal received on 13 September 2006, a response from the appellant to the Tribunal's invitation to attend the hearing. The response was to the effect that he wanted to come to the hearing. In the Tribunal's invitation to attend the hearing, the Tribunal informed the appellant that if he thought he might not be able to attend the hearing, he must contact the Tribunal immediately, and that if he did not attend, and the Tribunal did not postpone the hearing, the Tribunal could make a decision on his case without further notice. 12 So far as appears, ss 425 and 425A of the Act were complied with, and it follows that the Tribunal was entitled to make a decision on the review under s 426A of the Act. 13 In relation to the second ground of appeal, it suffices to say that the Federal Magistrate was clearly correct in rejecting the allegation of bias. The Tribunal did consider the claims made by the appellant in his application. It summarised his claims in its reasons for decision. 14 In relation to the third ground of appeal, the Federal Magistrate was correct in deciding that no obligation arose under s 424A of the Act. The Tribunal's reasons for decision discloses no "information" that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review. 15 There is no substance in ground four of the appeal either. It was not irrational or illogical for the Tribunal to consider that there was insufficient evidence entitling it to be satisfied of the appellant's claims. The Tribunal was not satisfied that Australia had protection obligations to the appellant. In these circumstances it was required that the visa be refused: see s 65(1)(b) of the Act. 16 For the above reasons the appeal should be dismissed with costs.