FEDERAL COURT OF AUSTRALIA SZHDQ v Minister for Immigration and Citizenship [2008] FCA 771 Federal Court of Australia Act 1976 (Cth) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) SZHDQ v Minister for Immigration & Anor [2008] FMCA 231 SZHDQ v MINISTER FOR IMMIGRATION and CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 925 of 2008 GORDON J 26 MAY 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 925 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHDQ Appellant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GORDON J DATE OF ORDER: 26 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 to be taxed in default of agreement. 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 925 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHDQ Appellant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GORDON J DATE: 26 MAY 2008 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Upon this appeal from the Federal Magistrates Court (SZHDQ v Minister for Immigration & Anor [2008] FMCA 231) being called on for hearing, the appellant did not appear. For more than one reason the appeal should be dismissed. 2 On 21 January 2005, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs, as it was then known. The first respondent refused the application for a protection visa on 6 April 2005. On 27 April 2005, the appellant applied to the Refugee Review Tribunal ("the Tribunal") for a review of that decision. On 30 August 2005, the Tribunal affirmed the decision of the first respondent. 3 The Tribunal's decision was quashed by the Federal Magistrates Court which remitted the appellant's matter to the Tribunal for reconsideration, according to law, on 9 February 2007. After the matter was remitted, a differently constituted Tribunal wrote to the appellant inviting him to provide any further documents or written arguments not previously provided, and informed him of the process of reconsideration. It invited the appellant to attend a hearing. On 28 April 2007, the appellant appeared before the Tribunal at which time he also provided the Tribunal with copies of two untranslated documents. 4 On 26 June 2007, the Tribunal again affirmed the first respondent's decision of the delegate not to grant the appellant a protection visa. The appellant sought judicial review of that decision by the Federal Magistrates Court on the grounds that: 1. The [Tribunal] based [its] decision on the first [T]ribunal and did not take into account the second hearing. 2. Procedures that were required by the Migration Act[1958 (Cth), ("the Act")] and the Migration Regulations [1994 (Cth)] were not observed. 5 On 15 February 2008, Barnes FM dismissed the appellant's application. On 4 March 2008, the appellant appealed to this Court. The appellant's grounds are the same grounds raised before the Federal Magistrates Court, save for the addition of one further sentence: The [Tribunal] disregards the fact that I am still a Falun Gong practitioner and will be persecuted if I go back to China. THE TRIBUNAL DECISION 6 In his protection visa application and before both Tribunals, the appellant claimed to fear persecution in China due to his practice of Falun Gong. He alleged that he and a friend were re-educated at the "6.10" office after Falun Gong was banned and agreed not to practise again. According to the appellant, he later distributed Falun Gong related pamphlets, was detained again, and was also pressured by the authorities to close his businesses. In addition, the appellant raised a claim that he had continued practising Falun Gong after arriving in Australia. 7 The Tribunal found that the appellant was not a genuine Falun Gong practitioner and rejected his claims. The Tribunal found that the appellant's limited knowledge of Falun Gong exercises and other precepts were inconsistent with him being a genuine practitioner. While the Tribunal acknowledged that it "may be difficult for applicants to articulate the principles and meanings behind the practice of Falun Gong during a hearing situation", it found that the appellant had been given sufficient opportunity to articulate his understanding of the belief system. The Tribunal's negative finding on his commitment to Falun Gong led the Tribunal to reject the appellant's claim that he was detained in China on this basis, and it further disregarded two documents tendered by the appellant in support of this contention. 8 Taking into account its general findings, the Tribunal did not accept that the appellant had suffered any harm on the basis of his real or imputed Falun Gong practice in China, or the practice of Falun Gong in Australia. It could not, therefore, be satisfied that the appellant held a well-founded fear of Convention-related persecution in China. THE COURT BELOW 9 The Federal Magistrate could find nothing to support any claim that the Tribunal based its decision on the first Tribunal decision and did not take into account information provided by the appellant at the second hearing. Moreover, there was no factual basis for complaint about the conduct of that hearing. The mere fact that the second Tribunal reached the same conclusion as the first did not give rise to any apprehension of bias, or establish that the Tribunal had failed to take into account relevant considerations or otherwise fell into jurisdictional error: see SZHDQ [2008] FMCA 231 at 19. 10 The second ground of review was unparticularised and was not clarified by the appellant. However, the Federal Magistrate could find nothing to suggest that there had been a failure to comply with ss 424A and 425 of the Act. Nor was there evidence of bias or want of logic on the part of the Tribunal. Addressing submissions made by the appellant at hearing, the Federal Magistrate found that the Tribunal's findings were open to it on the material and there were no grounds for alleging a want of evidence on which to base its decision. The Federal Magistrate dismissed the matter as no jurisdictional error had been demonstrated in the Tribunal's decision. THE PRESENT APPEAL 11 The Notice of Appeal filed in this Court in large part is a reproduction of the application filed in the Federal Magistrates Court (see [4]-[5] above). The appellant has not attended today and has not attempted to demonstrate any arguable error in the reasons of the Federal Magistrate. 12 I have looked at the reasons for decision and can not identify any error that would give rise to an appellable error reviewable by this Court. Moreover, as was submitted by the first respondent, the failure of the appellant to attend the appeal provides justification for an order under s 25(2)(B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) that the appeal to this Court be dismissed arising from the failure of the appellant to attend this appeal hearing. 13 Three practical steps were taken to ensure that the appellant had notice of this hearing. First, after the filing of his Notice of Appeal on 4 March 2008, a review of the Court file records that on 7 March 2008 a letter was forwarded to the appellant advising him of the proposed hearing period during which the appeal would be listed for hearing, together with directions that had been made for the preparation of that hearing. Secondly, on 16 April 2008 he was notified of the hearing time and date of his appeal. Both those documents are addressed to the last known address listed on the appellant's Notice of Appeal. Finally, at my request, the Court sought to contact the appellant on the telephone number listed on the Notice of Appeal. On doing so, a recorded message provided "the Vodafone telephone you are calling has incoming calls restricted". 14 For these reasons, the orders of the Court are: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal to be taxed in default of agreement. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 26 May 2008 The Appellant: No Appearance Counsel for the First Respondents: Mr R. Baird Solicitor for the First Respondents: Clayton Utz Date of Hearing: 26 May 2008 Date of Judgment: 26 May 2008