FEDERAL COURT OF AUSTRALIA SZNEW v Minister for Immigration & Citizenship [2009] FCA 944 SZNEW v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 378 of 2009 SPENDER J 5 AUGUST 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 378 of 2009 GENERAL DIVISION BETWEEN: SZNEW Applicant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: SPENDER J DATE OF ORDER: 5 AUGUST 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for leave be dismissed. 2. The applicant pay the costs of the first respondent of and incidental to the application for leave to appeal, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 378 of 2009 GENERAL DIVISION BETWEEN: SZNEW Applicant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: SPENDER J DATE: 5 AUGUST 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 As is common in these cases, the applicant for leave clearly does not understand the limited powers that the Federal Court of Australia has in relation to decisions made by the delegate of the Department and affirmed by the Refugee Review Tribunal (the Tribunal). This is reflected most poignantly in the statement made by the applicant for leave at the conclusion of her oral submissions today. When I asked her why I should grant leave to appeal, the applicant said, "My fear to go home because I will be jailed because the police are still making inquiries about me." 2 What has to be demonstrated is that the decision of the Federal Magistrate is affected by appellable error. A claim based on the genuineness and the merits of the applicant's claim does not establish such error. 3 The applicant seeks leave to appeal from a decision of the Federal Magistrates Court given by Smith FM on 16 April 2009. That decision dimissed an application for judicial review of a decision of the Tribunal, which affirmed the decision of a delegate of the first respondent refusing to grant a protection visa to the applicant. 4 The decision of the Federal Magistrate was made at a show cause hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001. His Honour dismissed the applicant's application pursuant to rule 44.12(1)(a). 5 Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) requires the applicant seek the leave of the Court to appeal that decision, the decision being interlocutory. 6 The background to this application for leave is as follows. The applicant is a female citizen of China, born on 11 February 1978. She is married to a Taiwanese national who was present in Australia at the time of her visa application. The applicant arrived in Australia on 18 June 2008. She applied for a Protection (Class XA) visa on 15 July 2008. She claimed that she had a well-founded fear of persecution. She said she had been practicing Falun Gong in China "over the past five years." She had heard from a friend, with whom she had practiced Falun Gong, that the police had noticed her because of her Falun Gong activities. Another practitioner had been arrested in August 2007. 7 The applicant claimed to have been very scared upon knowing that the police had asked about her, and she feared that she could be arrested and put in jail, and even tortured. No supporting evidence for these claims was provided, and the applicant provided no explanation to reconcile her claims for refugee status with the employment history set out in the visa application, which suggested that she had been self-employed in Taiwan between 2006 and 2008. 8 On 11 August 2008, an officer of the Department of Immigration and Citizenship (the Department) invited the applicant to attend an interview on 10 September 2008. A letter was sent from an officer of the Department to the residential address that the applicant had provided to the Department on 7 August 2008. The applicant did not respond to the letter, nor did she attend the interview. 9 On 11 September 2008, an officer of the Department invited the applicant to attend an interview on 22 September 2008. It sent that letter to the address provided by the applicant in her protection visa application, being an address to which previous correspondence had successfully been sent. Once more, the applicant did not respond or attend. 10 On 22 September 2008, the delegate refused to grant the applicant a Protection (Class XA) visa. The delegate notified the applicant of that decision by letter dated 23 September 2008, which was sent to both known addresses. The applicant then applied to the Tribunal for review of the decision. That application was made on 9 October 2008. 11 On 27 October 2008, the Tribunal sent a letter by registered post to the applicant's residential address, the address that was provided in her application for review to the Tribunal. That letter invited her to attend a hearing before the Tribunal on 27 November 2008. The applicant did not respond to the invitation, make any contact with the Tribunal, or attend the hearing. 12 On 23 December 2008, the Tribunal affirmed the decision of the delegate to refuse to grant a protection visa. That decision was notified to the applicant by letter dated 23 December 2008. In making its decision, the Tribunal had regard to the contents of the applicant's protection visa, and to independent country information about Falun Gong from a variety of sources. 13 The Tribunal accepted the applicant was a national of China, but the Tribunal in its decision said that the applicant had only provided a brief outline of her claims in her protection visa application. She gave no details about how and why she commenced Falun Gong and few details about the nature and extent of her practice. She provided no details of how and when she came to the adverse attention of the Chinese authorities, how this impacted on her, and when the events occurred in relation to her claimed self-employment in Taiwan. Because of the lack of detail in the claims and the lack of opportunity to explore those claims, the Tribunal said that it did not accept that the applicant was a practitioner of Falun Gong, and, as a consequence, was a person of interest to Chinese authorities. 14 The Tribunal concluded that the applicant did not have a well-founded fear of persecution and was, therefore, not a refugee. That decision is a privative clause decision, pursuant to s 474(2) of the Migration Act 1958 (Cth), and s 474 operates to prevent judicial review of those decisions, except those vitiated by jurisdictional error. 15 The applicant appealed to the Federal Magistrates Court on 28 January 2009. The applicant alleged that the Tribunal did not provide her with an opportunity to substantiate her claims and failed to consider her claims properly. This allegation is made notwithstanding the letters that were sent to her and her failure to respond to those letters to contact the Tribunal, or to attend the Tribunal hearing. 16 In the Federal Magistrates Court, the applicant did not file an amended application giving particulars of her claims, despite leave having been granted at a directions hearing on 17 February 2009 for her so to do. At the hearing in the Federal Magistrates Court, Smith FM, in an ex tempore judgment, dismissed the application pursuant to rule 44.12(1)(a), on the basis that he was not satisfied that the applicant had raised an arguable case for the relief claimed. His Honour was satisfied that the Tribunal had afforded the applicant an opportunity to attend and was entitled to proceed in her absence. His Honour considered the explanations given by the applicant for her non-attendance, but Smith FM was not satisfied that these raised an arguable case upon which a challenge to the Tribunal's decision to proceed could be based. Smith FM was satisfied that the Tribunal was clearly aware of the contents of the applicant's protection visa application. His Honour was not satisfied that it could be reasonably argued by the applicant that the Tribunal did not genuinely consider them and assess them in a manner that was open to it in law. 17 The draft Notice of Appeal attached to this application for leave to appeal raises three grounds. The first is: 1. Refugee Review Tribunal had bias against me and did not make fair decision for my application. 18 This ground is un-particularised, is a serious allegation to make, and there is nothing in the material to provide any basis for the view that that ground is arguable. 19 The second ground is: 2. I lodged application to the Federal Magistrate Court, but the Judge dismissed my application on 16th April 2009. It is not fair. I fear to go back to China, as I will be put into jail. 20 This ground does not raise any jurisdictional error but is a comment concerning the merits of the decision: merits review is not available in either the Federal Magistrates Court or in this Court. 21 The third ground is: 3. I believe that my application was not considered reasonable by the judge at the Federal Magistrates Court. RRT failed to consider my risk to return to China. 22 In respect of this claim, there is nothing to suggest that Smith FM did not consider the grounds that were argued before him, or that the Tribunal did not consider whether there was a well-founded risk of persecution should the applicant return to China. 23 Leave to appeal from Smith FM's decision is only to be granted if his decision is attended by sufficient doubt as to warrant it being reconsidered by the Full Court of the Federal Court, or if substantial injustice would be done if the decision were allowed to stand. 24 Where the applicant had not provided oral evidence to the Tribunal or attended a meeting at its invitation, it is not surprising that the Tribunal reached the view that there was insufficient evidence to be satisfied as to the veracity of the applicant's claims. 25 The legislative regime requires a positive state of satisfaction as to whether Australia owes protection obligations to a person who applies for a protection visa. In circumstances where the applicant failed to respond to an invitation to put more material before the Tribunal, and failed to attend the hearing, the decision of the Tribunal in this case as to its lack of satisfaction of the veracity of the applicant's claims is not tainted by jurisdictional error. 26 There was no evidence that the applicant ever requested an adjournment of the Tribunal hearing date, or that she ever provided a medical certificate or any other document to the Tribunal indicating that she was too sick to attend a hearing. 27 The applicant told Smith FM that she did not provide any such evidence to the Tribunal. There is nothing in his Honour's reasons to warrant reconsideration of his Honour's decision by a Full Court, and given the position that the applicant's appeal would fail should leave be granted, there is no substantial injustice resulting from this Court declining to grant leave. 28 In my judgment, there is no jurisdictional error in the decision of the Tribunal and no appellable error in the Federal Magistrate's decision. 29 For these reasons, the application for leave to appeal is refused. 30 The usual order in the light of the reasons that I have given is that the applicant for leave pay the costs of the first respondent, to be taxed if not agreed. There is no reason why I should not make the usual order. 31 The orders of the Court are: (1) The application for leave is dismissed; (2) The applicant is to pay the costs of the first respondent of and incidental to the application for leave to appeal, to be taxed if not agreed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 24 August 2009 Applicant appeared in person. Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 5 August 2009 Date of Judgment: 5 August 2009