FEDERAL COURT OF AUSTRALIA SZOTJ v Minister for Immigration and Citizenship [2011] FCA 878 Citation: SZOTJ v Minister for Immigration and Citizenship [2011] FCA 878 Appeal from: SZOTJ v Minister for Immigration [2011] FMCA 292 Parties: SZOTJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 522 of 2011 Judge: SIOPIS J Date of judgment: 1 August 2011 Date of hearing: 1 August 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 12 The Appellant did not appear. Counsel for the First Respondent: Mr J Pinder Solicitor for the First Respondent: DLA Piper Australia IN THE FEDERAL COURT OF AUSTRALIA new south wales DISTRICT REGISTRY GENERAL DIVISION NSD 522 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOTJ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: SIOPIS J DATE OF ORDER: 1 AUGUST 2011 WHERE MADE: sydney THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to pay the first respondent's costs to be agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA new south wales DISTRICT REGISTRY GENERAL DIVISION NSD 522 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOTJ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: SIOPIS J DATE: 1 AUGUST 2011 PLACE: sydney REASONS FOR JUDGMENT 1 This is an appeal from the decision of the Federal Magistrate dismissing the appellant's application for judicial review of the decision of the Refugee Review Tribunal. 2 This matter was listed to be heard at not before 10:15 am today. At 10:51 am, I asked the court officer to call this matter outside the Court. There was no response to the call. The appellant has not appeared. In these circumstances, the power of the Court under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and r 36.75 of the Federal Court Rules 2011, to dismiss an appeal on the basis of a non-appearance of the appellant at the hearing of the appeal, is invoked. I exercise those powers and dismiss the appeal on those grounds. 3 However, I also dismiss the appeal on its merits for the following reasons. 4 The grounds of appeal comprise a repetition of the grounds for review. These are that the decision of the Tribunal is affected by jurisdictional error, that the Tribunal applied the wrong test, and that it acted in breach of the rules of procedural fairness and justice. I will treat the grounds of appeal as a contention that the Federal Magistrate erred in failing to make the respective findings. 5 Ground one is a generalised constructive complaint that the Federal Magistrate erred in failing to find jurisdictional error. Before the Federal Magistrate the appellant did not identify any specific circumstance said to comprise jurisdictional error. The Federal Magistrate had regard to the decision record of the Tribunal and went on to find that the material before the Court did not disclose that the Tribunal had fallen into jurisdictional error. In my view, the Federal Magistrate did not err in failing to find jurisdictional error. The Tribunal rejected the appellant's claim to fear persecution because he was a Falun Gong practitioner, on credibility grounds. It was open to the Tribunal to do so. 6 The constructive complaint in the second ground of appeal is that the Federal Magistrate erred in failing to find that the Tribunal did not apply the correct test. The Tribunal correctly set out the legal test to apply in relation to determining whether a person would qualify for a protection visa. The Tribunal also set out in detail the claims made by the appellant to be a Falun Gong practitioner and to fear persecution on that basis. However, the Tribunal, for credibility reasons, did not accept that the appellant was, in fact, a genuine or committed Falun Gong practitioner. Further, the Tribunal accepted the evidence of the appellant that he had practised Falun Gong after he had arrived in Australia. However, the Tribunal applied s 91R(3) of the Migration Act 1958 (Cth) to that finding on the basis that it was of the view that he was engaging in that conduct for the purpose of enhancing his claim for a protection visa and not because of a genuine interest in Falun Gong. 7 Accordingly, albeit that the Tribunal was aware of the proper test to apply in determining whether the appellant satisfied the criteria for a protection visa, it was not necessary for the Tribunal to apply that test in this case. This was because of the Tribunal's factual finding that the appellant was not a genuine or committed Falun Gong practitioner. As mentioned, it was entirely open to the Tribunal to make the factual findings that it made. 8 The Federal Magistrate did not err in rejecting this ground of review. 9 The third ground of appeal constructively contended that the Federal Magistrate erred in failing to find that the Tribunal had not accorded the appellant natural justice. 10 The Federal Magistrate found that, in the circumstances, the obligation imposed on the Tribunal to give written notice of its potential findings under s 424A(1) of the Migration Act was not invoked, because the Tribunal's decision was based on an assessment of the applicant's oral evidence and independent country information. The Federal Magistrate did not err in coming to this conclusion. 11 The Federal Magistrate also held that the Tribunal had complied with s 425 of the Migration Act in that, during the course of the hearing, the Tribunal had advised the appellant of the matters in respect of which it had concerns; and also that it had difficulties in accepting that his evidence was credible. In my view, the Federal Magistrate did not err in making that finding. 12 Accordingly, I dismiss the appeal. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 4 August 2011