SZFEL v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT WILCOX J: 1 This is an appeal against a decision of Federal Magistrate Scarlett given on 21 June 2005. The Chief Justice has directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal be heard and determined by a single judge of the Court. 2 Federal Magistrate Scarlett dismissed an application to review a decision of the Refugee Review Tribunal ('the Tribunal') made on 15 October 2004. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the present respondent. The delegate had refused to grant to the appellant a protection visa. 3 The appellant is a national of the Peoples Republic of China. He claimed to have a well-founded fear of persecution, if he was returned to China, on the basis that he was a Falun Gong practitioner. 4 The appellant made this claim in a written statement which was contained in the file of the Department of Immigration and Multicultural and Indigenous Affairs ('the Department'). The file was forwarded to the Tribunal. On 16 September 2004, the Tribunal wrote to the appellant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 15 October 2004 and warned him that, if he did not attend the hearing, the Tribunal may make a decision on his case without further notice. The appellant did not respond to the letter. He did not attend the hearing. The predictable result was that the Tribunal found itself unable to conclude that the appellant's case had been made out. This was why the Tribunal affirmed the delegate's decision. 5 From a reading of the Tribunal's reasons for decision, it does not appear that the Tribunal relied on any information that had not been supplied by the appellant. The claim failed because the Tribunal found the appellant's claims to be vague, lacking detail and mere assertions. The Tribunal identified a number of questions which it thought fairly arose, but had been left unanswered because the appellant had failed to attend the hearing. 6 At the hearing before the Magistrate, the appellant relied on two grounds. Neither ground asserted jurisdictional error by the Tribunal. The Magistrate held the appellant had not demonstrated jurisdictional error. 7 When the matter was called on today, the appellant represented himself, assisted by an interpreter. I asked him to identify the jurisdictional error that he claimed the Tribunal had committed. I explained to him the meaning of this term and, in particular, that the Court had no power to review the Tribunal's findings of fact. 8 The appellant was unable to identify an arguable jurisdictional error. He simply said that he suffered the risk of persecution if he was returned to China. Ms Crawley, solicitor for the Minister, drew to my attention a decision given yesterday by Hely J, SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 ('SZDXC'). This case deals with the possible application of s 424A of the Migration Act 1958 (Cth) ('the Act') in a case where an applicant failed to attend the Tribunal's oral hearing. Hely J distinguished that situation from situations, which have arisen in other cases, in which courts have held the Tribunal failed to comply with the requirements of s 424A(3) of the Act. I agree with Ms Crawley that this case is similar to SZDXC. I respectfully adopt the approach of Hely J. I do not think that s 424A creates any point available to the present appellant. 9 As the appellant is unrepresented, I have myself carefully considered the Tribunal's reasoning. It does not disclose any jurisdictional error. The Magistrate was correct to dismiss the application for review. The appeal fails. The order of the Court will be that the appeal be dismissed with costs. 10 I order the appeal be dismissed with costs, fixed at $1,950.