SZFLA v Minister for Immigration and Citizenship & Anor

Judgment (10 paragraphs)

[1]

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Driver of 22 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') of 19 November 2004.The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant a Protection visa to the appellant. 2 The appellant, a citizen of the People's Republic of China ('the PRC') claimed to have a well-founded fear of persecution because he is a Falun Gong practitioner in the PRC and promoted Falun Gong to his family and friends. The appellant claimed that the PRC authorities began to investigate him in March 2004. 3 The appellant arrived in Australia on 3 May 2004 and on 27 May 2004 he lodged an application for a Protection Visa (Class XA) with the now Department of Immigration and Citizenship ('the Department'). On 21 June 2004 the Minister refused to grant the Protection visa and on 26 July 2004 the appellant applied for a review of the decision.

[2]

tribunal proceedings 4 By letter dated 27 July 2004 the Tribunal wrote to the appellant informing him of the receipt of his Application for Review and explained the procedures which would follow. On 13 October 2004 the Tribunal wrote to the appellant advising him that the hearing would take place at Level 29, Pacific Power Building, 201 Elizabeth Street, Sydney, on Wednesday 24 November 2004 at 9.30 am. The letter invited him to attend the hearing and enclosed a Response to Hearing Invitation form. Such letter was forwarded to the address nominated by the appellant as his mailing address, namely 116/422 Pitt Street, Sydney NSW 2000, and also to the address the appellant nominated as his home address, namely 6/66 Eighth Avenue, Campsie NSW 2194. 5 On 17 November 2004 the Tribunal received the Response to Hearing Invitation in which the appellant indicated that he did not wish to attend the hearing. Accordingly, the Tribunal proceeded to hear the application on the evidence before it. By letter dated 22 November 2004 the appellant was advised that the Tribunal would hand down its decision on 9 December 2004. On that date the decision was published and a letter was forwarded to the appellant at his mailing address informing him that his application had been unsuccessful. 6 The Tribunal's decision was based upon the Department's file which included the Protection Visa Application and the delegate's decision record. It established that the appellant was a 51 year old man from the PRC. He claimed to be a member of Falun Gong and that since March 2004 the Chinese authorities allegedly commenced to investigate him and to search for evidence against him. He obtained his passport in 2002. 7 The Tribunal observed that the mere fact a person claimed a fear of persecution does not establish that it was genuine or that it was 'well-founded'. The Tribunal member noted that it was for the appellant to satisfy the Tribunal that the statutory requirements were satisfied and that the decision-maker was not required to make out a case for an applicant nor to accept uncritically the allegations made by an applicant. The Tribunal member continued: 'The Tribunal has a number of issues upon which it requires a good deal more detailed evidence before it could be satisfied that the Applicant is in genuine fear of persecution and that there is a real chance that he will be persecuted. On the very limited, formulaic and vague evidence available, the Tribunal cannot be satisfied about the Applicant's claim that he was a [sic] active member of Falun Gong and that as a consequence of his participation in Falun Gong he came to the adverse attention of the Chinese authorities and that he faces arrest on his return to China by reason of his association with Falun Gong.

submissions 11 The appellant appeared in person, assisted by an interpreter. The appellant had not provided any written submissions and was invited to make oral submissions in respect of each ground of appeal. 12 The appellant claimed that all of the decisions were unfair. With regard to the claim of bias, he said that he did not have any information and did not know how his case was decided. He claimed that he would be persecuted if he returned to the PRC because he practised Falun Gong. He claimed that he had been a member of Falun Gong for 'about a few years, maybe two or three years'. He said that he did not attend meetings in Australia but sometimes practised to improve his health. He could offer nothing further in relation to the grounds of appeal but added that 'I just hope that the Court can give me a fair judgment'. 13 When questioned in relation to his non attendance before the Tribunal, the appellant said that he had not received the invitation. When asked how he came to appeal to the Federal Magistrates Court, he answered that his migration agent had made the application. It was pointed out to the appellant that the Application for Review form did not disclose the name of any agent. In response he said that he was assisted by a student. It was then pointed out to the appellant that the Response to Hearing Invitation form had been returned indicating that the appellant did not wish to attend a hearing. The appellant had signed the form but stated that he was not aware of the nature of the form. The appellant acknowledged however that he agreed with the form being returned indicating that he did not wish to attend the hearing.

findings 14 In his first ground of appeal the appellant claimed that the Tribunal was biased because he could not attend the hearing before the Tribunal. The Court notes that such ground was not raised before Driver FM and accordingly ought not be raised for the first time on appeal: H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348. Further, the fact that the appellant returned the form indicating that he did not wish to attend the hearing renders the first ground of appeal spurious. A claim of bias raises a serious allegation in respect of which there must be specific matters relied upon (see: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43] - [48]; see also Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Epeabaka (2001) 206 CLR 128 per Kirby J at [90]; The Queen v The Commonwealth Conciliation and Arbitration Commission and Others; Ex Parte The Angliss Group (1969) 122 CLR 546 at 553 - 554; The Queen v Watson; Ex Parte Armstrong (1976) 136 CLR 248). In this instance, the statutory requirements of s 425A of the Act have been satisfied and pursuant to s 426A of the Act the Tribunal was entitled to proceed and make a decision without further action to allow or enable the appellant to appear before it (see: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]). 15 With regard to the allegation that the Tribunal failed to consider his application according to s 91R of the Act, no evidence has been provided and no details exist which satisfy the Court that the appellant was a Falun Gong practitioner, nor that the appellant would suffer persecution if he returned to the PCR because of his alleged membership of Falun Gong. The statement from the Bar table provided today does not satisfy the Court that the appellant is a genuine Falun Gong practitioner, and on the information available before the Tribunal (and Driver FM) it was entitled to find that there was insufficient evidence to support the appellant's claims; see Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 at 355 per Mason CJ. 16 The assertion that the Tribunal 'failed to properly understand my claims' is insufficient to establish a ground of appeal. The Tribunal member made the decision to dismiss the application upon the only evidence before her. That evidence did not suggest that the appellant was suffering or would suffer any persecution. 17 As to the third ground of appeal, namely that the Tribunal's satisfaction that the appellant was not a refugee, was not based on reasoning 'which provided a ration [sic] or logical foundation for this belief', no particulars have been provided. Nor has any evidence or particulars been provided of the fourth ground of appeal, namely that Driver FM failed to consider the appellant's application thoroughly. A reading of the judgment of Driver FM reveals that he carefully considered the appellant's application and the Tribunal decision before he reached his conclusion that there was no jurisdictional error. 18 Accordingly the Court dismisses each ground of appeal and finds no jurisdictional error in the decision of Driver FM or of the Tribunal. 19 The first respondent has sought an order that the appellant pay the costs of the first respondent in the amount of $3400. As this is within a reasonable range for costs I will make the order sought. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

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Judgment (10 paragraphs)

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