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[2007] FCA 149
Federal Court of Australia
2007-02-20
Kenny J
Original judgment source is linked above.
Background 1 The appellant is a citizen of the People's Republic of China. She arrived in Australian on 26 October 2004. In November 2004, she lodged an application for a protection visa with the first respondent's Department. The appellant claimed to fear persecution in China by reason of her membership of Falun Gong. 2 On 12 January 2005, a delegate of the first respondent refused to grant a protection visa to the appellant. On 11 February 2005, the appellant applied to the Refugee Review Tribunal for review of the delegate's decision. 3 On 9 March 2005, the Tribunal wrote to the appellant inviting her to give oral evidence at a hearing to be held on 22 April 2005. The appellant did not attend the hearing, and the Tribunal proceeded to make a decision, in accordance with s 426A of the Migration Act 1958 (Cth), in this case affirming the delegate's decision. 4 On 15 June 2005, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the decision of the Tribunal. A Federal Magistrate heard the matter on 1 November 2006 and dismissed the application. The appellant appeals from this decision.
Tribunal decision 5 The Tribunal found that: (a) the appellant's claims were vague, general and lacking detail; (b) the appellant provided no corroborative evidence to support her claims; and (c) the appellant had been given an opportunity to support her application and had been put on notice that, on the basis of the available information, the Tribunal was unable to make a favourable decision, but she did not attend the hearing and did not explain her non-attendance. The Tribunal held that, without further details and corroborative evidence, and without the opportunity to explore her claims at a hearing, it was not satisfied that the appellant was a Falun Gong practitioner or that she had been arrested, detained or ill treated as a result. The Tribunal was not satisfied that the appellant had borrowed money from friends and that she obtained a passport through bribery, or that she would be severely punished if she were to return to China. On the basis of the available evidence, the Tribunal was not satisfied that the appellant had suffered any Convention related harm or that there was a real chance of such harm occurring to the appellant in the reasonably foreseeable future.
FEDERAL MAGISTRATE'S DECISION 6 The Federal Magistrate considered the grounds identified in the appellant's amended application and noted that it did not identify any grounds of jurisdictional error. His Honour found that the Tribunal was clearly authorised to proceed in the manner which it did under s 426A, and that its decision was not affected by jurisdictional error.
Consideration 7 The appellant appeals to this Court on the following grounds: "(a) There is no evidence of the other material to justify the making of the decision; (b) the Refugee Review Tribunal [did] not full consider the danger I would face if I return to China; and (c) I believe that my fear of persecution is well-founded." 8 The notice of appeal does not identify any error in the decision of the Federal Magistrate, although its assertion that there was no evidence to justify the Tribunal's decision may imply that there was error in the decision of the Federal Magistrate because he did not discern this. I would reject this claim, however. The Tribunal's decision was adverse to the appellant because, on the information it had, it could not be satisfied that she was a person to whom Australia owed protection obligations under the Convention. Since the circumstances in s 426A(1)(a) and (b) had been made out, the Tribunal was entitled to proceed to decide her application as it did. It was plainly open to the Tribunal to conclude that it was not satisfied that the appellant had established an entitlement to a protection visa: see Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17]. 9 On being questioned by me today, the appellant stated that she did not attend the Tribunal hearing because she was sick at the time. She had not, however, told this to the Tribunal. There was thus no occasion for the Tribunal to consider the matter. Further, she did not tell the Federal Magistrate (or provide any form of evidence) that this was why she had not attended the Tribunal hearing and thus, if it were relevant, his Honour did not have occasion to consider the matter either. The appellant was unable to explain why she had not informed the Tribunal or the Federal Magistrate of the matter. No error can be imputed to the Tribunal for failing to consider what it did not know. Further, no error can be imputed to the Federal Magistrate in this connection. 10 To the extent the second and third grounds of review seek to review the merits of the Tribunal's finding, they must fail because it is not open to this Court to consider the merits of the appellant's visa application. To the extent that the second ground may assert some form of jurisdictional error, for the reasons already given in relation to the first ground, it is not made out. 11 The appellant asked me to reach the best conclusion I could for her. I am, however, bound to apply the law and that requires me to dismiss this appeal. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.
Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter.
Solicitor for the First Respondent: Ms G. Broderick of Clayton Utz
Date of Hearing: 20 February 2007
Date of Judgment: 20 February 2007
SZGNI
Minister for Immigration and Citizenship