SZHET v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2006-08-08|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellant appeals the decision of Smith FM delivered on 11 April 2006. Smith FM found that there was no jurisdictional error in the decision of the Refugee Review Tribunal handed down on 23 August 2005 which refused the appellant's claim for a protection visa.

BACKGROUND 2 The appellant was born on 16 March 1963 in Fujian Province in China. He arrived in Australia on 1 February 2005 and on 10 March 2005 made application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) ('the Migration Act'). The application was refused by a delegate of the first respondent on 1 April 2005. On 2 May 2005 the appellant applied to the Tribunal for a review of the decision. 3 On 7 July 2005 the Tribunal wrote to the appellant advising him that it had considered all of the material relating to his application but was unable to make a favourable decision on that material alone. It invited the appellant to give oral evidence at a hearing on 2 August 2005. A letter was sent to the appellant at the address for service indicated in his application for review, namely 6/460 Pitt Street, Sydney. No response was received, although the letter was not returned unclaimed. The appellant did not appear before the Tribunal on 2 August 2005 and pursuant to s 426A of the Migration Act the Tribunal made its decision in the appellant's absence. 4 The Tribunal noted the appellant's claim that he was a Falun Gong practitioner and had joined Falun Gong approximately eight years ago. Because the practice of Falun Gong is outlawed in China the appellant claimed that he conducted the practice of his religion in secret, in other friends' houses or in the countryside. He claimed that the police came to his home one evening and arrested him but said that he was able to escape with a friend's help. 5 The Tribunal was not satisfied of the truth of the appellant's claim that he was a Falun Gong practitioner. It noted that such claim was entirely unsubstantiated, and was contained only in a brief statement attached to his primary application which was both vague and generalised. No mention was made of any of the philosophical or moral aspects of the Falun Gong faith nor its beliefs. No details were provided concerning the date when he was introduced to the faith except that it was eight years ago. 6 Additionally, the Tribunal noted that there was nothing in the appellant's claims to suggest he had practised Falun Gong since his arrival in Australia. It considered that the appellant's claims that he suffered harm in China were equally vague, brief and unsubstantiated. 7 The Tribunal noted that it would have explored these issues with the appellant at the hearing but because of his non-attendance it had no opportunity to do so. However, in the absence of further evidence from the appellant, it was not satisfied that there was any real chance the appellant would suffer persecution if he were to return to China.

APPEAL TO FEDERAL MAGISTRATE 8 On 23 September 2005 the appellant filed an application for review of the Tribunal's decision in the Federal Magistrates Court. The grounds of the application as set out in the amended application filed on 23 February 2006 alleged that the Tribunal 'failed to give natural justice' to the appellant and 'made the finding which is biased'. The particulars stated: '(a) The only information before the Tribunal was that contained in the First Respondent's file and that given to the Tribunal by the applicant.

(b) The tribunal based it's [sic] findings on the information, or lack of information, contained in the Applicant's [sic] for a visa.

9 The appellant confirmed to Smith FM that he received the invitation to attend the hearing before the Tribunal but claimed that because he did not understand it he did not attend. Smith FM concluded that the Tribunal had power to proceed to determine the appellant's application under s 426A(1) of the Migration Act, since the Tribunal had complied with the requirements of ss 425A and 441A(4). His Honour noted that the letter was deemed to have been received pursuant to s 441C(4) of the Migration Act and whether the appellant had actual notice of the hearing was immaterial, and referred to VNAA and Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [16] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12]. 10 Smith FM found that it was open to the Tribunal to make an assessment of the appellant's credibility based upon the vagueness of the appellant's claims and the fact that his claims were unsubstantiated. His Honour was unable to identify any jurisdictional error arising from the Tribunal's procedures or reasons, and accordingly found that the Tribunal's decision was not affected by jurisdictional error.

APPEAL TO THIS COURT 11 On 1 May 2006 the appellant appealed to this Court. The grounds of appeal are stated as follows: '1. The Tribunal based it's [sic] findings on the information, or lack of information, contained in the Applicant's [sic] for a visa.

The Tribunal not satisfied that I am a Falun Gong practitioner, but the fact is that I am a genuine practitioner.

12 At the hearing today, the appellant was unable to provide any information in support of his case. In response to questions, he gave answers which were inconsistent with his previous statements to the Department and the Tribunal, although these answers were not strictly relevant to the appeal before me. 13 The Tribunal was clearly entitled, under s 426A of the Migration Act, to proceed to decide the appellant's case in his absence. It had complied with the notification requirements specified in ss 425 and 441A of the Migration Act, which was sufficient to discharge its obligations under the Migration Act: see Minister for Immigration and Multicultural and Indigenous Affairs and Anor v SZFHC (2006) 150 FCR 439 at [39]. 14 I agree with Smith FM that the findings of the Tribunal were open to it on the evidence which was before it. Accordingly, there is no jurisdictional error in the decision of the Tribunal, and Smith FM was correct to dismiss the appeal. This appeal should be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Counsel for the Appellant: The appellant appeared in person.

Counsel for the Respondent: E Palmer (solicitor)

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