SZHYZ v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate handed down on 20 April 2006, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 6 December 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse grant of a protection visa to the appellant. The appellant is a citizen of the People's Republic of China. Before the Tribunal, the appellant claimed to have a well-founded fear of persecution because of his religious beliefs. 2 The appellant claimed to be a practising Catholic and a member of an underground Christian church. His claims included attendance at church illegally and that he and his spouse had been questioned and beaten by the authorities. On 5 October 2005 the Tribunal wrote to the appellant inviting him to a hearing and the appellant replied on 10 October 2005 indicating that he would like to attend the hearing. The appellant did not attend the hearing before the Tribunal and the Tribunal proceeded to determine the application in the absence of the appellant. 3 On the basis of the evidence before it, the Tribunal found that the appellant's claims were lacking in detail and that it was unable to be satisfied that the appellant had a well-founded fear of persecution for a convention reason. The Tribunal affirmed the delegate's decision not to grant a protection visa. On 23 December 2005 the appellant filed an application in the Federal Magistrates Court of Australia seeking judicial review of the Tribunal's decision. On 11 April 2006 an amended application was filed in which the appellant claimed that the Tribunal failed to carry out its statutory duty, breaching s 424A of the Migration Act 1958 (Cth) ('the Act'). 4 In oral submissions before the Federal Magistrate, the appellant reiterated his written ground of review and made two other claims. That the Tribunal did not understand the real situation in relation to religious freedom in China and that it did not believe that he was a Catholic and a Christian. And that the Tribunal Member had shown bias towards the appellant in a way which breached s 424A of the Act. The appellant also explained to the Federal Magistrate that he did not attend the Tribunal hearing as he feared the presence of too many spies. 5 The Federal Magistrate considered each claim made by the appellant. His Honour found that the Tribunal did refer to country information in its decision but noted that this was not of itself a breach of s 424A of the Act. The Tribunal decision was based on a lack of satisfaction that the appellant had made out his case, due to the inadequacy of information and that the information was just general information. 6 His Honour replied the decision in SZDXC v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1306 where Hely J in this court held that when an appellant has been notified that the Tribunal is unable to make a decision in an appellant's favour and fails to accept the opportunity to elaborate on the information at the scheduled hearing, the inevitable consequence was the rejection of the appellant's application. 7 The Federal Magistrate found that the grounds relating to the situation in China and the Tribunal's disbelief of the appellant's religious membership were clearly factual matters for the Tribunal which were unreviewable by the court. The Federal Magistrate turned to the question of bias and found no evidence of such bias. His Honour noted that an allegation of bias had a heavy onus and must be clearly proved. A breach of s 424A of the Act, even if proved, would not of itself satisfy the court of bias on the part of the Tribunal. 8 His Honour, however, found no breach of s 424A of the Act. The Federal Magistrate discerned no jurisdictional error and dismissed the application. On 9 May 2006 the appellant lodged a notice of appeal in this court which raised the following grounds: That there was jurisdictional error by the Tribunal due to its non-compliance with s 424A(1) of the Act; that the Tribunal was biased and that the Federal Magistrate did not fully consider the appellant's application. 9 At the hearing before me this morning, the appellant appeared in person. He had the assistance of an interpreter. Despite my invitation to him to elaborate on and explain his grounds of appeal, he did no more than restate them. Some of the grounds were substantially the same as those raised and dealt with before the Federal Magistrate. I have read his Honour's reasons carefully and agree with his reasons for rejecting these grounds. 10 The further complaint is raised that the Federal Magistrate did not fully consider the appellant's application. This ground is untenable. The learned magistrate carefully considered and ruled on each of the grounds relied on by the appellant when he sought judicial review in the Federal Magistrates Court. 11 The decision of the Federal Magistrate was plainly correct for the reasons which he gave. No error has been demonstrated. The application will be dismissed with costs. Those costs will be fixed at $3,200. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.