SZMJK v Minister for Immigration and Citizenship

Federal Court of Australia|2009-02-09|Before: Collier J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Raphael FM of 27 October 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 8 May 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant. 2 This afternoon there was no appearance by the appellant. I asked the Court Officer to call the matter outside Court but there was no response from the appellant. 3 I adjourned the hearing during which time my associate with the assistance of the interpreter Ms Wang rang the appellant at the contact telephone number in the Court file. My associate informed me that the telephone was answered by voicemail and that she was unable to speak personally with the appellant. 4 Clearly it is unfortunate that the appellant was not in Court this afternoon for the hearing. However, notwithstanding the failure of the appellant to appear, in view of the nature of this case I consider that I am in a position to deliver judgment on the material before me.

BACKGROUND 5 The appellant is a citizen of the People's Republic of China who arrived in Australia on 21 August 2007. The appellant subsequently lodged an application for a protection visa with the Department of Immigration and Citizenship and a delegate of the first respondent refused the application on 6 February 2008. On 15 February 2008 the appellant applied to the Tribunal for a review of that decision. 6 Before the Tribunal, the appellant claimed to fear persecution in China due to his political opinion. The appellant had allegedly become aware that the managers of his factory were illegitimately deducting money from his salary and that of other employees. He stated that he complained to factory owners and joined with other staff in reporting this to the government. The appellant claimed that he was identified as an "active participant" in these dissident activities, and that he was detained for 9 days in 2006 and subsequently despatched to perform labour reform for one year.

THE TRIBUNAL DECISION 7 The appellant was invited to a hearing before the Tribunal scheduled for 8 April 2008. The invitation was by letter dated 4 March 2008. The letter was not returned, and the appellant failed to attend the hearing on the specified date and did not provide the Tribunal with any other means of contact. 8 In the absence of the appellant the Tribunal proceeded to make a decision pursuant to s 426A Migration Act 1958 ("the Act"). 9 The Tribunal found that it was unable to find favourably for the appellant. It noted that on the material before his claims were "untested" and "stated in the most general terms" and that it had not had an opportunity to explore his assertions of fact. The appellant had not provided the Tribunal with the necessary detail for it to be satisfied of the veracity of his claims. Accordingly, the Tribunal was not satisfied that the appellant held a well-founded fear of Convention-related persecution in China.

DECISION OF THE FEDERAL MAGISTRATE 10 The appellant appeared before the Federal Magistrate in person, and claimed that he had been denied an additional opportunity to attend a hearing, and that the Tribunal had breached s 424A of the Act. Further, the appellant claimed that his inability to locate the Tribunal's address had vitiated his opportunity to attend a hearing. 11 The Federal Magistrate was satisfied that the Tribunal's invitation had complied with s 441A of the Act. His Honour found that the Tribunal was entitled to proceed to decide the application without taking any further action to enable the applicant to appear before it when he failed to appear on the appointed date: Minister for Immigration v SZHFC [2006] FCAFC 73 at [39]. Insofar as the appellant asserted a breach of s 424A, his Honour noted that the Tribunal relied on the lack of detail provided by the appellant in reaching its decision. There was no obligation for it to put any evidentiary concerns to the appellant under this section.

GROUNDS OF APPEAL 12 The notice of appeal contains two unparticularised grounds, namely: 1. Refugee Review Tribunal had bias against me and did not make fair decision for my application. 2. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. 13 In relation to the first ground of appeal, I note (as submitted by the Minister) that the issue of bias of the Tribunal was not raised before the learned Federal Magistrate. However in any event I do not consider that this ground can be substantiated. Simply because the Tribunal did not accept the claims of the appellant or find in his favour does not mean that the Tribunal was in any way biased against him. As observed in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]-[48] bias is a significant allegation which cannot merely be raised without particulars and evidence to substantiate it. In this case there are no particulars, and no substantiating evidence. 14 In relation to the second ground of appeal, I do not accept that the appellant's case was not considered reasonably by the Federal Magistrate below. His Honour examined the history of the appellant's case, his claim before the Tribunal and the Tribunal's decision, the grounds of review before the Court below, and relevant authorities. I am unable to identify any basis for this ground of appeal. 15 In my opinion, the appeal should be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate: Dated: 9 February 2009 Counsel for the Appellant: The Appellant did not appear

Solicitor for the Respondents: Mr G Johnson of DLA Phillips Fox

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