BZAAC v Minister for Immigration
[2010] FMCA 855
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAAC v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 855 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – Tribunal not able to make decision favourable to applicant on the material presented – applicant not attending hearing before Tribunal– no reviewable error found – application dismissed. |
| Migration Act 1958, s.426A |
| Applicant: | BZAAC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 531 of 2010 |
| Judgment of: | Jarrett FM |
| Hearing date: | 30 August 2010 |
| Date of Last Submission: | 30 August 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 30 August 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application filed 31 May, 2010 is dismissed.
That the applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of five thousand eight hundred and sixty-five dollars ($5,865).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 531 of 2010
| BZAAC |
Applicant
And
| MINISTER OF IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of a Refugee Review Tribunal that affirmed a decision of a delegate of the Minister not to grant to the applicant a protection visa. The Tribunal’s decision was made on 28 April, 2010.
To succeed the applicant needs to demonstrate that the Tribunal’s decision was affected by jurisdictional error. However, I am not satisfied that any jurisdictional error is demonstrated by the Tribunal’s reasons as the applicant contends.
The Tribunal found that:
a)the applicant was a citizen of China;
b)she was outside her country of nationality;
c)she presented no evidence to suggest that she had a legally enforceable right to enter and reside in any country other than China;
d)she arrived in Australia on 2 May, 2009 having been granted a (Class TU) Subclass 570 Independent ELICOS student visa on 9 April, 2009;
e)on 18 November, 2009 she applied for a Protection (Class XA) visa;
f)she was granted a bridging visa in conjunction with her application for a protection visa; and
g)on 11 February, 2010 a delegate of the Minister decided to refuse to grant the visa to the applicant. She was notified of the decision on the same day.
When the applicant made her application for a protection visa, she included a statement of her claims in her application.
Her claims to protection centred upon her Christianity. She claimed that she was a Christian, and that the Chinese Government is intolerant of Christians. She said she became interested in becoming a Christian about five years before she lodged her protection visa application and, since that time (and before coming to Australia), she has kept company with other Christians in China. She claimed that they usually gathered late at night or early in the morning at private or secret places. She claimed that Christians were put into detention or prison. On one occasion, she says, many policemen came to arrest the gathering: “Many of us were put into cars and sent to prison later.” The applicant says that she escaped with her friend’s help; she knows the local government leaders and the police leader in her area. She was not put into gaol, but told not to do it anymore.
The Tribunal invited the applicant to attend a hearing at the Tribunal on 27 April, 2010. The Tribunal wanted a hearing because it was not it could make a decision favourable to the applicant on the basis of the information provided by the applicant to that point in time.
The invitation to the hearing, which is in the bundle of relevant documents, was sent to the address notified by the applicant in her application for review to the Tribunal. The address for correspondence was different to her residential address in Australia. The applicant did not accept the Tribunal’s invitation to attend an oral hearing and according to the Tribunal’s reasons, she did not contact the Tribunal. The Tribunal, therefore, decided to proceed, as it was entitled to do, pursuant to s.426A of the Migration Act 1958.
The Tribunal assessed the claims made by the applicant but, on the basis of the information given to the Tribunal by her, including the claims made in her application for the visa, the Tribunal was not satisfied that the applicant was a person to whom Australia owed any protection obligations. The Tribunal did not accept that if the applicant returned to China she would be harmed or persecuted. The Tribunal did not accept that the applicant could not, or would not, return to China because she fears being persecuted there. The Tribunal found that there was no real chance that the applicant would face serious harm if she returned to her country.
The application for review before this court specifies three grounds. The first is: “I was tortured and prosecuted by my original government because I am a Christian.” That, of itself, is not a ground of review. To the extent that it might suggest that the Tribunal did not properly analyse those claims, I am not satisfied the Tribunal failed to so do. The applicant did not claim in her visa application (or any where else) that she was tortured or prosecuted for any reason let alone, by reason of her Christianity. In my view no jurisdictional error is demonstrated.
The second ground: “The Tribunal’s decision involved jurisdictional error affecting the decision which is subject to this application” is nothing more than a general statement without particulars. It warrants no further consideration.
The reasons for decision of the Tribunal demonstrate no jurisdictional error, nor does it demonstrate that the Tribunal applied “the wrong test.” – the third ground relied upon by the applicant.
There is no jurisdictional error demonstrated in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate:
Date: 3 November 2010
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