BZAAK v Minister for Immigration
[2010] FMCA 1027
•16 November, 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAAK v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 1027 |
| MIGRATION – Review of Refugee Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – where applicant claimed to be leader of Christian community – no appearance at hearing before Tribunal – no jurisdictional error established. |
| Migration Act 1958 (Cth), s.426A |
| Applicant: | BZAAK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 847 of 2010 |
| Judgment of: | Jarrett FM |
| Hearing date: | 16 November, 2010 |
| Date of Last Submission: | 16 November, 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 16 November, 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application filed 20 August 2010 be dismissed.
That the applicant pay the first respondents costs of and incidental to the application fixed in the sum of five thousand eight hundred and sixty-five dollars ($5865.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 847 of 2010
| BZAAK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex tempore
By his application filed on 20 August, 2010 the applicant seeks the issue of a writ of prohibition, a writ of mandamus and costs in respect of a decision of a Refugee Review Tribunal made on 19 July, 2010. By that decision, the Refugee Review Tribunal affirmed a decision of the Minister - or the Minister’s delegate - to refuse a Protection Visa to the applicant.
The material before me reveals that initially an application for a Protection Visa was made in the usual way, and the claim made by the applicant at that time was that he was heavily involved in - indeed, he says he was the leader of - a certain Christian organisation in his local area and that between the years of 2002 and 2005 and thereafter, he suffered persecution - that is my word, not his - at the hands of the Chinese authorities. He claimed in his statement in support of his application that he was jailed and that he came to the attention of the relevant authorities on more than one occasion and that for a period, he spent some time being “re-educated”.
The Minister’s delegate was not satisfied of the matters that the delegate needed to be satisfied of to grant the relevant visa and so, in accordance with provisions of the Migration Act, invited the applicant to attend before the delegate. That invitation was not taken up, and the delegate proceeded, as the delegate was entitled to do, to determine the visa application in the absence of the applicant. The visa was refused. From that decision, the applicant brought a review application to a refugee review tribunal, and the process repeated itself.
The material before me reveals that the Tribunal was unable to be satisfied of the matters of which it needed to be satisfied to grant the visa and so invited the applicant to a hearing before the Tribunal. That invitation to attend a hearing was sent in accordance with the provisions of the Migration Act. It is not suggested that the relevant procedures were not followed, and having reviewed the material myself, I can detect no error in the procedure adopted by the Tribunal. It was entitled to proceed to determine the review application in the absence of the applicant pursuant to s.426A of the Act.
The Tribunal determined the application and affirmed the decision of the delegate on the basis that it could not be satisfied and was not satisfied that the relevant prerequisites for the grant of the visa were made out. In particular, the Tribunal was concerned that there was some apparent inconsistency between the applicant’s statement accompanying his original application and some other information in the application, and the Tribunal required some clarification of those matters: hence the invitation to attend the hearing.
In the absence of the applicant, the Tribunal was unable to be satisfied on the evidence before it that there was a real chance that the applicant would suffer persecution for reasons of his religion or for any other convention reason if he returned to China.
The application before me specifies three grounds, but the applicant makes no submissions in support of any of them. My review of the Tribunal’s decision reveals that there was no breach of the rules of natural justice, and as I have already explained, the Tribunal was not satisfied of the matters that it needed to be satisfied of to grant the relevant visa.
That the Tribunal’s assessment of the matter was accurate seems to be borne out by the applicant’s own submissions today to the effect that he only wishes to stay in Australia until about May next year, whereupon he intends to return to China. I decide this application independent of that concession by the applicant but make that observation merely to demonstrate that the Tribunal’s assessment of the material before it seems to be correct.
In the circumstances, this application for review must be dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 11 February, 2011
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