SBGC v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1207

FEDERAL COURT OF AUSTRALIA

SBGC v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1207

SBGC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

No S 122 of 2005

FINN J
ADELAIDE
30 AUGUST 2005

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 122 OF 2005

BETWEEN:

SBGC
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

30 AUGUST 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the first respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 122 OF 2005

BETWEEN:

SBGC
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	FINN J
DATE:	30 AUGUST 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant, a citizen of the People’s Republic of China, applies to this Court under s 39B of the Judiciary Act1903 (Cth) to review a decision of the Refugee Review Tribunal (“Tribunal”) affirming the decision of a delegate of the respondent Minister not to grant a protection visa. The applicant arrived in Australia on 9 January 1998 travelling on Hong Kong identity documents.

2. In her application for a protection visa she claimed that:

   (i)she had been appointed as a social worker in a village in Fujian province, China, and given responsibility for matters such as birth control, one child policy and family planning;

   (ii)she came into conflict with the village head over his disregard for the one child policy in application to his own family and later he blamed her for criticism by the Country Women’s Association of the village’s poor adherence to the one child policy;

   (iii)the village head directed the applicant to arrange a very late-term abortion for one Mrs Wang, and Mrs Wang was forced into this.  Mrs Wang and her unborn child died as a result of the operation;

   (iv)Mrs Wang’s family blamed the applicant, who feared for her life and had to leave the village;

   (v)the applicant then fled to Hong Kong in November 1985, where she was granted permanent residency in May 1989;

   (vi)while in Hong Kong she actively participated in democratic movements and protested against the Chinese government;  and

   (vii)she left Hong Kong following the handover to China, and fears persecution by the Hong Kong Government on the basis of her protests against the Communist Party Committee’s (CPC) rule and the ‘Provisional Legislative Council’ in Hong Kong.

   PROCEDURAL HISTORY

3. Her application having been refused by the delegate, she applied for a review before the Tribunal, that application reiterating the claims in the original application.  The history of the matter leading up to the Tribunal’s decision was noted by it in the following terms:

   “On 3 October 2000 the Tribunal wrote to the applicant, by registered post, advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 15 November 2000.  The applicant was advised that if she did not attend the hearing and a postponement was not granted that the Tribunal may make a decision on her case without further notice.  No response was received and the letter was not returned to the Tribunal.  The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear.  A check of the Department and Tribunal files, and a check with the Department indicates that no other addresses are known, the applicant has never had an adviser, nor has she ever notified a telephone contact number.  In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.”

   THE TRIBUNAL’S DECISION

4. Having set out the applicant’s claims, and noting that prior to the hearing it had indicated to her that it was not prepared to make a favourable decision on the information alone that had already been provided to it, the Tribunal made the following comments:

   “If the applicant had attended for hearing the Tribunal would have discussed these claims with her and put to her that the matters from 1983 to 1985 do not appear, on the face of what has been said, to be Convention related.  The harm she fears is serious, but the motivation of the husband and father is revenge and retribution for the death of his wife and child for which he holds the applicant responsible.  There is nothing to indicate that he is motivated for any other reason.  If the applicant had attended and given evidence it would also have been discussed with her why she could not have sought and received assistance from the authorities for the claimed threat, and why she could not have moved somewhere else.  In relation to her claims relating to Hong Kong she would have been asked for better detail of her involvement in the various matters raised by her.  Her claims relating to Hong Kong are at best vague.  It would have been put to her that her involvement was at best minor in relation to support for democracy and such minor involvement would not cause anyone to be adversely interested in her.  As the applicant has not availed herself of the opportunity to give evidence at hearing these matters cannot be raised with her.

   The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.”

   THE PRESENT APPLICATION

5. The s 39B application is particularly uninformative, simply reiterating in general terms alleged jurisdictional errors but complaining principally that the Tribunal member refused to accept her claim for refugee status. Her submissions in support of the present application merely reiterate, in substance, the claims she made in her original application for a protection visa. They do not disclose any possible basis to attract the jurisdiction of this Court. At the hearing she again reiterated her claims and fears and, in reply, stated that she did not attend the Tribunal hearing because she was scared that if she lost she would be deported to China. This was the first mention of this latter matter.

6. The first respondent has filed an objection to competency on the basis that this application was filed outside the 28 day period provided for by s 477(1) of the Migration Act 1958 (Cth), although the first respondent accepts that that subsection will not apply if the decision is affected by jurisdictional error.

7. Having regard to the reasons of the Tribunal and to the submissions that have been made, it is only possible to conclude that no such error has been made.  Indeed one can only say in this matter that the applicant is the author of her own harm.  She was given opportunities to prosecute her claim in a way that could satisfy the Tribunal of the veracity of her claims, knowing prior to the hearing that it was not so satisfied.  She took no positive steps in this regard.  Her late explanation for why she did not attend merely demonstrates ill-judgment on her part.  The Tribunal acted as it was entitled to under the Act. 

8. The reasons given by the Tribunal for not accepting the applicant’s claims on the material before it do not disclose jurisdictional error.  Accordingly her application must be dismissed with costs. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:             30 August 2005

The Applicant appeared in person.
Counsel for the First Respondent:	Dr C Bleby
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	30 August 2005
Date of Judgment:	30 August 2005