SZAYQ v Minister for Immigration - [2004] FMCA 819

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYQ v MINISTER FOR IMMIGRATION

[2004] FMCA 819

MIGRATION – Review of decision of RRT – where applicant is Falun Gong adherent – where Tribunal assessed his claim in his absence – whether jurisdictional error in Tribunal’s decision.

Federal Court Rules 1979
Federal Magistrates Court Rules 2001
Migration Act 1958 (Cth), s.426A

Minister for Immigration v Jia (2001) HCA 17

Applicant:

SZAYQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1365 of 2003

Delivered on:

10 November 2004

Delivered at:

Sydney

Hearing date:

10 November 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1365 of 2004

SZAYQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the Peoples Republic of China. He arrived in Australia on 20 January 2002. On 31 January 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 16 April 2002 a delegate of the Minister refused to grant the protection visa and on 18 April 2002 the applicant applied for a review of that decision.
On 27 February 2003 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his 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 16 April 2003. On 11 March 2003 the applicant advised the Tribunal that he wanted to give oral evidence. On 11 April 2003 the Tribunal received another acceptance of hearing notice from the applicant.
However, on 10 April 2003 the Tribunal received a letter from his authorised representative seeking postponement of the hearing. The Tribunal agreed to a postponement of one week until 23 April 2003. On 16 April 2003 the applicant indicated that he wished to attend the hearing on the rescheduled date. However, on the day of the hearing about half an hour before it was scheduled to begin he phoned the Tribunal to say that he had decided not to attend. A letter was received from the applicant explaining that he had not attended the hearing because he was seeking documents from DIMIA and could say nothing without them.
On 29 April 2003 the Tribunal offered the applicant a further opportunity to attend the hearing on 21 May 2003. The applicant responded on 29 April 2003 that he wished to give oral evidence on the rescheduled date. However, he did not attend the hearing or contact the Tribunal to explain his non-attendance. The Tribunal proceeded to make a determination pursuant to s.426A of the Migration Act 1958 (Cth).
Before me today the applicant said that the reason that he had not attended the Tribunal was that he did not have notice of the Tribunal's hearing. This is blatantly incorrect. The address to which all the notifications were sent was the same address as the applicant had used in the application to this court at a time after the decision had been given. I can only assume that it was an available address for him at all times.
The applicant's claim to have a well founded fear of persecution for a Convention reason arose out of his alleged adherence to Falun Gong. In the papers that were before the Tribunal the applicant had indicated that he had been practising Falun Gong since about 1998. He had introduced the philosophy to relatives, friends and neighbours. For three years he had no problems but when the movement was banned in July 1999 he was placed in detention for four days. He was told to give up practising Falun Gong but refused and was tortured to force him to do so. However, after his release he kept practising. He was detained again in May 2000 and tortured. In order to survive he fled China.
The above claims had been made before the delegate. The delegate had provided the applicant with certain information which he intended to use in coming to his decision. This information is set out at [CB 78]. The applicant did not respond.
The Tribunal reviewed the information that was before it and compared it with the country information within its possession. At [CB 81] it notes that although the applicant claimed that after his second detention in May 2000 he fled China he did not actually get a passport until November 2001 some 18 months after his release. The Tribunal also noted independent country information that a person who obtained a passport in his own name and utilised it to travel abroad was unlikely to be a person of interest to the Chinese authorities. Thereafter at [CB 80] the Tribunal says:
“The presentation of his claims are so vague and lacking in detail in key respects, that I am unable to establish all the relevant facts. The applicant was put on notice by the delegate that he had problems with his claims and was invited to comment. He did not respond. He was also advised by the Tribunal that I was unable to make a favourable decision on the information before me but he has provided no further information in support of his claims. As he has not given me the opportunity to explore aspects of his claims with him a number of key questions about his circumstances are left unanswered.”
The applicant made an assertion that the authorities in the PRC are happy to allow Falun Gong adherents to leave the country as it will cause them less problems. In respect of this assertion the Tribunal says at [CB 82]:
“However, he has presented no documentary information to support this assertion, and I see nothing to sustain it in the independent country information available to the Tribunal. Somewhat inconsistently, he also claims that the authorities do not deny Falun Gong practitioners passports or exit permits so long as they cease their Falun Gong activities. However, he claims that he continued practising Falun Gong after he was released the first time... on the basis of the evidence before me I am unable to be satisfied that the applicant is a Falun Gong practitioner or that he was ever detained for practising Falun Gong. Hence, I do accept that he will "keep practising Falun Gong forever” and will say that it is good.”
The Tribunal concluded that the applicant did not have a well founded fear of persecution for reason of his membership of any particular social group or any other Convention reason if he returned to China.
The applicant gives two grounds for saying that the Tribunal made a jurisdictional error in his application. The first ground is that the decision was induced by actual bias. In this regard the applicant has provided no particulars as required by Order 54B, Rule 2 of the Federal Court Rules 1979 or the equivalent rule in the Federal Magistrates Court. Nothing he has said today approached such particulars. As Gleeson CJ and Gummow J said in Minister for Immigration v Jia (2001) HCA 17 at [69] and Kirby J said at [127]:
“A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be distinctly made and clearly proved.”
The applicant has not clearly proved this allegation and it is not accepted.
The second ground was that there was no evidence or other materials to justify the making of a decision. The decision is one based upon the Tribunal's failure to be satisfied that the applicant has a well founded fear or persecution for a Convention reason. The Tribunal explains clearly why that failure of satisfaction has arisen. Whilst it is clear that there is no burden of proof placed upon an applicant he does have a duty to satisfy the Minister that he has grounds to obtain Australia's protection. Insofar as there was "no evidence" it was the applicant's failure to provide evidence and not that of the Tribunal.
Before me today the applicant spoke to some written submissions which he had faxed into the court on 23 October 2003. He criticises the Tribunal for an observation it makes at [CB 81] that:
“He indicated in the Form C questionnaire that he has never been convicted of any crimes or offences, and that there are no criminal investigations or outstanding charges pending against him. This does not gel with his claimed fear of persecution if he returns to China.”
The applicant says that it is not a crime in China to practise Falun Gong and the investigations into Falun Gong practitioners should not be regarded as criminal investigations. The difficulty which I have in considering this submission is that it really relates to a factual error on the part of the Tribunal which, if correct, and if it was determinative of the decision would still be an error within jurisdiction and thus one to which the privative clause would apply.
The other point made by the applicant orally was that the Tribunal had not really properly considered the fact that he would return to China and continue to practise Falun Gong. The Tribunal did consider this. It considered it in the extract from [CB 82] that I have already quoted. The Tribunal came to the conclusion that on the evidence before it the applicant would not continue to practise Falun Gong in China because the Tribunal was not satisfied that he was a Falun Gong practitioner at all.
I am unable to find any grounds upon which the Tribunal can be said to have fallen into jurisdictional error in the decision which he had made in this case. I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: