SZBCM v Minister for Immigration
[2004] FMCA 985
•15 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBCM v MINISTER FOR IMMIGRATION | [2004] FMCA 985 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether the RRT overlooked a relevant consideration – whether the RRT decision was unreasonable – whether the RRT proceeding was fair – whether there was a constructive failure to exercise jurisdiction – no reviewable error found – application dismissed. |
Appellant S395/2002 v Minister of Immigration (2003) 203 ALR 112
Minister for Immigration v Yusuf (2001) 206 CLR 323
| Applicant: | SZBCM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1520 of 2003 |
| Delivered on: | 15 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 15 December 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1520 of 2003
| SZBCM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was made on 11 June 2003 and handed down on 8 July 2003. The RRT affirmed a decision of the Minister's delegate not to grant the applicant a protection visa. The applicant is from China. He claimed a protection visa on the basis of his practice of Falun Gong. I adopt by way of background paragraphs 2 to 8 of written submissions prepared by Mr Smith for the Minister:
The applicant, a citizen of China who arrived in Australia on 3 April 2002, applied for a protection visa on 15 April 2002. On 30 May 2002 a delegate of the respondent refused to grant the applicant a visa and on 7 June 2002 the applicant applied to the RRT for review of that decision.
The applicant was invited to give oral evidence at a hearing to be held by the RRT on 10 June 2003. The applicant indicated in writing that he wished to attend such a hearing; however he did not attend and the RRT handed down its decision affirming the decision of the delegate on 8 July 2003.
The applicant claimed that he feared harm because of his belief and involvement in Falun Gong.
RRT’s Decision
The RRT found that the applicant was not a genuine Falun Gong practitioner. That effectively removed the entire basis for the applicant’s claims to be a refugee and entitled the RRT, without more, to affirm the decision under review.
However, the RRT went on to consider other factual matters raised by the applicant, including his involvement in a group which the applicant claimed was organising protests against the government’s attitude to Falun Gong. Amongst the reasons for rejecting this particular claim was that the applicant said that the group was organising a protest at the time the applicant already had settled plans to leave for Australia on a temporary business visa.
The RRT found, in any event, that the applicant’s ability to depart China on a passport issued in his own name indicated that he was of no adverse interest to the Chinese authorities.
On the basis of these findings, the RRT concluded that the applicant was not a person to whom Australia had protection obligations and so affirmed the decision of the delegate.
It is clear from my reading of the RRT decision that the applicant failed because he was not believed. The presiding member did not accept that the applicant was a genuine Falun Gong practitioner. The presiding member also found that, in any event, the applicant's own claims did not indicate that he was of any particular interest to the Chinese authorities. Further, the presiding member found that the applicant could continue to practice Falun Gong in secret, in his own home, should he return to China.
The applicant relies upon his judicial review application filed on 4 August 2003. That application raises two potential grounds of review. The first is that the RRT ignored parts of his claims. Alternatively, the applicant contends that the decision reached by the RRT was not reasonable. Mr Smith deals with the first claim in paragraph 10 of his written submissions. Paragraph 11 is also relevant. I agree with and adopt those paragraphs for the purposes of this judgment:
There is no indication of which parts of the applicant’s statement (court book, pages 48 – 50) were ignored by the RRT. It is clear that it had the statement, read it and considered it. The statement was the only document put forward by the applicant containing any specific claims to be a refugee. The delegate’s reasons for decision reveal no more than a claimed adherence to the practice of Falun Gong: court book, pages 54 – 60. If the RRT did not have the applicant’s statement, it could not have known what the applicant’s claims were at all. It must be inferred that the RRT considered the statement.
As noted in paragraph 5 above, the RRT’s rejection of the applicant’s claim to be a practitioner of Falun Gong effectively dealt with the whole of the applicant’s case. If there were any detail in the statement that was not expressly referred to in the RRT’s statement of reasons it was because that detail was not material to the decision: Minister for Immigration v Yusuf (2001) 206 CLR 323, 353.
Further, on my reading of the RRT decision and the applicant's claims, it is impossible to sustain the proposition that the decision was unreasonable. The conclusions reached by the presiding member were clearly open to him on the material before him.
The applicant explained to me how he came to practice Falun Gong and why he continued to believe in it. These were matters that he could have put to the RRT had he attended a hearing. Mr Smith tendered a hearing invitation sent to the applicant and his migration agent on 28 April 2003. I accepted this as exhibit R1. The applicant could not recall receiving the letter, but acknowledged that he had seen letters like it. He cannot read English. He told me that he was entirely reliant upon his migration agent, Mr Jack Meng.
It is apparent from the court book that Mr Meng assisted the applicant to complete the documents upon which he relied. Mr Meng was properly appointed as the applicant's migration agent. Mr Meng completed the response to the hearing invitation that appears on page 66 of the court book. The applicant could not recall discussing the hearing invitation with Mr Meng. The applicant says that he did not know there was a hearing he could attend. If there was a breakdown in communication between Mr Meng and the applicant, that was not the fault of the RRT. The presiding member notes on page 70 of the court book that the applicant indicated he wished to attend a hearing, but failed to attend. In the circumstances, the presiding member was correct in concluding that the RRT was entitled to proceed in the absence of the applicant. There was no procedural unfairness in that approach.
On page 77 of the court book, the presiding member made a finding which was secondary to his principal finding. The presiding member said that even if the applicant were a genuine Falun Gong practitioner, on his own evidence he would be able to return to China and to practice Falun Gong secretly in the privacy of his own home. That finding would be problematic in the light of the High Court decision in Appellant S395/2002 v Minister for Immigration (2003) 203 ALR 112 if it were determinative of the outcome of the applicant's protection visa claim. However, the presiding member had already found that the applicant was not a genuine Falun Gong practitioner. The presiding member had already found that the applicant was not of any interest to the Chinese authorities. I find that the alternative and secondary finding made by the presiding member was not determinative of the outcome of the applicant's claims.
Even if I were wrong in that conclusion and even if the secondary finding by the presiding member established jurisdictional error, I would, in the exercise of discretion, decline to provide prerogative relief. That is because the degree of certainty in the presiding member's credibility finding means that it would be futile to return this matter to the RRT for a further hearing.
I dismiss the application for judicial review.
The application having been dismissed, costs should follow the event. Mr Smith seeks a costs order fixed in the sum of $4,000 on a party and party basis. I agree that costs of that amount have been reasonably and properly incurred on behalf of the Minister. The applicant continued to assert the merits of his judicial review application, but he did not wish to make any submissions on costs. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 December 2004
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