SZBCV v Minister for Immigration
[2005] FMCA 28
•11 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBCV v MINISTER FOR IMMIGRATION | [2005] FMCA 28 |
| MIGRATION – Review of decision of RRT – where applicant failed to attend hearing before delegate or Tribunal – where Tribunal unable to be satisfied he was a member of Falun Dafa – where applicant’s submissions did not reflect the grounds of application. |
Federal Court Rules
Migration Act 1958 (Cth), ss.61(1), 426A, 422B
NARE v Minister for Immigration [2003] FCA 554
| Applicant: | SZBCV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1538 of 2003 |
| Delivered on: | 11 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 January 2005 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the Respondent: | Mr C Mantziaris |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1538 of 2004
| SZBCV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People's Republic of China. He arrived in Australia on 30 December 2001. On 11 January 2002, he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 6 June 2002 a delegate of the Minister refused to grant a protection visa and on 27 June 2002 the applicant applied for review of that decision.
When the matter was before the delegate certain letters inviting comment had been sent to him and he had responded but the applicant did not attend the hearing before the delegate. When the matter came before the Tribunal the applicant was again invited to attend a hearing but declined to do so.
On 17 June 2003 the Tribunal, acting under its statutory powers found at s.426A of the Migration Act 1958 (Cth) (the “Act”), determined the application. It affirmed the decision not to grant a protection visa and it handed down that decision on 11 July 2003.
On 6 August 2003 the applicant filed with this court an application for judicial review. The grounds of that application were:
“1.The decision by the RRT was induced by actual bias of the officer.
2. There was no evidence or other materials to justify the making of a decision.”
The applicant claimed to have a well founded fear of persecution for the convention reasons of religion and/or membership of a particular social group arising out of membership of the Falun Dafa Movement, which he says that he joined in about 1997. After Falun Gong became outlawed by the Chinese government in 1999 he stated that he had been mistreated, confined, tortured and discriminated against. He told the delegate in his application that because persecution of Falun Dafa disciples is now going on more and more seriously in China he had to leave the country. He feared that if he returned he would be put into a detention centre again or might be sentenced to several years in gaol or in the madhouse if he was still in China.
In the absence of the applicant the Tribunal considered the written material provided by him and also certain independent evidence concerning the situation for Falun Dafa followers that is set out at [CB 117 to 119]. The Tribunal also considered independent country information and advice from DFAT concerning the ability of persons who might be wanted by the Chinese authorities for association with Falun Gong or Falun Dafa to leave the country.
The Tribunal noted at [CB 121] in relation to the consideration of this case by the delegate:
“The applicant was then asked [by letter] to bring a statutory declaration that he was a Falun Gong practitioner, and a statutory declaration from the Falun Gong organisation to which he belonged in Australia. That statutory declaration should confirm in detail his Falun Gong activities in both China and Australia and comment on the extent of his experience and commitment to Falun Gong, and contact details provided of the person who provided the information.”
The letter stated that if the applicant did not come to the interview, it would be treated as an indication that the applicant did not wish to contest the information provided. The applicant did not attend the interview.
After considering all these matters, the Tribunal stated at [CB 122]:
“As the applicant declined the Tribunal's offer to attend an oral hearing, the Tribunal has only the information contained in the written material before it from which to make a determination. There was nothing to support the applicant's claims in relation to his participation in the Falun Gong movement other than his unsubstantiated and untested assertions.
There are insufficient particulars provided by the applicant, such as the form of the exercises or the philosophy and the belief system of Falun Gong, to enable me to be satisfied that he was even a member of the Falun Gong movement. …
After careful consideration, I am unable to be satisfied from the relevant evidence before me that the applicant faces a real chance of persecution should he return to the PRC now or in the foreseeable future.”
The application which is before this court, referring as it does to actual bias, should have been accompanied by the particulars required pursuant to Order 54B Rule 2 of the Federal Court Rules. It was not.
The applicant appeared before me at the hearing having previously provided to the court a letter. That letter does not address either of the two grounds of review but seeks to impress upon me the genuineness of the applicant's connection with the Falun Gong movement. It also states that the applicant does not agree with the implications drawn by the Tribunal in its decision.
When I asked the applicant to inform me of the reasons that he believed the Tribunal had erred in law in the manner in which it had come to its conclusions he told me that an ordinary Falun Gong member would be treated strictly by the authorities, that the authorities had been to his house in China to investigate with the intention of arresting him, and that he had obtained a visa to Australia and travelled here. He also told me that he had found an article in a newspaper about a United States citizen of Chinese origin who was a Falun Gong member having gone to China and being arrested there.
It will be clear from the above matters that the applicant has nothing to say about any alleged jurisdictional error into which the Tribunal may have fallen, and in that regard I would refer him to the decision of Allsop J in NARE v Minister for Immigration [2003] FCA 554 where his Honour indicated that the court does not and cannot involve itself in refinding of facts found by the Tribunal:
“…It is not the Court's job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to betray a failure to undertake properly the required task. This is why it was not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
The Tribunal's duty under s.65(1) of the Act is to satisfy itself that the visa criteria were or were not established. In this case it did that by considering the submissions made by the applicant to the delegate and to itself by making an assessment of them when considered in the light of country information and DFAT reports. If the applicant had attended the hearing he may have been asked questions which would have assisted the Tribunal to come to a decision but he did not do so.
The decision itself is one which is subject to s.422B of the Act and nothing has been put before me to indicate that any breach of the natural justice hearing rule set out in that subsection has occurred.
I am satisfied from my reading of the papers that any information relied upon by the Tribunal was information which fell within s.424A(3) of the Act because it was not information specifically about the applicant or another person.
I am unable to find that any jurisdictional error has occurred in the making of this decision. The application is dismissed. I order that the applicant pay the respondent's costs which I assess in the sum of $4250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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