SZBWA v Minister for Immigration
[2005] FMCA 1737
•24 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBWA v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1737 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China based upon his practice of Falun Gong – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.426A |
| SAAP v Minister for Immigration& Anor (2005) 215 ALR 162 |
| Applicant: | SZBWA |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2408 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 24 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 24 November 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr J Mitchell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
(1)The Refugee Review Tribunal is joined as the second respondent to the proceedings.
(2)The application is dismissed.
(3)The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2408 of 2003
| SZBWA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application seeking judicial review of a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 8 October 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. He is from China and had made claims of persecution based upon his practice of Falun Gong.
The applicant arrived in Australia on 14 September 2002. He lodged a protection visa application on 4 October 2002. That application was refused by the Minister's delegate on 10 December 2002. In his review application to the RRT the applicant adopted the claims that he had made in his protection visa application. The RRT had before it the Minister's Department's file. The RRT also had the delegate's decision record and access to country information relied upon by the delegate. The RRT also had the protection visa and the review applications made by the applicant.
The material before the RRT did not satisfy it that a protection visa should be granted. On 14 August 2003 the RRT wrote to the applicant to advise him of this and to invite him to a hearing[1]. A letter was sent to the street address and post office box provided by the applicant to the RRT. As is recorded by the presiding member on page 66 of the court book, the letter sent to his street address was returned unclaimed. There was no response to the letter sent to his post office box. The RRT had no other means of contacting the applicant. In the circumstances, the presiding member decided to proceed without an oral hearing. Having already decided that the material before the RRT was insufficient to support the granting of a protection visa, it is unsurprising that the decision ultimately made by the RRT confirmed that position.
[1] court book, page 56
The applicant's claims before the RRT and the decision on them are summarised in paragraphs 4 and 5 of the Minister's written submissions. I agree with and adopt that summary for the purposes of this judgment:
The applicant claimed in his application for a protection visa dated 14 September 2002 that:
a)In the summer of 1999 the local police summoned the applicant to go to the police station to “convince my involvement of Falungong”.
b)The local government required the applicant’s employer to suspend his job because the applicant insisted that there was nothing wrong with Falungong.
c)In February 2001 five people associated with Falungong were set alight in Tian An Men Square.
d)The government suppressed Falungong again.
e)The applicant told the government and the public about Falungong and the benefits he had experienced from it. The local government did not agree with him.
f)A local government officer visited the applicant’s home and “they” forced the applicant to give up Falungong.
g)The applicant knew of some terrible stories of practitioners of Falungong and he realised that if he stayed in China and refused to give up Falungong he would face difficult circumstances, including being sent to jail.
h)He had to pay money to obtain a visa and leave China.
The applicant repeated these claims in his application for review filed on 10 December 2002[2]:
[2] court book, pages 52 and 53
The applicant was invited to attend an RRT hearing on 10 September 2003 in a letter dated 14 August 2003[3]. The invitation was sent to the applicant’s mailing address and home address provided by the applicant in his application for review[4]. The applicant did not attend the RRT hearing. The RRT proceeded to make its decision in the absence of the applicant pursuant to s.426A of the Migration Act 1958 (Cth)[5]:
[3] court book, page 56
[4] court book, pages 48, 56 and 57
[5] court book, page 66
RRT decision
The RRT presiding member concluded that:
a)The applicant is a national of China.
b)The presentation of the applicant’s claims lacked detail and credibility in several important respects, such that the RRT was unable to establish relevant facts.
c)The applicant provided no details and no supporting information or evidence.
d)The applicant was silent as to whether any of his friends suffered similarly to himself.
e)There was no explanation in his application as to what happened to him between the summer of 1999 and 2002 or precisely when and why he was visited by a local government official.
f)The presiding member was unable to accept that a person who fears persecution would willingly return to the source of his persecution, so soon after having left it.
g)The applicant was able to leave China and return and leave again and this cast serious doubt on his claim to have been of interest to local authorities.
h)The presiding member was unable to accept that the applicant’s subsequent return to and departure from China was facilitated by bribery and the applicant made no claim to that effect.
i)He was unable to be satisfied that the applicant was a Falungong practitioner.
j)He was unable to be satisfied that the applicant was obliged to renounce his claimed Falungong beliefs or that he was suspended from his job.
k)He was unable to be satisfied that the applicant suffered persecution in the past because of his Falungong activities.
l)The applicant did not have a well-founded fear of persecution for any Convention reason now or in the reasonably foreseeable future if he returns to China.
The judicial review application filed on 10 November 2003 asserts jurisdictional error in general terms. The only particular that makes any legal sense is the assertion that there was no evidence or other materials to justify the making of the decision. That ground of review must fail as there clearly was evidence before the RRT upon which its decision was based. No other legal, let alone jurisdictional, error is apparent to me and the applicant was not able to identify any when I gave him the opportunity to do so.
Because the RRT decision is free from jurisdictional error, it is a privative clause decision. It follows that the application must be dismissed. However, before dismissing it and consistent with the High Court in SAAP v Minister for Immigration& Anor (2005) 215 ALR 162, I will join the RRT as the second respondent to the application.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,684. The applicant did not wish to be heard on costs. I have no difficulty in accepting that costs of not less than $3,500 have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. I will award costs fixed in that amount.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 1 December 2005
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