SZCND v Minister for Immigration
[2006] FMCA 183
•3 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCND v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 183 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China claiming fear of persecution on the ground of religious belief – where applicant did not attend RRT hearing. |
| Migration Act 1958 (Cth), ss.425, 426A, 474 |
| SZDXC v Minister for Immigration & Multicultural Affairs [2005] FCA 1306 |
| Applicant: | SZCND |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 133 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 February 2006 |
| Date of Last Submission: | 3 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the Refugee Review Tribunal be joined as a party to the proceedings.
That the Refugee Review Tribunal be joined as Second Respondent to the proceedings.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00.
I recommend to the Minister for Immigration & Multicultural & Indigenous Affairs that the Applicant's bridging visa should be revoked.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 133 of 2004
| SZCND |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 24th November 2003 and handed down on 17th December 2003. It affirmed the decision of a delegate of the Minister, made on 13th February 2003, to refuse to grant a Protection (Class XA) visa to the applicant.
The applicant is a citizen of the People's Republic of China, who arrived in Australia on 20th October 2002. On 14th November 2002 he lodged an application for a protection visa. When the application for a visa was refused, the applicant applied for a review of that decision on 17th March 2003. The Tribunal wrote to the applicant on
9th October 2003, inviting him to attend a hearing on
Tuesday, 18th November 2003. The applicant completed a response to hearing invitation, informing the Tribunal that he wished to attend the hearing. He asked for the services of a Chinese interpreter in the Mandarin dialect. The applicant did not attend the hearing.
The Tribunal's decision record indicates that the applicant did not attend, nor did he send any letter or any other message, explaining why he was not able to attend. The Refugee Review Tribunal proceeded to make its decision on the review by applying the provisions of s.426A of the Migration Act, without taking any further action to enable the applicant to appear before it. In my view, that was an appropriate decision by the Tribunal member.
The Tribunal noted that the applicant did not attend, at page 79 of the Court Book:
and neither he nor his authorised recipient has since contacted the Tribunal.
The name of the authorised recipient is Priscilla Yu, whose address is given as care of a company known as Priscilla International Co Pty Ltd, suite 101 Dixon House, 413-415 Sussex Street, Haymarket, New South Wales.
The Tribunal member referred to the applicant's application for review lodged on 17th March 2003, and the attached statement, which was in the form of a statutory declaration declared the day before. The Tribunal noted that the applicant claimed a fear of persecution on the ground of his religious belief.
In its findings and reasons, the Tribunal considered the evidence before it but was unable to be satisfied, because of insufficient information, that the applicant was in fact a Christian, as he claimed. At page 81 of the Court Book the Tribunal member said:
Because the applicant did not attend the hearing, I was unable to ascertain the level of his commitment to the Christian faith, what his denomination is and test his claims. I was unable to determine whether the applicant is involved in Christian worship in Australia or whether he would become involved again if he were to return to the PRC. Accordingly, I am unable to find that he is a Christian.
The Tribunal was unable to be satisfied, from the evidence before the Tribunal, that the applicant faced a real chance of persecution, should he return to China at that time or in the foreseeable future. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The applicant filed an amended application for an order of review on 31st August 2004. The applicant gave two grounds upon which he sought judicial review. First he claimed there was an error of law in the Tribunal's decision, constituting a jurisdictional error. Particulars of that ground related to the applicant's claim in paragraph (a):
"The Tribunal's decision mainly relied on part of independent country information regarding two religious believers, churches and family gatherings in China.
The applicant repeated that claim in oral submissions at the hearing.
The answer to that ground is very simple. I have read through the Tribunal decision. The decision did not rely on independent country information at all. The applicant said that his migration agent told him that the Tribunal relied on independent country information.
As the evidence shows that the migration agent did not attend the hearing, it is difficult to know how the migration agent could have found that out. In any event, it seems as if the migration agent did not read the Tribunal decision either. That ground, obviously, fails.
The second ground says:
There was procedural error in the Tribunal's decision, constituting an absence of natural justice.
The amended application gives four particulars in support of that ground. The first ground, paragraph (e), claimed that the Tribunal failed to demonstrate its sufficient knowledge about underground religious activities, underground churches and organisations such as Bible study groups in China.
It is not up to the Tribunal to demonstrate its knowledge about such matters. It is up to the applicant to provide evidence to support his claims.
The second particular, paragraph (f), says:
The Tribunal failed to provide me a fair chance to explain my claim, to provide complete oral evidences and to clarify some of the issues during the hearing.
The applicant did not attend the hearing. He told the Court that he did not attend the hearing because he had changed his address and did not tell the Refugee Review Tribunal. Nevertheless, his migration agent was able to tell the Tribunal that the applicant was going to attend and required a Mandarin interpreter. If the applicant had attended the hearing, it would seem to me that he would have had a chance to give oral evidence and to clarify issues during the hearing.
The third particular provided is even more preposterous:
(g) The Tribunal failed to make sure that the interpreter arranged by the hearing should have sufficient religious knowledge; otherwise, it was obviously impossible for the interpreter to accurately translate the Tribunal's questions and my answers.
The applicant did not attend the hearing. He was not able to explain to the Court how he knew about the interpreter's lack of knowledge, and, in any event, since the applicant was not present, there was no opportunity for the interpreter to translate anything.
I turn now to the fourth particular, in paragraph (h):
The Tribunal has a strong bias toward my claims. It is with the bias the Tribunal many times interrupted my claims during the hearing.
There is no evidence of bias. The Tribunal could not have interrupted the applicant's claims during the hearing. The applicant did not attend the hearing. When I asked the applicant, at the hearing today, to explain how it was that the Tribunal was biased, he did not answer the question but instead launched into a statement of facts relating to this claim for a protection visa.
It is well-known that where applicants do not attend the hearing of the Refugee Review Tribunal, the likelihood that the Tribunal will be satisfied that they have provided sufficient evidence to establish that they meet the criterion under sub-s. 36(2) is very low, if not nonexistent.
This matter has been referred to in a number of cases, including the decision of Hely J in SZDXC v Minister for Immigration & Multicultural Affairs [2005] FCA 1306.
There is nothing in the applicant's submissions today, or in the applicant's amended application, which could best be described as a pack of lies, which establishes any jurisdictional error on the part of the Tribunal. The applicant's amended application, allegedly prepared by his migration agent, bears no resemblance to the applicant's case at all. The applicant's case is entirely without merit and should be dismissed.
The application will be dismissed. This is a proper matter for an order for costs. The amount sought, namely $3,000.00, is an appropriate figure in the circumstances.
In view of the fact that the applicant's case was entirely without merit, I recommend to the Minister for Immigration & Multicultural & Indigenous Affairs that the applicant's bridging visa should be revoked.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 10 February 2006
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