SZCPW v Minister for Immigration
[2005] FMCA 100
•27 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCPW v MINISTER FOR IMMIGRATION | [2005] FMCA 100 |
| MIGRATION – RRT decision – Falun Gong practitioner did not attend Tribunal hearing – no error found. |
Migration Act 1958 (Cth), ss.425A, 426A, 441A(4), 441C(4), 483A
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
| Applicant: | SZCPW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 266 of 2004 |
| Delivered on: | 27 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 27 January 2005 |
| Judgment of: | Smith FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr P Carr |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent's costs in the sum of $4000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 266 of 2004
| SZCPW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal handed down on 14 January 2004. The Tribunal affirmed a decision of the delegate made on 31 January 2003 refusing a protection visa to the applicant.
The Court's jurisdiction under s.483A is "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". In cases such as the present, that jurisdiction is a general judicial review jurisdiction conferred by s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As construed in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 and subsequent cases, these limitations require me to identify jurisdictional error before the Court can set aside the decision of the Tribunal and order a re-hearing.
In the present case, the applicant arrived in Australia on a one month visitor's visa on 19 September 2002. She lodged an application for a protection visa on 17 October 2002. Attached to the application was a short statement setting out her claims to satisfy the definition of refugee in the Refugees Convention. She said that she had left China because “I worry that the Chinese authority would persecute me”. She said her husband was a Falun Gong practitioner, and that because of his activities with Falun Gong he had been in a detention centre since January 2001. She said she had learnt to practice Falun Gong from her husband but because she was not working, she had not been found to be practicing Falun Gong by the Chinese authorities before she came to Australia. She continued:
Seeing my husband suffering and the fact that I had been involved with Falun Gong activities, I decided to leave China to come to Australia for protection. I worried that soon or later, they would find out that I have been involved with Falun Gong and would persecute me as what they did to my husband.
She said she had been able to arrange a passport to leave China because she knew people working in the passport office and paid them money “to arrange me the passport to leave China on time.”
The delegate refused the application on 31 January 2003. Her reasons were sent to the applicant, and these pointed to “a number of factors which casts serious doubts on the credibility of her claims, and the genuineness of her claimed fear of Convention related persecution”. She said that “the information provided by the claimant is broad, vague and lacking in relevant detail and contains statements that are inconsistent with other information either from the application itself or other sources”, and gave instances of this. She said that she considered that the applicant would have provided more detailed information and some evidence to support her claims if she had been actively involved in any Falun Gong related activities.
The applicant filed an application for review of the delegate’s decision on 6 March 2003 assisted by a migration agent. Her application was not accompanied by any further detail or supporting evidence. On 6 March 2003 she was sent a letter by the Tribunal indicating that it would consider her application when it received the file from the Department and that, if it could not make a decision in her favour, it would invite her to attend a hearing. The letter included the following:
What is a hearing and why is it important?
A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence can include:
. what you tell the member at the hearing
. the information or documents you give the Tribunal
. information or documents you ask others to give the Tribunal.
On 26 September 2003 the Tribunal sent by registered post a letter to the applicant at three addresses: to her home address; to her at her agent's address which she had given as her mailing address; and also a copy to her agent who she had nominated as an authorised recipient. The letter invited the applicant to attend a hearing on 3 December 2003, and warned that “if you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.”
I am satisfied that the service of the letter complied with the provisions of ss.425A, 441A(4), 441C(4) of the Act, and Migration Regulation 4.35D. In those circumstances the Tribunal was entitled to proceed under s.426A “without taking any further action to allow or enable the applicant to appear before I” if she did not appear before the Tribunal on the nominated hearing date.
Prior to that date, on 27 October 2003 the Tribunal received a “Response to hearing invitation” form signed by the applicant and dated 27 October 2003, which indicated in response to the question: “Do you want to come to a hearing?”:
No, I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
The Tribunal records in its reasons that the applicant did not attend the hearing and that its attempts to contact her on the only telephone number on the file were without success. The Tribunal decided to determine the matter on the evidence available to the Tribunal. I think there was no error of law, nor denial of procedural fairness, nor failure to follow a statutory procedure in the Tribunal deciding to proceed in that manner.
The Tribunal sets out the claims made by the applicant which I have summarised above. It said:
Generally where broad allegations are made, the Tribunal hearing is an opportunity for the Tribunal to gather detail about the claims with the applicant. The applicant has not provided any further information in support of her claims despite ample opportunity to do so. Nor has she given the Tribunal the opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered.
The Tribunal points to problems with the applicant's claims as they appeared to the Tribunal. For example, they were very general and lacked detail. The applicant's claim to have bribed someone to give a passport was not explained, and appeared inconsistent with the fact that she had obtained her passport in October 2000, three months prior to the claimed detention of her husband. Also, the applicant had not explained the situation of a son, whom she said in her application form she had left in China. Nor had she addressed an important point made by the delegate, suggesting that she would not have been able to leave China if she was of interest to security authorities.
The Tribunal concluded:
In light of all the above and in the absence of an opportunity to examine the applicant's claims with her, I am unable to be satisfied that the applicant has ever been a Falun Gong practitioner or that her husband was one or that he was gaoled for being one. I find the applicant does not have a well-founded fear of persecution in China for any Convention reason.
The applicant's application to this Court filed on 4 February 2004 set out no proper grounds for review and did not particularise an allegation that: “the Tribunal made jurisdiction mistake in saying I was not a refugee”.
She was directed to file an amended application with complete particulars, and on 6 September 2004 did file a document headed "Amended application". It says:
I believe that the (Tribunal) made jurisdiction mistakes when considering my application; he had bias against me when considering my application”.
However the further paragraphs in that document amount to no more than disagreement with factual conclusions made by the Tribunal, and an indication of arguments which might have been put to the Tribunal by the applicant if she had attended the hearing. If she had done that then they would have been taken into by the Tribunal. However, as I have indicated, she did not attend and the Tribunal made no legal error in deciding to proceed in her absence. I consider her complaints of “jurisdiction mistake and bias” are without substance, and that the applicant has been unable to identify any legal error in the Tribunal's reasoning or procedures.
The applicant had nothing to say to me at today’s hearing, except by affirming that she was a Falun Gong practitioner and wanted to stay in Australia. These propositions do not advance her case for judicial review.
For the above reasons I dismiss the application.
RECORDED: NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $4000
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 11 February 2005
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