SZCUI v Minister for Immigration - [2005] FMCA 820

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCUI v MINISTER FOR IMMIGRATION

[2005] FMCA 820

MIGRATION – RRT decision – Chinese Falun Gong practitioner – did not attend Tribunal hearing – no error found.

Migration Act 1958 (Cth), s.483A, Part 8

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZCUI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 471 of 2004

Judgment of:

Smith FM

Hearing date:

31 May 2005

Delivered at:

Sydney

Delivered on:

31 May 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms R Pepper

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 471 of 2004

SZCUI

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) which challenges a decision of the Refugee Review Tribunal dated

2 January 2004 but not handed down until 27 January 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In a matter such as the present the relevant jurisdiction is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted by the High Court of Australia in the case of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the Tribunal decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant should be believed and whether he qualifies for a refugee visa.
In the present case the applicant arrived in Australia in November 2002 from China. He lodged an application for a protection visa on

19 December 2002 assisted by an agent, Orchid Sit. In a short statement attached to the application he said that he had been a member of Falun Gong since 1998. He said that, in July 1999, the government:
Announced Falun Gong association to be an illegal organisation and started to arrest the members of the organisation.
He said: “I had to leave my home to hide at my cousin's home”. He said that in July 1999 he went to Beijing with thousands of other people to present a petition. On the next day, “we were forced to go back to our home town”. When he got back to his town, he “realised the dangerous situation, and tried to contact a person who could arrange me to leave China”. He said he left China in November 2002. He said, “if I go back, I will be detained and persecuted”.
No corroboration or further details of his account were given to the delegate, who refused the application on 18 February 2003. In reasons that were sent to the applicant, the delegate drew attention to the fact that:
The applicant has provided no details whatsoever of ever personally suffering any harm or mistreatment in the PRC of sufficient gravity as to constitute persecution in terms of the Convention.
The applicant appealed to the Refugee Review Tribunal on 25 March 2003 assisted by Orchid Sit, who he designated as his “authorised recipient to act on my behalf in relation to this case”.
By letter dated 28 November 2003 the Tribunal wrote to the applicant at his mailing address, which was also Orchid Sit's address, as well as to his home address. The Tribunal told him that it had considered the material before it: “but is unable to make a decision in your favour on this information alone”.
It invited him to attend a hearing on 14 January 2004, “to give oral evidence and present arguments in support of your claims”. It told him:
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.
It invited him to send the Tribunal “any new documents or written arguments you want the Tribunal to consider”, and also requested him to return a form indicating a response to the hearing invitation.
On 31 December 2003, such a form signed by the applicant was returned to the Tribunal indicating 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 me or enable me to appear before it.
In its statement of reasons the Tribunal described the above procedure and stated:
This matter has therefore been determined on the evidence available to the Tribunal.
It seems, however, that the Tribunal delayed the handing down of its decision until after the appointed hearing date, to allow for the possibility of the applicant changing his mind. There is no evidence before me that the applicant ever sought to attend a hearing, and when questioned by me this morning he did not dispute that he had told the Tribunal that he did not wish to attend.
In its statement of reasons, the Tribunal carefully analysed the material before it. It referred to background information concerning the treatment of Falun Gong practitioners and passport and exit procedures in China. It pointed to the opportunities the applicant had to present his claims, and referred to the notable absence from his claims in the material before the Tribunal of an explanation for the gap of 14 months between the events of July 1999, when he attended the presentation of the petition in Beijing, and his departure from China in November 2002. It also referred to an inconsistency between his claims about hiding and statements in his visa applications that he had held continuous residence and employment until his departure.
The Tribunal gave a list of reasons why it formed the view that the applicant's claims about future persecution by the Chinese authorities were not credible. It is not necessary for me to analyse these further. Its essential reason was that, in the absence of further details and explanations from the applicant, his claims to fear persecution should not be accepted.
In my view the Tribunal made no error of law, and its decision was not affected by jurisdictional error, when it arrived at its ultimate conclusion that the applicant “did not and does not have a well-founded fear of persecution within the meaning of the Convention.”
The application to this Court filed on 25 February 2004 contains two grounds. First:
I was not given a proper opportunity to explain my case.
And secondly:
The Tribunal was wrong to find I was not a refugee. The Tribunal made mistakes in saying I was not a refugee.
Manifestly, there was no substance to the first complaint, and the second does not identify any jurisdictional error.
The applicant attended a first Court date before a Registrar in June 2004, and was directed to file an amended application. Such a document was filed on 30 September 2004. It follows a precedent familiar to the Court, and includes a rolled up claim that the Tribunal:
made jurisdiction mistakes … had bias against me … made the conclusion based on some wrong information … and did not have any evidence to justify his decision. He assumed that I would not be persecuted on my return to PRC …
I can find no substance to any of these complaints on the material before me.
The amended application further complains:
I did not receive the later correspondence, I believe that the Tribunal sent the correspondence to the wrong places; I did not receive an invitation for hearing. I therefore was not given a proper opportunity to explain my case.
These assertions are false, and the applicant made no attempt to justify their inclusion in a document filed in the Court, when I raised them with him.
The further criticisms in the amended application have no apparent basis.
The applicant attended today's hearing, and initially told me he had nothing to say. I canvassed some of the problems in the documents he had filed, and pointed out that the Tribunal's decision had followed upon his decision not to attend this hearing. He then told me he had a submission to read to me and started reading from a document. This included reference to his having made refugee claims on the basis of having been a “Shouter”, which was untrue. When I interrupted the applicant and pointed this out, he indicated that he did not understand what he was reading to me, and did not seek to continue.
The applicant has been unable to raise any ground of jurisdictional error which might allow me to set aside the Tribunal decision, and for the above reasons I must dismiss his application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 20 June 2005