SZDLJ v Minister for Immigration - [2004] FMCA 726

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDLJ v MINISTER FOR IMMIGRATION

[2004] FMCA 726

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no appearance – dismissal of application.

Migration Act 1958 (Cth)

Federal Magistrates Court Rules 2001

Applicant:

SZDLJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1273 of 2004

Delivered on:

25 October 2004

Delivered at:

Sydney

Hearing date:

25 October 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

No appearance by or on behalf of the applicant.

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application be dismissed.
That the applicant pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1273 of 2004

SZDLJ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 6 April 2004 affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.
I have received written submissions from Mr J Smith of Counsel that have been of assistance to me.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 25 December 2002 and applied for a protection visa on 22 January 2003. He claimed that he had been beaten and imprisoned because of his belief in Falun Gong.
On 19 March 2003 a delegate of the Minister made a decision refusing to grant the applicant a visa and on 15 April 2003 the applicant applied to the Tribunal for a review of that decision. On 20 November 2003 the applicant attended a hearing conducted by the Tribunal and gave evidence in support of his claim. He claimed, in addition to the claims in his visa application, that he had been sacked for using his employer’s hall for Falun Gong training without permission, and that he had been brainwashed for four months.
The Tribunal did not accept any of the applicant’s claims. In particular, it did not accept that he was a leader of the Falun Gong movement and that he was even an active member. The reasons for these findings were that, at the hearing, the applicant had been asked to perform some of the Falun Gong exercises and had been unable to do so to the satisfaction of the Tribunal. In addition, the Tribunal found that the applicant had only a passing knowledge of Falun Gong. In light of these findings, the Tribunal rejected the claims that the applicant had been persecuted in China.
Finally, the Tribunal noted that, despite being asked to provide evidence of his identity and association with Falun Gong, the applicant failed to do so.
For these reasons, the Tribunal concluded that the applicant was not a person to whom Australia has protection obligations and so affirmed the decision under review. The Tribunal’s decision clearly turned on its assessment of the applicant’s credit. As such, there are no grounds for review apparent in the reasons for that decision.
On 20 November 2003, the date of the Tribunal hearing, the Tribunal wrote to the applicant requesting the following:
a)An original copy of the applicant’s ID card (in the applicant’s real name); and
b)A letter from Falun Dafa Association in Sydney confirming that the applicant was a senior Falun Gong officer in the Hebei Province and since his arrival in Australia the applicant has continued active association with the Falun Gong movement.
The letter required the information to be provided by 15 December 2003 and stated:
“IF YOU DO NOT PROVIDE THE ADDITIONAL INFORMATION BY 15 DECEMBER 2003 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.”
The Tribunal, as noted above, stated that, as at 15 March 2004, the applicant had not provided the information as requested.
The applicant claims that he did send the information and that there was unfairness involved because of this. However, he had not adduced any evidence to suggest either that he sent the material or that the Tribunal received it. The only available finding is that he did not send the material. In these circumstances, there could not possibly have been any unfairness visited upon the applicant.
The applicant appeared before this Court on 11 August 2004 and consented and signed Short Minutes of Order. Order 2 of those Short Minutes of Order stated:
“The applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in this application to the Court and any evidence upon which the applicant proposes to rely on 7 October 2004.”
On 13 September 2004 my associate wrote to the applicant in the following terms:
“We refer to your appearance at the Federal Court on 11 August 2004 and we acknowledge receipt of your undated handwritten letter (copy enclosed).
We enclose a copy of a letter addressed to you from the Federal Court Registry in respect of your participation in the Refugee Review Tribunal (RRT) Legal Advice Scheme (NSW). This letter appears to have been incorrectly addressed and was returned to the Registry.
… it is recommended that you make contact with … to obtain legal advice in respect of your matter and in particular whether you have valid grounds for seeking a later hearing date.”
The Registry of this Court received an undated letter from the applicant on 5 October 2004, which stated:
“As before, I gave a letter to you, saying that I have to get all the documents until February or March, 2005.
So, would you please give me more time to receive my documents from CHINA? If it is not permitted, please cancel my application.”
On 20 October 2004, the Solicitors acting for the Minister, wrote to the applicant noting:
“This matter is listed for hearing on 25 October 2004 at 2.15 p.m. before Federal Magistrate Lloyd-Jones at John Maddison Tower, 88 Goulburn Street, Sydney. You are required to attend on that occasion.”
The applicant did not file an amended application or any written submissions. He did not appear when the matter was called at the time appointed for hearing or when the matter was called again. No message was received from the applicant explaining his failure to appear. On the evidence before me, I am satisfied that the applicant has been on notice of the hearing and was given a proper opportunity to attend.
Despite the non-appearance of the applicant, I have considered the decision of the Tribunal and the grounds put forward to support the application for review. The applicant’s case does not appear to be a strong one, particularly in light of the only ground raised in the application is that the Tribunal was unfair because, although the applicant sent the Tribunal documents, it said that it never received them. This is taken to be a claim that the applicant was denied procedural fairness.
The only possible conclusion is however that the Tribunal did not receive the documents. This does not establish any unfairness in the Tribunal’s conduct of the proceedings. It complied with each of its obligations under Division 4 of Part 7 of the Act and there is otherwise no claim that the Tribunal misled the applicant or somehow prevented him from presenting his case. In those circumstances, the applicant has been afforded procedural fairness and this ground must fail.
As referred to in paragraph 13 above, the applicant indicated in his undated letter (received 5 October 2004) that it was his wish to “cancel my application”.
In all the circumstances it seems appropriate that in the absence of an appearance I should dismiss the applicant pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001, which is a dismissal in default of appearance of a party. The applicant does not lose any substantive rights by that dismissal. He is entitled to apply to the Court to vary or set aside the order if he wishes to do so. It is then a matter of discretion whether or not the Court will set aside the order.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 25 October 2004