SZDRS v Minister for Immigration - [2004] FMCA 1040

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDRS v MINISTER FOR IMMIGRATION

[2004] FMCA 1040

MIGRATION – RRT – Chinese Falun Gong practitioner – forgot to attend tribunal hearing – no legal error in Tribunal’s decision.

Migration Act1958 (Cth), ss.417, 425A, 426A, 441A(iv), 441C(iv), 448B, 483A.

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

Applicant:

SZDRS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1596 of 2004

Delivered on:

22 December 2004

Delivered at:

Sydney

Hearing date:

22 December 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr J.A.C. Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent's costs in the sum of $3750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1596 of 2004

SZDRS

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 Act1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 31 March 2004 and handed down on 27 April 2004. The Tribunal affirmed a decision of the delegate refusing an application by the applicant for a protection visa.
As has been explained to the applicant, the Court's jurisdiction is to conduct a judicial review of the administrative decision of the Tribunal and, by reason of Part 8 of the Act as interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the Court does not have power to set aside the Tribunal decision and order a rehearing unless it is satisfied that the Tribunal made a serious legal error which can be characterised as a jurisdictional error.
The applicant arrived in Australia in September 2003 on a business visa and made an application for protection on 7 October 2003. In his application he attached a brief statement of his claims. He said he had “experienced a terrible ordeal in my original country as a genuine Falun Dafa practitioner”. He said that following the outlawing of that group in 1999 he was “illegally detained at the XXX Forced Labor Camp many times for appealing on behalf of Falun Dafa”. He continued:
In October 2002, Division Three of the forced labour camp illegally imprisoned the Dafa practitioners (including me) who were sent to the forced labour camp for a second time. I resisted the persecution, so everyday I was put into solitary compartments. I went on a hunger strike, never yielding to the persecution. In order to strictly control me, the labour camp head XX often abuses me under various excuses. I was handcuffed to a bed pole day and night, because I refused to put on ID cards worn by criminals and labour camp uniforms. In December, I was sent into solitary compartments and brutally beaten by Team Leader ZZ for refusing to answer roll call. I and other two Dafa practitioners HH, GG held a group hunger strike, and Team Leader ZZ tortured us mercilessly. Since we were extremely weak after the hunger strike, we could not sit up, so we laid on the ground on top of our own clothes. ZZ forcefully took away my clothes and forced me to lie on the bare, icy-cold ground. The guards also force-fed me with an unknown drug which caused me to vomit violently. I was released on 15 March 2003 because they thought that I might die. My parents sent to me to hospital and I recovered two months later.
I know if I still live in my city I would face further punishment from the government. Thus I sold all of my belongings to raise 200,000 RMB in order to bribe a powerful government official to issue a passport, and apply a visitor visa to Australia.

I understand that Australia has signed the 1951 UN Convention relation to the Status of refugees. I hope my case could be considered seriously.
Thank you very much for your time and consideration.
Following the refusal of the visa by the delegate the applicant filed an application for review by the Tribunal which attached a typed statement which added nothing additional to his original statement.
The Tribunal wrote on 3 December 2003 to the applicant at the post box which he had given to the Tribunal as his address for service by mail. Its letter explained that the Tribunal would review the file and might invite him to a hearing.
On 16 February 2004 the Tribunal sent by registered post a letter to his stated mailing address, and also to his stated home address at Campsie. The letter invited him to attend a hearing on 30 March 2004 to give oral evidence and present arguments in support of his claims. On the material before the Court I am satisfied that that letter was duly sent pursuant to the provisions of s.425A, s.441A(4), s.441C(4) and reg 4.35D, and that it provided a lawful foundation for the Tribunal to proceed under s.426A in the event that the applicant did not appear at the hearing. Section 426A(1) then permits the Tribunal to make a decision on a review without taking any further action to allow or enable the applicant to appear before it.
A Tribunal checklist in the papers before the Court indicates that the invitation sent to the applicant’s mailing address was not returned to the Tribunal, but that the copy sent to his home address was returned unclaimed. The checklist notes that the applicant had not advised the Tribunal of an adviser to receive mail, and had given no phone number by which the Tribunal could contact him.
In those circumstances the Tribunal, as it indicates in its reasons, decided to proceed under s.426A and decide the application without further inquiry. The Tribunal unsurprisingly considered that its inability to obtain further details from the applicant meant that it could not be satisfied that he had a well-founded fear of persecution for a reason defined in the Refugees' Convention. Its reasoning in this respect was as follows:
I have seen a photocopy of the applicant’s passport on the Department file and accept he is a national of the PRC as claimed. However, the applicant provided insufficient detail in his application for a protection visa to satisfy me he was owed protection obligations in Australia. For instance, he claimed to have been detained ‘many times for appealing on behalf of Falun Dafa’ but failed to provide much if any detail as to the reasons for these alleged ‘appeals’, where and when the appeals were conducted, and who was appealed to. Based on his mere written assertion, I am not satisfied he ‘appealed on behalf of Falun Gong’, or that he was detained, as he claimed.
Neither did the applicant’s written evidence satisfy me he knew much, if anything, about the practice, theory and/or suppression of Falun Gong in the PRC, that might satisfy me he was a Falun Gong practitioner as claimed. Based on the evidence currently before me, I am not satisfied the applicant is a sincere and genuine Falun Gong practitioner, nor that he was even a mere practitioner. Neither am I satisfied he may have been imputed with such practice in the PRC in the past eg, for allegedly ‘appealing on behalf of Falun Gong’, nor that he may be imputed as a Falun Gong practitioner should he return to the PRC. Accordingly, I do not accept the applicant has a well-founded fear of persecution arising from his alleged practice of Falun Gong in the PRC.
The applicant did not claim, nor do I find on the available evidence, he had a well founded fear of persecution for any other reason should he return to the PRC.
Accordingly, I do not accept the applicant would have a well founded fear of persecution for a Convention reason should he return to the PRC.
The applicant filed an application in this Court unaided by legal assistance and he has appeared before me today without such assistance. His application to the Court does not identify any proper ground for judicial review. It says “there was no other material or evidence to justify the making of the decision”. But that claim is plainly without substance. It also affirms his fear of persecution.
Today at the hearing the applicant was assisted by an interpreter and made a statement giving more detail of his treatment in China, including a description of several episodes in forced labour camps where he had been mistreated after protesting at his treatment. He made his statement with emotion and, although it is not the function of the Court to decide his veracity, nothing he has said causes me to disbelieve him.
However, as has been explained to him, it is not the function of the Court to decide if he is a refugee or should be given a protection visa. Under Australian law the function of making those decisions is given to the Minister for Immigration, her officers and the Refugee Review Tribunal. The function of the Court is to examine whether they have followed the legal rules governing their decision-making. In the absence of error the Court cannot order them to make any fresh or further decisions.
At the end of his statement the applicant honestly admitted that he did not attend the hearing before the Tribunal because he made a mistake as to the time when the hearing was appointed, and that he remembered the appointment when it was too late. He said that it was his mistake, but that because he had forgotten, the Tribunal should give him another opportunity. Unfortunately, the Migration Act does not allow the Tribunal to give him that further opportunity and does not allow the Court to order it.
I have explained to the applicant that his only avenues are to seek the personal intervention of the Minister by making a submission under s.417 or s.48B. I have told him that it would be in his interests to make that application as soon as possible, and with as much detail and corroboration as possible. I have advised him that the Court is unable to provide him with further assistance in his endeavours to gain protection from Australia.
For the above reasons I must dismiss his present application to this Court.
RECORDED : NOT TRANSCRIBED
I shall order the applicant to pay the respondent's costs in the sum of $3750.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 18 January 2005