SZDWC v Minister for Immigration
[2005] FMCA 656
•27 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDWC v MINISTER FOR IMMIGRATION | [2005] FMCA 656 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Falun Gong – citizen of China – no error of law – application dismissed. |
| Migration Act 1958 (Cth) |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZDWC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1866 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 27 April 2005 |
| Date of Last Submission: | 27 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2005 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr McInerney |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed;
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,150.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1866 of 2004
| SZDWC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 29 April 2004 and handed down on
20 May 2004.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 9 January 2004. On 15 January 2004 he lodged an application for a protection visa which was refused by a delegate of the Minister on 23 January 2004. The applicant applied for review of that decision in the Tribunal on 16 February 2004.
On 23 March 2004 the Tribunal wrote to the applicant in the following terms:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
Hearing of the Tribunal
We now invite you … to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.
The Tribunal then set out the date of Friday 23 April 2004 for the hearing. It made the important point:
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.
On 15 April 2004 the Tribunal received a response signed by the applicant which indicated he did not wish to come to a hearing. He effectively consented to the Tribunal proceeding to make a decision on review without taking any further action to allow or enable him to appear before it.
Consequently, as I have stated, the Tribunal made its decision on
29 April 2004 and handed it down on 20 May 2004. It affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.
Claims before the Department and the Tribunal
The applicant’s claims to the Department are set out in the statement at Court Book pages 24 and 25, and his claims to the Tribunal are set out in his application to the Tribunal reproduced at Court Book page 45. As the applicant declined an invitation to the hearing this represents the totality of the claims put to the decision-maker.
The applicant claims he has a well-founded fear of persecution as a practitioner of Falun Gong.He was introduced to Falun Gong by a friend and has practised it since 1997. He says that in July 1999 the Chinese Government began to suppress the practise of Falun Gong. By then he had become an organiser of Falun Gong activities in his local area.
On 25 November 2001 he was arrested at his home when other Falun Gong practitioners were with him. The applicant claims he was sentenced to one year “Re-education through labor”. While imprisoned he was beaten, kicked and forced to renounce Falun Gong practices, through “every tough means”.
He was released from prison in November 2002 (although I note at the hearing he said he was released in October 2002) and was required to report to the local police on a weekly basis. He says he borrowed a large amount of money in order to bribe a government official to obtain a passport. He says in his application to the Tribunal at Court Book page 45:
I am a good citizen. I never did anything bad and illegal. I should not suffer persecution only because I have my own religion. That’s why I seek protection from Australian Government.
Tribunal consideration
In view of the lack of detail contained in the protection visa application and the review application, the Tribunal was unable to be satisfied that the applicant was a Falun Gong practitioner or that he would seek to practise Falun Gong if he returned to China. It was therefore not satisfied that he had a well-founded fear of persecution.
It concluded at Court Book page 62:
In view of the lack of detail contained in the protection visa application and the review application, I cannot be satisfied that the Applicant is a Falun Gong practitioner, or that he would seek to practice Falun Gong if he returned to China. Accordingly, I am not satisfied that the Applicant was detained or otherwise persecuted as a Falun Gong practitioner or that he would have a well founded fear of persecution for this reason should he return to the PRC.
As I cannot accept the Applicant’s claims on the facts, I cannot be satisfied that he has a well founded fear of persecution for a Convention reason.
Consideration
On 17 June 2004 the applicant sought judicial review in this Court. The grounds for review are as follows:
1. I belong to a particular social group - Falun Gong;
2. I fear of persecution for the reason as above, in my original country - China;
3. I believe that my fear of persecution is well-founded.
None of these three grounds provides a viable legal basis for asserting jurisdictional error by the Tribunal in its decision.
At a directions hearing before Registrar McIllhatton on 23 September 2004 the applicant consented to orders requiring him to file an amended application setting out in full the grounds relied upon on or before 24 November 2004. He has not complied with those orders.
At the hearing I gave the applicant the opportunity to identify to the Court any basis on which the Tribunal fell into legal error. He expressly said that he could not point to any legal errors. He repeated the factual claims and assertions that he made before the Department and the Tribunal.
I have read the Tribunal decision closely and it is clear the Tribunal understood the task it had to perform. Notwithstanding the inadequate material with which it had to work it carried out its task according to law. The Tribunal was faced with inadequate material provided by the applicant which inadequacy was compounded by the failure of the applicant to attend the hearing as requested by the Tribunal.
The applicant was put on notice by the Tribunal’s invitation that it was unable to make a decision in his favour on the information that he had provided to date. This of course followed the rejection of his claims by the delegate. The applicant cannot complain about the Tribunal’s findings having declined the invitation to attend the hearing before it. At the hearing he would have been able to present further evidence and to clarify his claims, as well as to attempt to meet any concerns the Tribunal member had.
It is not for the Tribunal to make out an applicant’s case. As was said by Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether the claim is made out.
Furthermore, although the Tribunal has certain powers to obtain additional evidence “the Act does not impose any duty or obligation to do so … Thus, the Tribunal is under no duty to inquire” (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ).
Conclusion
The application before this Court is deficient in that it does not point to anything in relation to the decision of the Tribunal or the proceedings before it which would assist the Court in determining whether there was any reviewable legal error. As I have noted I invited the applicant on a number of occasions at the hearing to put to me anything that might assist me to identify a legal error. But apart from reiterating the assertions of fact he made before the Department and the Tribunal he was unable to assist me.
Counsel for the Minister has submitted that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is clear the Tribunal was unable to reach a favourable decision because of the unsatisfactory and inadequate material placed before it by the applicant.
The conclusions reached by the Tribunal were reasonably open to it on the material sparse though it was that it had before it. I am not satisfied that the Tribunal made any legal error going to jurisdiction in coming to its decision.
I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Migration Act 1958 (Cth) and to the powers conferred on the Tribunal.
In the circumstances I must dismiss the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate:
Date: 14 June 2005
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