SZDYU v Minister for Immigration
[2005] FMCA 1001
•27 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDYU v MINISTER FOR IMMIGRATION | [2005] FMCA 1001 |
| MIGRATION – Review of Refugee Review Tribunal decision – failure to attend Tribunal hearing – no amended application – application not identify legal errors – privative clause decision – application dismissed. |
| Migration Act 1958 (Cth), s.426A |
| S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZDYU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2003 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 27 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2005 |
REPRESENTATION
| Advocate for the Applicant: | Self-represented |
| Advocate for the Applicant: | Ms Koya |
| Solicitors for the Respondent: | Phillips Fox Lawyers |
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 $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2003 of 2004
| SZDYU |
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 made on 18 May 2004 and handed down on 8 June 2004.
The applicant is a citizen of the People's Republic of China who arrived in Australia on 29 December 2003. On 27 January 2004 he applied for a protection visa. This application was refused by a delegate of the Minister on 4 February 2004. On 9 March 2004 the applicant lodged an appeal with the Tribunal.
On 14 April 2004 the Tribunal forwarded a letter to the applicant addressed to his mailing address and copied to his street address advising that it was unable to make a decision in his favour on the information it had before it and inviting him to a hearing on 18 May 2004. The applicant did not attend the hearing. The Tribunal affirmed the decision of the Minister's delegate on 18 May 2004 and handed down its decision on 8 June 2004.
Claims before the department and the tribunal
The applicant claimed he is a Falun Gong practitioner from Shenyang in the Liaoning province. He began to practice in May 1995. In April 2001 he travelled to Beijing to "validate Falun Dafa". He was detained in a detention centre in Beijing for a month. He said that he was returned to his home in May 2001 by his work unit.
In August 2002 the local director of the Public Security Bureau and more than ten others broke into his house, detaining him for ten days at the Bureau. In December 2002 he was sent to the Shenyang Detention Centre. In detention he shouted to the police about Falun Gong and they choked, beat and kicked him. He claimed he was also brainwashed. The police did not allow him to speak with other Falun Gong members or to sit in a meditation position. The applicant said that he was monitored day and night. He went on a hunger strike, which after nine days scared the police. They requested paperwork from his family and released him on bail for medical treatment. He left detention in May 2003.
He believed that he would be jailed if he continued to practice Falun Gong. Therefore he paid RMB150,000 for a passport and an Australian visa.
The applicant’s claims are set out at Court Book 26 and 27 attached to his application for a protection visa. They are in the main repeated at Court Book 45 attached to his application to the Tribunal.
Tribunal consideration
The Tribunal invited the applicant to a hearing on 18 May 2004, but received no response from him and the letter was returned unclaimed. The Tribunal therefore proceeded to make a decision without taking any further action to allow the applicant to appear before it. It summarised his claims at Court Book 59 and then gave brief findings and reasons at Court Book 60 and 61:
The applicant has failed to substantiate his claims and without more I am unable to accept that they are genuine. I note that he has stated that he did not experience any difficulties in obtaining a travel document, and concur with the finding of the delegate on the evidence at CX72393, DFAT, CIR No. 12/03 of 15 January 2003 Passport and exit procedures, that his ability to obtain a passport and to depart from the PRC legally indicates that he was of no interest to the PRC authorities for any Convention-related reason at the time of his departure, and have no indication that this situation has changed in the interim. His application also states that he lived at the same address and worked in the same position for ten years before his departure, which does not accord with his claims.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well‑founded fear of persecution within the meaning of the Convention.
Consideration
The application filed on 30 June 2004 contains no viable grounds of review. Page one of the application under the heading “The applicant claims” states:
1.The decision made by R.R.T. interferes my right to remain in Australia.
2.An order that Dr Pamela Gutman not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter.
3. Such further orders as the court thinks fit.
On page two the sole ground of the application is:
I was persecuted and arrested in my original country – P.R. China because I am a member of Falun Gong – a particular social group in China. I face a risk of being jialed if I come back to China.
On 5 October 2004 at the first court date attended by the applicant in person, Registrar McIllhatton ordered by consent that:
3.The applicant file and serve an amended application giving complete particulars of each ground of review relied upon by 30 November 2004.
No such amended application has been filed. In his very brief submissions today the applicant has not provided any further grounds suggesting legal error.
Two matters were raised today. First the applicant did not have the Court Book with him. Ms Koya for the Minister handed up a copy of a letter dated 1 October 2004 which indicated that the Court Book had been served on the applicant's address for service. The applicant conceded after examining the Court Book that he had seen it before and had probably received it. It was certainly sent to the correct address.
Nevertheless, in view of the applicant’s concern that he did not have the Court Book I specifically asked whether he had any objection to me proceeding this morning. He had none.
The second matter was the applicant’s failure to attend the Tribunal hearing on 18 May 2004, to which he was invited by letter of 14 April 2004. This letter was sent to the two addresses that the applicant had provided to the Tribunal. The applicant acknowledged receipt of the letter. He said he did not attend the hearing because he was unwell at the time and thought that he would receive another invitation, but none arrived.
The applicant said he did not understand English and did not know how to respond to the invitation. The invitation stated, though in English, that if the applicant did not attend the hearing the Tribunal could make a decision on his case without further notice. It did so and proceeded to make a decision without inviting the applicant to appear before it, relying on s.426A of the Migration Act 1958 (the Act).
Did the Tribunal make any legal error in doing so? The applicant was not able to point to any legal errors and, understandably, told me that he had no understanding of Australian law.
The Full Federal Court in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 in dealing with a situation where an applicant did not attend a hearing said at [26]:
In our view, the appellant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about his claims and to put forward the documents upon which he relied. He cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity.
In the present matter the Tribunal was unable to be satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention. It therefore rejected his claim. This it was bound to do. Referring to s.65(1) of the Act the Full Federal Court said in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225, at [15]:
It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.
The following passage from the Full Federal Court NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] is particularly apposite:
In its reasons for decision, the RRT said that in view of the first appellant's failure to attend the hearing, the RRT was unable to satisfy itself the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister's delegate to refuse to grant to the first appellant a protection visa.
In the current case the Tribunal was also bound to refuse a protection visa.
The only other matters raised by the applicant in court were assertions that he practised Falun Gong in China, that he had been prosecuted because of it and that he was entitled to be a refugee. I pointed out that these involved a challenge to the findings of fact made by the Tribunal. The applicant was inviting the Court to take a different view of the various facts from that of the Tribunal, something it had no power to do.
As the Full Federal Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]:
To engage in fact-finding about the merits of the appellants’ case is no function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act… Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
Conclusions
The application filed on 30 June 2004 is deficient in that it does not identify anything about the decision of the Tribunal or the proceedings before it which would assist the Court in determining whether the Tribunal made any reviewable legal error. On a number of occasions today I asked the applicant to put to me anything that might assist in identifying a legal error. But apart from reiterating his dispute with the findings of fact made by the Tribunal and its conclusions, he was unable to expand upon his application.
Ms Koya for the Minister submitted the application must be dismissed as no reviewable error had been disclosed. I agree.
It is apparent that the Tribunal was unable to find in favour of the applicant on the scant evidence it had. The applicant having been given an opportunity to attend a hearing failed to do so. As a consequence, the Tribunal found that he had failed to substantiate his claims and without more, was unable to accept that they were genuine. On the material before it the findings of the Tribunal were clearly open to it. I am not satisfied that the Tribunal made any legal error going to jurisdiction.
I therefore find that the decision is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (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 Act and to the powers conferred on the Tribunal.
In the circumstances the application must be dismissed.
I certify that the preceding twenty-eight paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Helen Athanasiadis
Date: 14 September 2005
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