SZDZP v Minister for Immigration
[2005] FMCA 1244
•19 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDZP v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1244 |
| MIGRATION – RRT – Chinese person claiming persecution as Falun Gong practitioner – did not attend Tribunal hearing – no error found. |
| Migration Act 1958 (Cth), ss.414(a)(4), 426(A), 441(c), 441(G), 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZDZP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2215 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 19 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms D Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Orders 2 and 3 made at 10.35am on 19 August 2005 are set aside.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2215 of 2004
| SZDZP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 21 June 2004 and handed down on 29 June 2004. The Tribunal affirmed a decision made by 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”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth), but is subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations on my powers have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's claims should be believed nor whether she qualifies for a refugee visa.
The present applicant arrived in Australia in March 2004 on a two week temporary business visa. An application by her for a protection visa was lodged on 5 April 2004. The application gave her home address as a home unit in Cabramatta and a postal address which was that of a migrant agent, Mr Wu. The application was accompanied by an authorisation of Mr Wu to act on behalf of the applicant. There is nothing before me to indicate that it was improperly prepared.
The application was accompanied by a typed statement indicating the reasons why the applicant claimed protection from Australia. She claimed that her family “have experienced different political movements in China”. She referred to her grandfather being imprisoned in 1957 because of “political opinions against the Government”, and to her father being persecuted during the Cultural Revolution. She said:
I took part in the memorial activities for the “Tianamen Square Massacre” against the Peoples Republic of China and to support the independents of Tibet. We expressed our support for the Tibetans and our political opinions against the government of the People’s Republic of China. I was also a key member of “Falungong” when I was in China. I left China, because I had different political opinions with the Chinese government and the fact I was a key member of Falungong. The sufferings of my family members during the “Anti-Rightest Movement” and the political system in China, the “One Child Policy”, the “Cultural Revolution”, the cracking down of Falungong are all the factors which made me leave China for a country with freedom and democratic systems.
The only specific information about her activities was:
Just before I came to Australia, local police came to my home to search for evidence of my involvement with “Falungong”, I believe that the suffering my father and my grandfather would happen to me very soon, so I came to Australia for protection.
The application was refused by a delegate on 8 April 2004, and the delegate's reasons were sent to the applicant's agent and to the applicant at the agent's address. In his reasons, the delegate referred to the absence of supporting evidence to substantiate the applicant's claims. The delegate said:
She provides no details such as names, dates, times or places in respect to her particular activities within the above named movements which may have brought her to the adverse attention of Chinese authorities.
The delegate was not satisfied that the applicant had a well-founded fear of persecution.
An application for review was lodged on 11 May 2004. The form is signed by the applicant, and she has identified her signature today. The form appointed Mr Wu as the person to receive correspondence and to act on her behalf in relation to the case. It gave her home address at Cabramatta and the address of Mr Wu as her mailing address. It provided no further details of the applicant’s claims nor any supporting evidence.
A letter dated 21 May 2004 was sent addressed to the applicant at both of those addresses, and a copy was also addressed to Mr Wu. It told the applicant that 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.
The letter said:
We now invite you … to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims.
The letter told the applicant:
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.
The letter appointed Monday 21 June 2004 at 9 a.m. for the hearing.
I am satisfied that the letter was posted in circumstances satisfying the requirements of s.441A(4) and reg 4.35D so as to allow the effect of s.441C to come into play. This deemed the applicant to have received the letter within sufficient time to give rise to the power of the Tribunal under s.426(A) to “make a decision on the review without taking any further action to allow or enable the applicant to appear before it” if the applicant did not appear at the appointed hearing. By reason of s.441G the Tribunal also had that power by reason that the letters were also sent to the applicant's agent.
It is clear that the invitation did come to the attention of the agent, and nothing the applicant has said to me today suggests to me that she also did not receive actual notice of the hearing. On 1 June 2004, Mr Wu sent a 'Response to Hearing invitation' form to the Tribunal indicating that the applicant did want to attend the hearing. However on 18 June 2004 Mr Wu sent a further letter to the Tribunal saying:
This is to notify you that (the names and file references for the applicant and another applicant) are not going to attend their interview as scheduled.
The applicant has presented no evidence, and has made no submissions to me, to suggest that this letter was not sent on authority and pursuant to her instructions. In fact, the applicant did not attend at that hearing at the appointed time.
In its statement of reasons published after that date, the Tribunal said:
In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make it's decision on the review without taking any further action to enable the applicant to appear before it.
As I have indicated above, in my opinion, the Tribunal was as a matter of law entitled to proceed in that way, and I can find no error vitiating its exercise of discretion.
The Tribunal's reasoning about the applicant's claims was:
In this case, the Tribunal accepts that the Applicant is a citizen of the People’s Republic of China (PRC) as claimed and as supported by a copy of her passport. The Applicant claims to fear persecution if she returns to China because of her different political opinions and because she was a key member of Falun Gong. However the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention. This is because the Tribunal finds the Applicant’s claims vague and lacking in useful detail. For example, although the Applicant claimed to be a key member of Falun Gong she provided no details at all about her Falun Gong activities and no useful detail about her claims that local police searched her home just before she came to Australia. Even though the delegate commented unfavourably on the lack of detail in her claims the Applicant provided no further information when she sought review. The Applicant claimed to have different political opinions and she claimed that she participated in Tiananmen Square memorial activities, supported Tibetan independence and has some public involvement in the fight for freedom and democracy but there is no useful detail whatsoever about her actual activities, nor does her evidence suggest that these activities brought her to the adverse attention of the authorities. As the Applicant has not attended the hearing the Tribunal has been unable to test any of her claims or ascertain how she was able to obtain an Australian business visa in March 2004 when she has not been employed since sometime in 2003. 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.
This reasoning makes it clear that the Tribunal's reasons for affirming the delegate's decision were that it was unable to be satisfied on the evidence that was before it that the applicant in truth had a
well-founded fear of persecution due to the absence of details in the statement she originally presented and her failure to attend the hearing to give more details.
I can find no error of law in the Tribunal's reasoning, and in my view it was not affected by any jurisdictional error. I therefore do not have power to send the case back to the Tribunal.
The applicant has filed three documents, which make a complaint:
The Tribunal had bias against me when considering my application.
The documents, in effect, argue that the Tribunal must have had bias because it came to an adverse decision. However, this argument cannot succeed. As I have indicated, the Tribunal's reasons show a logical and a proper approach to the evidence that was before the Tribunal. It certainly gives rise to no apprehension of bias.
There is also criticism of the Tribunal because it:
Just refused my application by repeating the statements from DIMIA.
This suggests that the Tribunal did not apply it's independent mind to the applicant's claims. However I do not accept this argument. I think it plain that the Tribunal did form it's own judgment about the applicant's case. I do not consider that the applicant’s documents have made out any ground for setting aside the Tribunal's decision.
The applicant today appeared long after the appointed time, and after I had dismissed her application for non-attendance. The applicant explained that she had gone to the wrong level in this, or another, building. Fortunately the Court was able to reconvene, find another interpreter, and recall the Minister’s solicitor. I set aside the default order, and the applicant has had a full opportunity today to make her submissions. I have dealt with her submissions above.
Since I have not been able to find any jurisdictional error affecting the Tribunal’s decision, it is a privative clause decision for which relief is precluded by s.474(1) of the Migration Act. I must dismiss the application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 1 September 2005
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