SZECM v Minister for Immigration
[2004] FMCA 1047
•10 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZECM v MINISTER FOR IMMIGRATION | [2004] FMCA 1047 |
| MIGRATION – Review of Refugee Review Tribunal decision – Falun Gong – failure to attend a hearing – no error of law – privative clause decision – application dismissed. Migration Act 1958 (Cth) Abebev Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZECM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2434 of 2004 |
| Delivered on: | 10 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 10 December 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Christos Mantziaris |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 30 July 2004 be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2434 of 2004
| SZECM |
Applicant
And
| MINISTER FOR IMMIGRATION |
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 2 June 2004 and handed down on
24 June 2004.
The applicant, who is a citizen of China, arrived in Australia on the first occasion on a visitor visa on 22 January 2004. He left Australia, apparently returned to China and then arrived back in Australia on
5 February 2004.
He made an application for a protection visa on 13 February 2004 which application was refused by a delegate of the Minister on
8 March 2004.
On 13 April 2004 he requested that the Tribunal review the decision.
He was invited to attend a hearing, which was held eventually on
2 June 2004 but he failed to respond to the invitation and did not attend.
The Tribunal affirmed the decision of the Minister’s delegate on 2 June 2004 and that decision was handed down on 29 June 2004.
Claims before the Department and the Tribunal
The applicant’s claims before the Department and Tribunal centred upon his association with the Falun Gong Movement, the Convention ground being one of religion and/or imputed political opinion.
The applicant said he distributed materials to the public to demonstrate the true nature of Falun Gong and to protest against the government regulations in relation to Falun Gong. For these acts of protest he says he was sentenced to prison.
He alleges that in May 2001 he was jailed in a labour camp in Tianjin City for six months. He says he refused to do certain things in the labour camp because of his beliefs and was punished by beatings. He was released in November 2001.
His claims are set out more fully in the Court Book at pages 25 to 26 and 48.
The Tribunal’s decision
As I have already indicated, the applicant was invited to appear before the Tribunal at a hearing on 2 June 2004, but he failed to respond to the invitation and did not attend.
The Tribunal’s decision is accurately summarised in the respondent’s submissions at paragraphs 10 to 12 which I quote:
10.The Tribunal was clearly concerned about the vague and unsubstantiated nature of the claims made by the Applicant in circumstances where he had not attended the hearing to explain them. It was concerned about his apparent ease in travelling in and out of the PRC in early 2004.
11.The Tribunal made the following findings –
(a) That the applicant was a Buddhist and that he lived and worked where he claimed.
(b) That the applicant departed from the PRC and had no difficulty in obtaining documents to travel.
(c) That the applicant returned voluntarily to the PRC and was not arrested upon return, but was allowed to leave again.
(d) That the applicant was not an adherent of Falun Gong, nor was he jailed for that or any other reason in 2001.
(e) That some of the claims in the written statements which accompanied the applicant’s primary application clash markedly with the claims that appear in the applicant’s primary application form.
(f) That the applicant’s silence in the matter arises from a lack of sincere interest in the substantive content of his protection visa application.
12.The Tribunal was unable to be satisfied from the evidence before it that the applicant has a well-founded fear of persecution. The Tribunal found that the applicant is not a person who satisfies the criterion set out in section 36(2) of the Migration Act 1958(Cth).
The applicant’s case
No proper grounds are set out in the application of 30 July 2004. It is apparent from this application, as indeed it was from the hearing, that what the applicant is doing is inviting the Court to engage in merits review. The grounds in the application are:
1.I really fear the persecution from my original country – PR China.
2.I face a risk of being jailed because I belong to a particular social group, Falun Gong.
The applicant was required by orders of this Court of 30 August 2004 to file an amended application with full particulars by 29 October 2004. He has not done so.
At the hearing, when invited by the Court, the applicant was unable to present any submissions which set out any legal errors in either the Tribunal’s decision or the procedures or processes engaged in by the Tribunal. He instead complained that the Tribunal “overly relied on migration regulations”.
The applicant said that he had complied with the Migration Act 1958 (Cth) (the Act) criteria. He then proceeded to raise some factual issues disputing the findings made by the Tribunal. In particular he reasserted that he was involved in Falun Gong and would be persecuted if he returned.
Consideration
The respondent has submitted that there is no jurisdictional error in the decision of the Tribunal. The Tribunal affirmed the delegate’s decision because it did not accept the factual claims made in the applicant’s statement concerning his adherence to Falun Gong and that he was jailed. Such findings of fact were, the respondent says, clearly open to the Tribunal. The respondent emphasised that despite an invitation by the Tribunal the applicant failed to attend a hearing.
The Tribunal was entitled to proceed with the hearing without taking any further action to allow or enable the applicant to appear before it in accordance with section 426A of the Act. Furthermore, the respondent says that the Tribunal was under no duty to make further inquiries to make out the applicant’s case for him. That is the role of an applicant. There was no breach of the natural justice hearing rule the application of which is limited by section 422B of the Act.
The respondent submits that the Tribunal discharged its duty to satisfy itself that the visa criteria were or were not established.
I accept the submissions made by the respondent for the reasons which are set out in those submissions which I have summarised above. Clearly the applicant:
i)misconceives the role of this Court, and
ii)has therefore asked the Court to engage in merits review.
As I indicated at the hearing, this is not something that the Court can do. The Court’s role is limited to establishing whether or not the Tribunal made any error of law.
Conclusion
The application is deficient in that it does not identify anything in relation to the decision of the Tribunal or its proceedings which assists the Court in determining whether there was any reviewable legal error.
I invited the applicant this morning to put to me anything that might assist in identifying a legal error. But apart from asserting that the Tribunal overly relied on migration regulations and disputing some findings of fact made by the Tribunal, he was not able to assist me.
Mr Mantziaris, for the Minister, has submitted that the application must be dismissed as no reviewable legal error has been disclosed. I agree.
It is apparent that the Tribunal formed an adverse view about the credibility of the claims made by the applicant, which it described as “bare” and “unsupported”. As the applicant is unrepresented I have carefully read the Tribunal’s decision. I could discern no legal errors; certainly none that go to jurisdiction.
It is not for the Tribunal to make out the applicant’s case (Abebev Commonwealth (1999) 197 CLR 510). The findings made by the Tribunal were reasonably open to it on the material before it. I am satisfied that the Tribunal made no 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 Act and related to the powers conferred on the Tribunal.
In the circumstances the application must be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 7 February 2005
0