SZEGD v Minister for Immigration
[2005] FMCA 243
•23 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGD v MINISTER FOR IMMIGRATION | [2005] FMCA 243 |
| MIGRATION – RRT decision – Falun Gong practitioner claiming detention and torture – did not attend Tribunal hearing – no error found. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425A, 441A(4), 441C(4), 483A, Part 8
Migration Regulations 1994 (Cth), reg. 4.35D
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
| Applicant: | SZEGD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2615 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 23 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the Respondent’s costs in the sum of $4000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2615 of 2004
| SZEGD |
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 Act 1958 (Cth) (“the Migration Act”) challenging a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 June 2004 and handed down on 20 July 2004. The Tribunal affirmed a decision of a delegate refusing 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 jurisdiction of the Federal Court in a matter such as the present is its judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 the Court has no power to set aside the Tribunal decision and to remit the case for rehearing unless it is satisfied that the Tribunal’s decision was affected by jurisdictional error.
The Court has no power itself to decide whether an applicant is a refugee, and the assessment of the factual claims made by an applicant is a matter for the Tribunal. I cannot send the case back to the Tribunal just because I have sympathy for the applicant and his predicament.
In the present case, the applicant arrived from China in March 2004 and soon lodged an application for a protection visa. In a short statement attached to the application he said he had “experienced a terrible ordeal in my original country as a genuine Falun Gong practitioner”. He said he had been illegally detained in August 2002, “extorted 5,000 Yuan by an officer”, and later detained for a month, during which he was put in shackles and handcuffs for practising Falun Gong exercises. He said in December 2002 he was again arrested, “extorted 2,000 Yuan by the police”, sent to a detention centre for another month, and then moved to another custody centre where he was detained for six months and was “badly hurt mentally, physically and financially”.
The applicant said that in August 2003 he was again arrested and “sent to a brainwashing class by the security guards” and was tortured when he went on hunger strike. He said: “I realized that I would be put into jail again if I still stay in P. R. China. I bribed a powerful police officer to help me come to Australia”.
The applicant’s application was refused by a delegate on 18 March 2004. The reasons given by the delegate are not clear, but seem to depend upon a view as to the ease with which the applicant left China and the fact that he had “submitted no evidence to support his claims to be at risk for his claimed Falun Gong affiliation”.
The applicant appealed to the Refugee Review Tribunal on 19 April 2004, providing a home address and a mailing address at a post office box at Haymarket. He attached a statement which gave no further details than he had originally given. It appears from the Tribunal’s reasons that he was sent a letter in the usual form acknowledging his application, and informing him that he might receive an invitation to a hearing where he would have the opportunity to give evidence in support.
By a letter dated 10 May 2004 sent by registered post to the two addresses indicated by the applicant, the Tribunal informed him that it “is unable to make a decision in your favour on this information alone”, being the information sent to it by the Department. The Tribunal told him: “We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims”. The applicant was told: “If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision in your case without further notice”. He was told that the date of the hearing was Friday, 11 June 2004 at 10 am.
The Tribunal in its reasons indicates that no response to the hearing invitation was received, and that its inquiries at the Department revealed no further address. It notes that it could not contact the applicant by telephone as he did not provide telephone contact details. The Tribunal says:
In accordance with Section 426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
In his application to this Court the applicant has not challenged the power of the Tribunal to proceed in that manner, nor how it has exercised its discretion to do so. On the material before me, I am satisfied that the Tribunal had power by reason of the satisfaction of the requirements of ss.425A, 441A(4), 441C(4) and reg.4.35D.
The applicant has today from the Bar table told me that his reason for not attending the Tribunal hearing was: “I forgot time and day to attend hearing”. I have no reason to disbelieve him.
In its reasons for affirming the delegate’s decision the Tribunal said:
The applicant has made a series of generalised claims that are lacking in important details. In particular, the applicant has not provided details relating to his Falun Gong practice. He has merely asserted that he is a Falun Gong practitioner. The applicant has not provided any corroborative evidence of the alleged arrests and detention. He has not attended a hearing and the Tribunal has no explanation for the applicant’s lack of attendance. The Tribunal is satisfied that the applicant has been given a proper opportunity to support his application both at the primary level as well as at the review stage.
Without further details, corroborative evidence and without having had the opportunity to explore the claims with the applicant at a hearing, the Tribunal cannot be satisfied that the applicant is a Falun Gong practitioner, nor can the Tribunal be satisfied that he has ever been arrested or detained or had suffered any harm. For the same reasons, the Tribunal cannot be satisfied that the applicant had to pay a bribe in order to come to Australia.
On the basis of the available information, the Tribunal cannot be satisfied that there is a real chance of Convention‑related harm occurring to the applicant in the reasonably foreseeable future. Therefore, the Tribunal cannot be satisfied that the applicant has a well–founded fear of persecution for a Convention related reason.
I can see no jurisdictional error in the procedures followed by the Tribunal nor in its reasoning set out above.
In his application to this Court, the applicant has set out three grounds for the application which repeat his claim to fear persecution, but do not identify any proper ground for judicial review. On the first page of the document there is a claim: “The respondent has not considered the evidence which is in favour of the applicant”. However, in my opinion this has no substance since the Tribunal shows that it was sufficiently alive to the applicant’s original claims.
The applicant was directed in this Court to file an amended application with more details of his grounds and written submissions prior to the hearing fixed for today, but has not filed any such documents. He was unable today to present an argument showing relevant error by the Tribunal, and his submissions to me amounted to a plea that I should give him a remedy due to his fears of returning to China. As I have explained to him, that is not a ground on which the law allows me to set aside the decision.
For the above reasons I dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $4000.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 10 March 2005
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