SZEGS v Minister for Immigration - [2005] FMCA 238

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEGS v MINISTER FOR IMMIGRATION

[2005] FMCA 238

MIGRATION – RRT decision – Chinese Shouter – did not attend Tribunal hearing – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A, Part 8

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Applicant:

SZEGS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2643 of 2004

Judgment of:

Smith FM

Hearing date:

24 February 2005

Delivered at:

Sydney

Delivered on:

24 February 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms N McLaughlin

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $2300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2643 of 2004

SZEGS

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 29 June 2004 and handed down on 27 July 2004. The Tribunal affirmed a decision of a delegate refusing an application for a protection visa.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction is the Federal Court’s general judicial review jurisdiction conferred by 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, those limitations mean that the Court does not have power to set aside a decision of the Tribunal and to send a case back unless it is satisfied that the Tribunal’s decision was affected by jurisdictional error. The Court does not have power to decide whether an applicant is a refugee or not, and does not have the power to order the grant of a visa. I cannot send the case back to the Tribunal merely because I have sympathy for the applicant in his predicament.
The present applicant arrived in Australia in March 2004 on a one month visitor visa and within that period applied for a protection visa. He was assisted by a migration agent in making his application. Attached to the application was a typed statement in which he claimed:
I am a Member of the Shouters. It is one of the 16 underground Christian groups in China. I was a key member of the group and have involved with its activities actively. Some members have been detained and I worry about my safety. If I continue to stay there, I would suffer the same as other members in China.
The statement provided little further details of these claims.
The delegate refused a visa in a decision dated 15 April 2004 and gave reasons which were sent to the applicant. In his reasons, the delegate drew attention to country information suggesting that, if the applicant was of interest to Chinese authorities, he would not have obtained a passport and been able to leave China. The delegate also pointed to the absence of evidence to support his claims to have been persecuted as a Shouter in China.
The applicant filed an application for review by the Refugee Review Tribunal on the 19 May 2004. He was assisted by a migrant agent, Yujun Simon Wu trading as Banksia Glen Int. Pty Limited. In his application for review the applicant gave a home address and a mailing address which was his agent’s address, and he authorised his agent to receive correspondence on his behalf. He also expressly authorised his agent “to act on my behalf in relation to this case”. The application contained a brief typed explanation for the appeal which gave no further details or supporting material in response to the delegate’s reasons.
The applicant was sent an acknowledgment of his application on 19 May 2004, in a letter which indicated that, if the Tribunal could not make a decision on his favour when it received the file, it would invite him to a hearing. The letter indicated that a hearing was important as it was, “your opportunity to give the Tribunal evidence to support your application”.
The Tribunal send a second letter dated 3 June 2004 addressed to the applicant at his mailing address and also to him at his home address and also to his agent. The letter invited him to attend a hearing “to give oral evidence and present arguments in support of your claims”. The letter indicated: “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 28 June 2004 the Tribunal received a completed “Response to Hearing Invitation” signed by the agent which indicated:
No, I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
In its reasons, the Tribunal sets out the above history and said that it determined the matter on the evidence available to the Tribunal. Not surprisingly, the Tribunal arrived at the following conclusions:
The Tribunal is unable to be satisfied that the applicant is a Christian Shouter. The applicant has provided no supporting information to substantiate his claims that he is a Shouter. He has not given evidence that he is practising his religion in Australia. He has decided not to attend the hearing before the Tribunal where the applicant would have been able to provide evidence of his religious belief and to give evidence in support of his claims that his group is persecuted and harassed in China.
The applicant claims that some of his friends have been detained and sentenced. However, he has not provided any details about when and how they were detained and when they were sentenced. He has not given a plausible explanation as to why he would be considered a leading member of the group. If he were a leading member of the group, the applicant has given no explanation as to why was he not also arrested and detained. It is not clear if the authorities were interested in him. If they were interested in him, the Tribunal would have sort evidence about how he managed to leave China with a passport in his own name. The Tribunal is not satisfied that he was a leading member of the Shouters as he 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.
The application for judicial review filed in this Court on 25 August 2004 alleged:
1.I was not given a proper opportunity to explain my case.
2.The Tribunal made jurisdiction mistakes in saying I was not a refugee.
On the material before me, neither of those general allegations has any substance. I am unable to identify any jurisdictional error in the proceedings and decision of the Tribunal.
The applicant attended a first hearing date in this Court in September 2004 and was directed to file and serve an amended application and written submissions 14 days before the hearing appointed for today.
On 6 October 2004 a typed document signed by the applicant was sent by facsimile to the Registry. It was not in proper form and the Registrar, on 7 October 2004, requested the applicant to complete a proper form of amended application. The applicant never did that and has not filed any submissions in support of his case. However, with the consent of the Minister’s representative today, I have received that document in evidence as a submission only. It contains an allegation that:
I was not given a proper opportunity to explain myself. My application for a postpone of the hearing date was not approved and the officer refused my application because I had not attended the interview offered.
At the hearing today I informed the applicant that if he wanted me to accept that he had asked for and been refused a postponement of the hearing date, he would need to give evidence about that on oath in the witness box. I am satisfied that he understood the procedure and that he declined that opportunity. Curiously, when later invited to make submissions in relation to his case, he said that he had not attended the hearing because his friend warned him that he would be arrested if he attended the hearing and he was too scared to attend.
That statement, directly inconsistent with the written statement, was similarly unverified and I am left in a situation where I have no proper evidence from the applicant concerning his non-attendance at the Tribunal hearing. On the documentary evidence referred to above, I am satisfied that the Tribunal properly informed the applicant and his agent of a hearing time and that the applicant was given a reasonable opportunity to attend. I can find no procedure under the Migration Act required to be followed by the Tribunal which was not followed. I therefore reject the claim that the applicant was not given a proper opportunity to explain himself.
The remainder of the document merely suggests that explanations might have been given to the Tribunal if he had attended a hearing. However, this does not provide a ground upon which I can set aside the Tribunal’s decision in the absence of jurisdictional error identified in its proceedings.
The applicant was unable to give further oral submissions today, saying that he could not think of anything to say. He asked for another chance to stay a bit longer in Australia. However, as I have explained to him, that is a plea which I cannot give effect to.
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 $2300.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 10 March 2005