SZEGX v Minister for Immigration
[2005] FMCA 953
•24 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGX v MINISTER FOR IMMIGRATION | [2005] FMCA 953 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Falun Gong – China – failure of applicant to attend hearing – no error of law – privative clause decision – application dismissed. |
| Migration Act 1958 (Cth), s.426A |
| Abebe v Commonwealth (1999) 197 CLR 510 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZEGX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2653 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 24 May 2005 |
| Date of Last Submission: | 24 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2005 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Advocate for the Respondent: | Mr B Cramer |
| Solicitors for the Respondent: | Blake Dawson Waldron |
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 $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2653 of 2004
| SZEGX |
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 a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 14 July 2004 and handed down on
4 August 2004.
The applicant is a citizen of China who arrived in Australia on
9 September 2003. On 19 September 2003 she applied for a protection visa. Her husband also applied for a protection visa as a member of her family unit with no independent claims of his own. The husband is not a party to the proceedings before this Court.
On 31 October 2003 a delegate of the Minister refused the protection visa application and on 12 November 2003 the applicant lodged an application for review with the Tribunal.
On 25 May 2004 the Tribunal invited the applicant to attend a hearing which was to take place on 13 July 2004. No response was received from the applicant. The applicant’s adviser informed the Tribunal by fax on 5 July 2004 that he had forwarded the notification for the hearing to his client but had not received any confirmation or otherwise as to whether she would be attending the hearing. The applicant’s adviser also notified the Tribunal he himself would not be attending the hearing.
As I have indicated on 14 July 2004 the Tribunal affirmed the decision of the delegate not to grant a protection visa and the Tribunal’s decision was handed down on 4 August 2004.
The applicant’s claims before the Department and the Tribunal
The applicant’s claims centred upon allegations of persecution due to her participation in Falun Gong. Her claims are set out in a statutory declaration at pages 31 to 36 of the Court Book. She says that she is from Fushun in the People’s Republic of China. Her family were all martial arts teachers and she practised Chinese martial arts from a young age. After high school she worked as a full time martial arts teacher, teaching thousands of students and became well known for her martial arts, also partly due to her family background.
In early 1995 she began practising Falun Gong which at the time she considered a form of martial arts. She also says that she taught it to her students as she believed it was good for their health. As a result of her status as a well-known teacher of martial arts she was visited by a Falun Gong team leader and formally introduced to the religious aspects of Falun Gong. She and her husband became devout practitioners and she became a team leader, using her position to teach about 600 people.
After Falun Gong became illegal in 1999 she held secret meetings for her students. In June 2000 she was arrested and placed in a detention centre after being discovered by the police. She says that she was mentally and physically tortured while there. As she refused to provide a written statement that she would cease practising Falun Gong she was severely beaten. She was denied food and water and she attempted to commit suicide several times.
Outside the detention centre her husband and parents were harassed and threatened. She was eventually released because her father-in-law had good relations with some politicians. She says that she was warned to be inconspicuous and stay at home. She still has nightmares from her three weeks spent in detention. She lost her job and her boss told her that she could not return until the Government was convinced she would not practise Falun Gong.
Another of her father-in-law’s powerful friends helped obtain passports and Australian visas for the couple. They paid a bribe for these documents. She claims that Falun Gong practitioners are not tried under ordinary criminal law in China. If she is sent back to China she will be persecuted and sent to a detention centre.
Tribunal consideration
The important elements in the Tribunal’s consideration and reasons are set out at paragraphs five to seven of the respondents submissions:
5. The applicant was invited, by way of letter dated 25 May 2004, to attend a hearing before the Tribunal that had been scheduled for 13 July 2004 (CB 069, and 080). However, the applicant did not appear at the hearing and the Tribunal determined the review pursuant to section 426A of the Migration Act 1958 (the Act).
6. The Tribunal noted there were “a number of issues” about which it required “a good deal more detailed evidence” before it could be satisfied that either the applicant, or her husband, had a genuine and well founded fear of persecution if they were to return to China (CB 083).
7. Specifically, the Tribunal was unable to accept from the “limited and generic evidence” before it that the applicant was a FG [Falun Gong] practitioner as she had claimed. Accordingly, it followed that the Tribunal was not satisfied that the applicant had been detained and tortured by Chinese authorities, that she had subsequently lost her employment or that she had otherwise experienced “ongoing harassment” due to her alleged FG involvement. The Tribunal therefore affirmed the decision under review (CB 083).
Consideration
The application filed on 26 August 2004 is completely devoid of grounds. Despite an order of this Court the applicant has failed to file and serve an amended application setting out grounds and complete particulars for each ground of review relied upon.
At the hearing I pointed out the role of this Court to the applicant on a number of occasions, emphasising that it must focus on legal errors made by the Tribunal. The applicant had some difficulty understanding what was meant by a legal error. She eventually said that she did not think that the Tribunal had made any legal errors. It was because she had not provided sufficient evidence that the Tribunal had not been able to make a decision in her favour. She said that she had great difficulty getting evidence to support her case before the Tribunal. She had not attended the Tribunal hearing as she did not have sufficient funds to employ a lawyer. She said that she and her husband suffered persecution in her country and the Australian Government should protect them.
The Tribunal made it clear that it required more information and evidence from the applicant before it could be satisfied that the applicant was in genuine fear of persecution. It had invited the applicant to a hearing, advising the applicant that it could not make a decision in her favour on the material that she had already provided. It had noted that if the applicant did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on her case without further notice. This it was perfectly entitled to do in accordance with s.426A of the Migration Act 1958 (Cth) (the Act).
Furthermore, the Tribunal noted that it could not be satisfied on the limited evidence on the claims made by the applicant. The Tribunal was therefore compelled to affirm the decision under review (see the Full Court decision in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225). As was said by Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Conclusions
The application is deficient in that it does not identify anything about the decision of the Tribunal or the proceedings before the Tribunal to assist the Court in determining whether there was any reviewable legal error.
I invited the applicant at the hearing to put to me anything that might point to a legal error. She was unable to identify any and in fact expressly said that there were no legal errors in the Tribunal decision. She merely reiterated that the Australian Government owed her protection.
The Minister’s counsel has submitted that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is apparent that the Tribunal was unable to be satisfied on the evidence of any of the claims made by the applicant. The Tribunal’s conclusions were reasonably open to it on the limited material it had before it.
I am not satisfied the Tribunal made any 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 to the powers conferred on the Tribunal.
In the circumstances, I dismiss the application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Z Chiam
Date: 15 August 2005
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