SZEIQ v Minister for Immigration
[2005] FMCA 591
•15 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEIQ v MINISTER FOR IMMIGRATION | [2005] FMCA 591 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no grounds for review – applicant did not attend Tribunal hearing – no jurisdictional error – privative clause decision – no error of law – application dismissed. Migration Act 1958 (Cth) NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 |
| Applicant: | SZEIQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2752 of 2004 |
| Delivered on: | 15 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 15 April 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Advocate for the Respondent: | Ms A Alex |
| Solicitors for the Respondent: | Phillips Fox |
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 $1,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2752 of 2004
| SZEIQ |
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 11 April 2004. On 20 April 2004 he applied for a protection visa, which was refused by a delegate of the Minister on 23 April 2004. The applicant then lodged an application for review in the Tribunal on 25 May 2004.
On 3 June 2004 the Tribunal wrote to the applicant at both his home address and his mailing address stating:
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.
Hearing of the Tribunal
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 date for the hearing was to be Thursday 8 July 2004 at 10.00am. The applicant did not attend the hearing nor did he respond to the invitation.
On 14 July 2004 the Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa and that decision was handed down on 4 August 2004.
The applicant filed an application for judicial review in this Court on 6 September 2004. That application does not include any viable legal grounds for review.
On 20 September 2004 the applicant agreed to consent orders that he file and serve an amended application, giving complete particulars of each ground of review being relied upon by 1 December 2004. As the applicant agreed at the hearing, he has not complied with that order.
Claims before the Department and the Tribunal
The applicant claims to be a “genuine Falun Gong practitioner”. He alleges that in February 2002 he was arrested at home and sent to a forced labour camp at a place called Shijiazhuang. He says he was asked to sign a declaration renouncing Falun Gong, but he refused to do so. He also refused to wear a prisoner’s uniform and to respond to a roll call in prison because he was innocent of any crime.
He says he was subject to various extreme forms of torture, such as being strung up from his arms and legs, being force fed excrement and being placed in the open air in extreme temperatures. He was released, he says, as a cripple and recovered after six months.
He was able to obtain a visa to come to Australia. His claim was that he able to obtain a passport and exit permit to allow him to come to Australia by bribing a police officer to “wash” his criminal record. He submits that he applied for refugee status so that he could continue to practice Falun Gong in Australia and not been sent to gaol in China.
His claims are set out at Court Book pages 14 and 15, in a statement that was attached to his protection visa application, and at Court Book page 34, in a statement attached to his application to the Tribunal.
As the applicant failed to respond to an invitation to attend the hearing the Tribunal was not in a position to obtain further oral evidence from him.
Tribunal decision
The Tribunal was unable to be satisfied that he was a Falun Gong practitioner and whether he had been detained and tortured. It was therefore unable, on the limited evidence before it, to make a decision that he was a refugee. It said at Court Book page 51:
The Tribunal’s letter of 3 June 2004 advised the Applicant that the available material was insufficient for it to make a favourable decision. The Tribunal has before it little more than a vague and incomplete account contained in the Applicant’s protection visa application and his brief written statement to the Tribunal. It has not had the opportunity, through a hearing or other means, to obtain further information to determine the veracity of the Applicant’s claims and their relevance to his application for refugee status.
The Tribunal member then listed a range of relevant matters about which he had been unable to satisfy himself.
At page 52 the Tribunal said:
On the limited evidence before it, the Tribunal cannot be satisfied that the Applicant adheres to Falun Gong, that he has in the past been subject to persecutory harm in China for that or for any other reason, or that there are any other past or current circumstances which give rise to a well-founded fear of persecution within the meaning of the Convention in the reasonably foreseeable future. The Tribunal cannot be satisfied that he is a refugee.
Consideration
The application filed on 6 September 2004 contains no grounds suggesting any legal error. It merely asserts factual matters and as such invites the Court to interfere with the findings of fact of the Tribunal. For example, under the head “The applicant claims” the applicant says:
1. I meet the refugee criteria
2 . The decision made by the respondent interferes with my rights to remain in Australia.
Under “The grounds of the application” he says:
1. I fear persecution because I am a practitioner of Falun Gong in China.
2. My fear is well-founded because I have been jailed by Chinese Government.
As I have already mentioned, no amended application has been filed. Furthermore at the hearing the only matters that the applicant put before the Court amounted essentially to the applicant reiterating his contention that he was a refugee and inviting the Court to deal with his refugee application. When asked to identify any legal errors the applicant was unable to do so.
As the respondent has submitted the Tribunal decision ultimately turned on the limited evidence before it. The Tribunal was unable to reach a decision in the applicant’s favour because of his failure to provide sufficient evidence to satisfy the Tribunal that Australia owed protection obligations to him.
A significant concern was his failure to attend a hearing where he would have had the opportunity to substantiate the claims he made in the written documents before the Tribunal. But as the applicant failed to attend the hearing the Tribunal was unable to satisfy itself that he had a well-founded fear of persecution.
As the Full Court of the Federal Court has said in NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [5]:
As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason … it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.
In the words of the Full Court in SJSBv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 at [15]:
it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.
Before rejecting the application for review and affirming the decision of the Minister’s delegate the Tribunal had put the applicant on notice that it was not satisfied by the evidence he had provided in support of his application. The applicant was therefore offered the opportunity to appear before the Tribunal, to address any concerns it may have had about his claims and to put forward any further evidence upon which he relied.
As the Full Court of the Federal Court said in S58 of 2003 vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at [26]:
He cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity.
Conclusions
The application is deficient in that it does not identify anything in relation to the decision of the Tribunal or its proceedings which would help 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 assist me in identifying a legal error. But apart from disputing the factual findings of the Tribunal, he was unable to do so.
The advocate 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 was unable to reach a favourable decision for the applicant because it could not reach the requisite degree of satisfaction on the material before it. This was reasonably open to the Tribunal on the material it had before it. Nothing has been put to me that suggests that the Tribunal made any legal error going to jurisdiction in coming to its decision.
I find that the Tribunal decision is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Furthermore, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Migration Act 1958 (Cth) and to the powers conferred on the Tribunal.
In the circumstances I dismiss the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: K Thynne
Date: 31 May 2005
0
4
0