SZENB v Minister for Immigration
[2005] FMCA 699
•3 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZENB v MINISTER FOR IMMIGRATION | [2005] FMCA 699 |
| MIGRATION – Review of Refugee Review Tribunal decision – Falun Gong – notification of Tribunal hearing – objection to competency upheld – privative clause decision – application dismissed. |
| Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A, 477 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZENB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2989 OF 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 3 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2005 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Solicitors for the Respondent: | Phillips Fox Lawyers |
ORDERS
The objection to competency be upheld.
The application 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 |
SYG2989 of 2004
| SZENB |
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 the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 23 January 2003 and handed down on 19 February 2003.
Background
The applicant, who is a citizen of the People's Republic of China, arrived in Australia on 21 August 2001 on a visitor's visa. On
21 September 2001 he applied for a protection visa which was refused by a delegate of the Minister on 11 December 2001.On 14 January 2002 he lodged an appeal with the Tribunal. A hearing was scheduled for 21 January 2003 but the applicant did not attend. As I have noted the Tribunal affirmed the decision of the Minister's delegate on 23 January 2003.
Claims before the Department and the Tribunal
The applicant's case centred upon his claim that he was a Falun Gong practitioner who had been seriously mistreated by Chinese authorities. He says he began practising Falun Gong in the summer of 1996.
He records his occupation as a taxi driver but also states that after ten years as a taxi driver he saved enough money to open a waste recycling company. That business was profitable and he was able to provide a happy and wealthy life for his family.
He was one of the most active Falun Gong practitioners in his local district. He organized places to practice, printed promotional pamphlets, made contact with other groups and organized public studies for new learners.
Once Falun Gong was declared a cult by the Central Government he was closely watched by the local police, required to write daily reports and forced to attend “re‑education class”. He said that this did not convince him to give up his practice but instead gave him the opportunity to meet other practitioners from his home town. When they met they usually organized a venue for the next practice by the end of each class.
The applicant says that the police then detained him and other practitioners in a small room, far from the city, for seven days where they were given inadequate food and cut off from outside contact. Upon an assurance from family members that he would not practice Falun Gong at home, he was released along with six others.
He further claims that his house was searched, his assets taken away, and both his and his wife's bank accounts frozen. He feared that if he continued practising in China he would be persecuted to the point of death and his family “would be involved” because of him. He says that with the help of a friend, he obtained a passport in another district and paid for an Australian visa.
Tribunal consideration
A summary of the Tribunal's consideration of this matter is accurately recorded at paragraphs six to ten of the respondent's submissions:
6Despite indicating that he would do so, the applicant did not provide any additional information to the RRT (CB 48). As the applicant did not attend his hearing, the RRT proceeded to determine the matter on the written information before it (CB 68).
7In assessing the claims, the RRT considered country information regarding the treatment of FG practitioners in China and the ease of obtaining passports and exiting China. These issues were put to the applicant by a delegate of the Minister before making the original decision in a letter dated 30 October 2001 (CB 34-35). The applicant did not respond to the letter.
8The RRT found that the applicant's actions while in Australia, in particular his failure to respond to the request to comment on information, his failure to provide any further details subsequent to his application for review, and his failure to attend the arranged hearing, were not consistent with a subjective fear of persecution.
9The RRT found that the applicant had only provided vague details about his claims. There was nothing, other than the applicant's unsubstantiated assertions, to support that the applicant was a FG practitioner, let alone that he was a relatively prominent figure in the movement.
10In addition, the RRT found that the country information suggested that ordinary adherents of FG were unlikely to be the subject of particular attention by the authorities. It also suggested that if a person obtained a passport and exit visa to leave China then they were of no interest to Chinese authorities. The RRT therefore concluded, on the evidence before it, that the applicant could not have been a leader in the FG movement and, if he was a member at all, was an ordinary member. He was of no adverse interest to the Chinese authorities.
Critically the Tribunal said in its decision at Court Book 70:
Not only are there insufficient particulars provided by the applicant to enable me to be satisfied that he was ever a leader or organiser of the movement, as he claims, there is insufficient information for me to be satisfied that the applicant has been a member of the Falun Gong movement.
Consideration
Claims in the amended application
The amended application filed on 24 November 2004 set out four alleged grounds. I will consider each in turn.
Ground one:
The Tribunal relied crucially upon advice received by it from the Department of Foreign Affairs and Trade in regard to the validity.
There is no doubt that independent country information was used by the Tribunal, including general advice received from the Department of Foreign Affairs and Trade (DFAT), but this was not crucial to the decision. The critical point in the Tribunal's reasons was as set out above from Court Book 70 – that there was insufficient information for the Tribunal to be satisfied that the applicant had been a member of the Falun Gong movement.
It is obvious that the Tribunal's conclusions were supported, as obiter, by independent evidence about the Chinese Government targeting leaders of Falun Gong and information on the ease with which one obtains a passport and exit visa to leave China. Whether or not this independent country information was used to support the critical finding of the Tribunal, it could not be regarded as irrelevant to the issues before the Tribunal.
Ground two:
The applicant through his adviser at the Tribunal hearing cautioned against the Tribunal relying on such advice. The Tribunal sought the assistance of the Department of Foreign Affairs and Trade in establishing whether its earlier advice remained accurate.
I will deal with ground three with ground two:
The Department of Foreign Affairs and Trade was unable to obtain information to either confirm or vary its early advice about the form and hence the validity of official documents tendered to the Tribunal.
These two grounds appear to have been borrowed from some other application as they do not relate to the current matter before the Court.
For example, the applicant did not attend the Tribunal hearing so he could not have cautioned against the Tribunal relying on such evidence at the hearing. Furthermore although the Tribunal had regard to a number of DFAT documents, there is no evidence that it communicated with that Department on this matter.
Ground four:
The Tribunal was in error law about considering RRT decision for refugee protection visa.
The only issue which the applicant raised that could amount to a legal error is that the Tribunal made its decision without hearing from him in person. He says that his case was therefore prejudged and he was not treated fairly. There is no doubt that the Tribunal made its decision without the applicant appearing before it. The question then is whether this amounts to a breach of the provisions of the Migration Act 1958 (Cth) (the Act), in particular sections 425, 425A, and 441A.
The invitation under section 425 was sent to the applicant at two addresses (Court Book 52 and 53). These were a post office box address given as his mailing address on his Tribunal application at Court Book 46 and his Dee Why street address, also provided in the application. The invitation was also sent to his agent at a post office box address in Haymarket, but not to the agent's street address given in the application at Court Book 47. This post office box address for the agent was also the same post office box address given by the applicant as his mailing address (Court Book 46).
In my view, the invitation sent to these addresses satisfies the requirements of sections 425, 425A and 441A of the Act. In particular, subsection 441A(4)(c) allows for the use of alternative addresses, one of which is the last residential address Here this was the Dee Why address. The letter of invitation of 5 December 2002 was sent to that address, as well as the post office box address.
However from the bar table today the applicant said that he had not received the invitation and that he had moved residence.
He did not say however that he had changed his agent or that the post office box address was no longer his or no longer used. He said he would have attended if he had been asked and if he had received the letter. Furthermore he agreed that he had not notified the Tribunal of any change in address.
I can discern no breach of the relevant provisions. The applicant was properly notified of the invitation to attend a hearing in accordance with these provisions. The Tribunal can hardly be held responsible if the applicant failed to advise it when he changed his address.
Under section 426A of the Act, the applicant having failed to attend, the Tribunal was entitled to proceed to a decision without further action to allow the applicant to appear before it. This ground is not made out.
Procedural fairness generally
The applicant claims that he was treated unfairly. However most of his submissions today related to factual disputes he had with the Tribunal's decision-making. In effect he sought a re-hearing of these factual matters.
It is hard to accept that he was unfairly treated. Before the delegate, he was given an opportunity to comment on certain independent country information to which he failed to respond (Court Book 34).
At Court Book 48 he told the Tribunal in his application that “details will be forwarded shortly with hard copy” but nothing extra was provided to the Tribunal. An invitation to attend a hearing was sent to the last address he provided to the Tribunal. Apparently as a result of failing to receive this invitation he did not attend.
I can find no evidence of procedural unfairness to support the matters raised by the applicant today.
Conclusions
The amended application is deficient in that it does not identify anything of substance concerning the decision of the Tribunal or the proceedings before the Tribunal which could assist the Court in determining whether there was any reviewable legal error.
I invited the applicant today to put to me anything that might assist in identifying a legal error. Apart from reiterating his dispute with the findings of fact made by the Tribunal and his concern about not receiving an invitation to attend the hearing, he was not able to expand upon his application.
The Minister has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed and that it is incompetent as it was filed out of time. I agree.
It is apparent that the Tribunal was not able to make a decision in the applicant's favour because of the lack of evidence. It is also clear that the principal concerns of the applicant today, apart from the hearing issue, amount to a dispute with the fact findings of the Tribunal.
As I have told the applicant, the role of this Court is somewhat different from that of the Tribunal and it is not possible for me to reexamine the facts found by the Tribunal.
The findings of the Tribunal were reasonably open to it on the material before it. I am satisfied 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 of Australia (2003) 211 CLR 476.
The respondent has objected to the Court’s competency on the basis that the application was filed out of time. Subsection 477(1A) of the Act provides that an application in respect of a privative clause decision must be made to the Court within 28 days of notification of the decision. Subsection 477(2) prohibits the Court from enlarging that time.
In this matter, the application was handed down on 19 February 2003 but the application was not filed in the Court until 1 October 2004, well outside the 28 day time limit. The application, relating as it does to a privative clause decision, is therefore incompetent and the Court has no jurisdiction to deal with it.
In the circumstances the objection to competency must be upheld and the application dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Mowbray FM.
Associate: Zhan Chiam
Date: 19 August 2005
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