SZEVK v Minister for Immigration

[2005] FMCA 1173

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEVK v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1173

MIGRATION – RRT – Chinese applicant claiming persecution as Falun Gong practitioner and on political grounds – did not attend Tribunal hearing – no error found.

Migration Act 1958 (Cth), ss.441A(4), 425A, 426A, 426A(1), 441A(4), 441C(4), 441G, 474(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550 at 564
NADK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant: SZEVK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2086 of 2004

Judgment of: Smith FM

Hearing date: 5 August 2005

Delivered at: Sydney

Delivered on: 5 August 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms S Burnett

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Tribunal be joined as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.

2. The application is dismissed.

3. The applicant must pay the first respondent’s costs in the sum of $3000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2086 of 2004

SZEVK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated

   
   

   20 May 2004 and handed down on 10 June 2004.  The Tribunal affirmed a decision of a delegate which refused to grant a Protection Visa to the applicant.

2. Section 483A gives the court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is 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 (2003) 211 CLR 476, the limitations on my power have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant qualifies for a refugee visa nor for any other permission to stay in Australia.

3. The present applicant is a national of the People’s Republic of China who arrived in Australia on a 12 day visitor’s visa in January 2004.  On 4 February 2004, he made an application for a protection visa assisted by a migrant agent, Mr Wu.  He appointed Mr Wu as his agent in relation to the application and also adopted Mr Wu’s postal address as his postal address.

4. The Applicant’s application contained a brief typed statement setting out his claims.  He said:

   I left China because I worry that the Chinese authority would persecute me.  I was born in an intellectual family and my family members and I have experienced all sorts of political movements.  We all suffered from mental and physical torment during the numerous political movements.  I have lost confidence with the Chinese authorities and I came to Australia for protection.

5. He said that recently, he had “been involved with Falun Gong activities” and had been called to “the general manager office for brainwashing”.  He said he had been warned that “if any evidence were found, I would be detained and sent to prison.” He said “now the cracking down of ‘Falungong’ has begun, I believe I would suffer the same as my parents have suffered”, referring to hardships suffered by his parents during the cultural revolution. 

6. A delegate refused the decision on 10 February 2004.  In the statement of reasons sent by the delegate, he said that it was not reasonable to accept that the applicant would suffer appreciable difficulties as a result of his family background during the cultural revolution which ended in 1976.  The delegate noted the applicant’s claims to be at risk as a follower of Falun Gong, but drew attention to his ability to leave China and noted that the applicant had submitted no evidence to support his claims to be at risk for his claimed Falun Gong affiliation. 

7. The applicant lodged an application for review in the Tribunal on 17 May 2004, in which he appointed Mr Wu as his authorised recipient to act on his behalf in relation to the case.  He gave a home address at Chipping Norton and a mailing address which was also Mr Wu’s address.  His statement accompanying the application gave no greater detail than his original visa application. 

8. The Tribunal’s acknowledgement of the application was sent on 18 March 2004, and informed the applicant that he might be invited to a hearing.  It explained why this was important as “your opportunity to give the Tribunal evidence to support your application”. 

9. On 9 April 2004 the Tribunal posted a letter dated 8 April 2004 to the applicant’s home address.  I am prepared to infer that it was also to the applicant at the agent’s address and to the agent at the same address.  It invited the applicant to come to a hearing “to give oral evidence and present arguments in support of your claims”.  The appointment was made for 7 May 2004, and the letter informed the applicant that if he did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice. 

10. The letter sent to the home address given by the applicant to the Tribunal was returned to the Tribunal on 15 April 2004, marked by the post office: “insufficiently addressed”.  There was no evidence before me to explain what was insufficient about the address given by the applicant to the Tribunal, but I am satisfied that the letter was indeed posted by registered post to the address as given in the application to the Tribunal.

11. The letters sent to the agent’s address were apparently received by somebody, since a response to hearing invitation was returned to the Tribunal on 15 April 2004.  It has the agent’s signature on it and indicated that the applicant wished to attend the hearing. 

12. However, in its reasons the Tribunal said:

    the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

13. The applicant has presented no evidence to me, sworn or unsworn, whether from himself or from his agent, to contest the Tribunal’s assertion that no contact was made to the Tribunal prior to it making its decision to explain an inability by the applicant to attend the hearing nor to seek an adjournment or rescheduling. 

14. The Tribunal’s power under s.426A to make a decision on the review without taking any further action to allow or enable the applicant to appear before it is dependent upon proper service of a notice pursuant to s.425A and related service provisions in s.441A(4), 441C(4) and reg 4.35D. Under s.441G, if an applicant has given notice to the Tribunal of the name and address of an authorised recipient:

    The Tribunal must give the authorised recipient, instead of the applicant, any document that would otherwise have given to the applicant. 

15. The effect of that provision in the present case is, in my opinion, to deem the applicant to have been given any notices which have been duly given to the agent pursuant to the service provisions of the legislation. These were followed in the present case, and I am satisfied that the Tribunal had available to it the power to proceed pursuant to s.426A(1). I am not satisfied that the Tribunal’s decision was affected by any error vitiating its exercise of discretion so to proceed.

16. When these matters were raised by me with the applicant today, he maintained that he had not received the letter and not known of the hearing date.  This is an assertion not previously made by him in the documents filed in the Court, but I am prepared to assume it might be true.  However, the scheme of the legislation in relation to service of notices has the effect that it is irrelevant whether the hearing invitation was actually received, at least, unless the Tribunal is on notice of some circumstances requiring it to take further action (see, for example, Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550 at 564 and cases cited there, including NADK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184). As I have held above, it was not on such notice in the present case.

17. In its reasons for affirming the Delegate’s decision, the Tribunal identified the claims made by the applicant in the statements accompanying his visa application and his review application.  It accepted that the applicant was a national of China, but said:

    The applicant has provided scant details in his application for a Protection Visa. 

18. The Tribunal noted that the applicant had not responded to the points made by the delegate by providing evidence of the difficulties which he claimed to have suffered as a result of the treatment of his parents during the cultural revolution. 

19. In relation to the applicant’s claims concerning involvement with Falun Gong, the Tribunal pointed out that the applicant had not stated when he received his warning and had not stated that he was detained or mistreated in any other way.  The Tribunal noted that he had not indicated when he commenced to practice Falun Gong nor the nature of his involvement.  He had not given evidence that there were further adverse consequences other than the interview with the general manager. 

20. The Tribunal’s conclusion was:

    In view of the lack of detail contained in the protection visa application and in the absence of a hearing to test the truthfulness of the applicant’s claims and establish relevant facts, I am not satisfied that the applicant is or was a Falun Gong practitioner or that he suffered mistreatment.  Indeed, on the information provided by the applicant I am not satisfied that any of the claims with respect to Falun Gong are true.  Furthermore I do not accept that the applicant has suffered harm amounting to persecution at any time in his life as a result of the treatment of his parents during the Cultural Revolution.  As I do not accept the applicant’s claims on the facts I cannot be satisfied that he has a well-founded fear of persecution for a Convention reason.

21. I have carefully considered the Tribunal’s reasoning and can find no error made by it in its identification of the applicant’s claims, nor in its assessment of them in the light of the evidence that was before it.  I can find no jurisdictional error affecting the decision. 

22. The applicant has filed two documents in the Court.  His original application makes general assertions that the Tribunal, “made jurisdiction mistakes” and “had bias against me”, but no particulars of these allegations have been given and I cannot find any substance in them. 

23. The applicant also claims “the Tribunal made mistakes in saying that I was not a refugee”.  This appears to me to be a contention addressing the perceived merits of the Tribunal’s decision and I cannot find any mistake giving rise to jurisdictional error. 

24. The applicant filed on 9 December 2004 an amended application which can be found on the file.  I have read its statements and consider that, essentially, it disputes the factual conclusions of the Tribunal based on a repetition of the applicant’s assertions as to his fears and the reasons why he left China.  I do not think they identify any ground of jurisdictional error. 

25. The applicant has not made any additional submission to me today. 

26. For the above reasons, and in the absence of jurisdictional error affecting the Tribunal decision, I find that it was a privative clause decision under s.474(1) of the Migration Act and that the court has no power to give any of the remedies sought by the applicant.  I must dismiss the application. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  24 August 2005