SZEYE v Minister for Immigration - [2005] FMCA 1395

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEYE v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1395

MIGRATION – RRT decision – Chinese claiming Falun Gong participation – did not attend Tribunal hearing – no error found.

Migration Act 1958 (Cth), ss.424A, 424A(1)(a), 425A, 426A, 441A(4), 441C(4), 474, 474(1), 483A
Migration Regulations 1994 (Cth), reg.4.35D

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158

Applicant:

SZEYE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2246 of 2004

Judgment of:

Smith FM

Hearing date:

8 September 2005

Delivered at:

Sydney

Delivered on:

8 September 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms T Wong

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2246 of 2004

SZEYE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 May 2004 and handed down on 16 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.483A is limited by s.474, so that I do not have power to set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed nor whether he qualifies for a refugee visa.
In the present case the applicant arrived in Australia in January 2004 from the People’s Republic of China, of which he is a national. On 23 January 2004 he lodged an application for a protection visa assisted by a migration agent, Ms Ying Ying Bao. The agent’s postal address was a post office box in Haymarket, and the applicant’s visa application gave that address as his “current postal address in Australia”. Attached to the application was a short typed statement in which the applicant said he was a “common Falun Gong Practitioner”. He suggested that his involvement in the practice had occurred in 1995, and that:
When the persecution of Falun Dafa began on July 20, 1999, I was the first to be targeted for persecution in (his locality) because I was the volunteer in charge of the (locality) Falun Dafa Assistant Center.
The applicant said that he had been taken by the police and held for some days in August 1999, and that in May 2000 he had been taken to a detention centre, beaten and tortured and held for 3 months. He said that this happened again in September 2001, and that he was released in February 2002 “only because I was on the edge of death”. He claimed that his parents bribed a government official to issue a passport and “wash my so‑called criminal record. Thus, I could apply for a visitor visa to Australia”.
No details nor corroboration of these claims was provided to the delegate, nor subsequently to the Refugee Tribunal. A delegate refused the application on 10 February 2004 and the applicant applied for review by the Tribunal on 15 March 2004. His application did not appoint an agent to act for him, but gave as his mailing address his previous agent’s post box. It also gave a home address at Campsie. The application attached some extracts from his previous statement verbatim.
By letter dated 8 April 2004, the Tribunal informed the applicant that it had “considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”. The letter invited the applicant to attend a hearing on 25 May 2004 “to give oral evidence and present arguments in support of your claims”. The letter informed the applicant:
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.
The letter in the Court Book indicates that it was sent with an enclosure including a brochure and “multilingual advice”, but there is no evidence as to the content of that advice. The letter in the Court Book indicates that it was sent by registered post to both the post box given by the applicant as his mailing address and also to his home address at Campsie.
In its reasons for decision when affirming the delegate’s decision, the Tribunal refers to this letter and says:
No response was received. A check was made with the Department of Immigration to ensure the Tribunal had the applicant’s most recent address, and attempts were made to contact him by telephone. A movements check was made revealing that the applicant was still in Australia.
The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. 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.
The applicant today confirmed that he did not attend the hearing. He said from the bar table that he had not understood the meaning of the letter because his English was not good. However, he could not explain why he could not obtain assistance when reading official correspondence, and did not suggest that the Tribunal was made aware in any fashion that he may not have received or understood the invitation sent to him.
I am satisfied that under the provisions of ss.425A, 441A(4), 441C(4) and reg.4.35D the Tribunal had power under s.426A to proceed in the manner in which it did. I can see no evidence that its discretion to follow that procedure miscarried.
The Tribunal’s essential reasoning is found at the end of its reasons:
Apart from flimsy and unsupported allegations, the applicant has provided no real detail about his claim to fear harm arising from (his) supposed association with Falun Gong. The applicant has failed to attend his scheduled hearing and present oral arguments and evidence to explain himself and:
§Without the opportunity to question the applicant to ascertain the depth of his personal knowledge of and commitment to the practice of Falun Gong and;
§In light of his failure to provide any documentary evidence to support his claims, and;
§Without the Tribunal being able to question the applicant to ascertain answers to the questions raised through his written claims [and discussed above];
The Tribunal cannot be satisfied, on the evidence before it, that the applicant is a genuine adherent of Falun Gong or that he would face harm in the reasonably foreseeable future upon return to the PRC. The Tribunal cannot be satisfied therefore that the applicant has a well founded fear of harm for reason of his religion [Falun Gong] or for any other Convention reason in the reasonably foreseeable future in China.
Counsel for the Minister referred me to earlier parts in the Tribunal’s decision where it refers to information in the applicant’s visa application about his obtaining of exit documents and travel to Germany in 2003 prior to his travel to Australia. She also referred me to recent authorities concerning the circumstances in which a Tribunal is obliged by s.424A to serve written notice foreshadowing its reliance on adverse information. She conceded that there was no evidence of such a notice being given in this case in relation to that past travel information.
However, I accept her submission that the Tribunal’s references to and comments about this information did not form “an integral part” of its reasoning within the established interpretation of s.424A(1)(a) (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [29‑33], and VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [50‑54]). Its essential reason for affirming the delegate’s decision was its inability to be satisfied as to the truth of the claims made by the applicant due to his absence from the hearing to which he was invited.
Reading the Tribunal’s reasons, I can find no jurisdictional error affecting its decision. In those circumstances the Tribunal’s decision was a privative clause decision for which relief is barred under s.474(1) of the Migration Act (see Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476). I must therefore dismiss the application.
Before making that order I should explain why I have made no reference to submissions made by the applicant. This is because his only document filed in the Court, and his submissions to me today, made only one point: “I am a refugee who meet the refugee criteria”. However, it is not my function to decide that issue.
The applicant had the opportunity to obtain legal advice concerning the nature of the present proceedings from an independent legal practitioner under the free legal advice scheme, but at the first court date he indicated to the Registrar that he did not wish to participate in the scheme. This is unfortunate because it might have led him to better understand the powers of this Court.
As I have explained to him today it is not the function of the Court to decide whether he meets the refugee criteria. Nor is it relevant to my function to consider a second point he made to me. This was that he had been unable to obtain documents from China to support his application for refugee status due, as I understood him, to the risks this would give rise to his family back in China. This explanation might have relevantly been given to the Tribunal if the applicant had attended its hearing, but cannot advance his case before this Court. The applicant essentially had no other points to make to me.
For the above reasons I must dismiss the application.
RECORDED : NOT TRANSCRIBED

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 30 September 2005