SZFBW v Minister for Immigration

[2005] FMCA 638

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFBW v MINISTER FOR IMMIGRATION [2005] FMCA 638

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of the People's Republic of China – where applicant did not attend the RRT hearing – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.475A, 477

Kioa v West (1985) 159 CLR 550
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32
SJSB v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215

Applicant: SZFBW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3420 of 2004

Judgment of: Scarlett FM

Hearing date: 3 May 2005

Date of Last Submission: 3 May 2005

Delivered at: Sydney

Delivered on: 3 May 2005

REPRESENTATION

The Applicant: Appeared in person

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3420 of 2004

SZFBW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of the decision of the Refugee Review Tribunal.  The decision was made on 27 September 2004 and handed down on 20 October 2004.  In that decision the Tribunal affirmed a decision of a delegate of the Minister not to grant a protection visa to the Applicant.

2. The Applicant is a citizen of the People's Republic of China.  He arrived in Australia on 27 April 2004.  On 6 May 2004, he applied for a protection class XA visa.  On 12 May 2004, a delegate of the Minister refused his application.  On 16 June 2004, the Applicant lodged an application with the Refugee Review Tribunal.

3. On 16 August 2004, the Tribunal wrote to the Applicant and advised him that it had considered all of the material before it relating to his application.  The letter went on to say that the Tribunal was unable to make a favourable decision based on that information alone.

4. The Tribunal invited the Applicant to attend and give evidence at a hearing on 16 September 2004.  The Applicant did not attend the hearing.  He told the Court today that he was in poor health at the time.  When asked why he did not seek an adjournment of the hearing, he said that it did not occur to him.

5. The Tribunal went on to consider his application based on the material before it.  On 27 September 2004, the Tribunal affirmed the decision of the delegate of the Minister.

6. The Applicant is 48 years of age.  He is married and has one son.  His wife and son still live in China.  The Applicant lived in Haerbin City from April 1984 until he left China in April 2004.  He was employed at the post office in that city until 2003.  He was issued with a passport on 3 November 2003 and obtained a visa on 13 April 2004.

7. The applicant is a Falun Gong practitioner.  He started that practice early in 2001 because he believed it was good for his health.  He was aware that the Chinese government had outlawed the practice of Falun Gong in 1999.

8. In September 2001, the Applicant travelled to Tiananmen Square to practice Falun Dafa exercises.  He was arrested and he was sent to the Haerbin City labour camp.  He remained in the labour camp during the following year.  He said that he suffered all sorts of unfair treatments and assaults on both his body and his mind.  He said that most of the other detainees were general criminals.  He said that Falun Gong practitioners kept in labour camps were not released until they had had a so-called "stable period" of at least three months after they were "transformed".

9. The Applicant said he refused to be transformed.  He said that he was stripped naked and tied to a bed.  He was gagged with rags and bound by the mouth to prevent him from shouting.  He said sometimes policemen used electric batons of several hundred thousand volts to shock all sensitive parts of his body.  He said that this torture would last for hours, or even days, until he could no longer bear it.  During the year that he was in the labour camp his chest constantly felt hurt and numb and he could not breathe freely.  He said that his body had almost been ruined.

10. Eventually he wrote a so-called "pledge" or "statement" under threats of terror, violence and torture.  He was later released from the labour camp.  He said there are no human rights in China and he would be put in gaol again if he were to restart practising Falun Gong.  He will not give it up because there is nothing wrong with it.  Eventually his father suggested he should bribe a government officer so that he could obtain a passport and leave for Australia.

11. Based on the evidence before it, the Tribunal did not accept that the Applicant held a genuine fear of persecution, at least one that was well-founded.  The Tribunal said that the Applicant has not produced any supporting evidence in regard to his claims.  He produced no evidence as to whether he was charged with any offence in relation to the alleged detention.  He had not provided specific dates in relation to any of his claims, except that in September 2002 he was arrested in Beijing.  He did not provide any date in relation to his release from detention.  He has not provided any medical evidence to support his claim that he was tortured and that his health has deteriorated.

12. The Tribunal was not satisfied that the Applicant was arrested and detained as he claimed.

13. The Applicant filed his application on 23 November 2004.  He said that he did meet the refugee criteria for the reason that he belonged to a particular social group, Falun Gong, and that he had a well-founded fear of persecution.  The Applicant did not file any amended application or affidavit in support.

14. The solicitors for the Respondent have filed written submissions.  The Respondent points out that it is for the Applicant to make out his claims and cites the authority Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, at [556].

15. The Tribunal is not under an obligation to inquire or otherwise obtain any further information about the Applicant's case.  I was referred to Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) HCA 32, at [43], and Kioa v West (1985) 159 CLR 550.

16. The Respondent pointed out that the Applicant did not attend the hearing. The Respondent also pointed out that due to the paucity of evidence and the lack of particulars provided by the Applicant to substantiate his claims, the Tribunal was unable to reach the satisfaction required by section 65(1) of the Migration Act for the grant of a protection visa. The Tribunal was therefore compelled to affirm the decision under review, and I refer to SJSB v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 at [15].

17. The Applicant did not attend the hearing because he said that he was in poor health, but it did not occur to him to seek an adjournment.  The Applicant had received the letter inviting him to the hearing.  That letter pointed out that the Tribunal was unable to make a favourable decision based on that material alone.

18. The Applicant said that he does not read English and he did not ask anyone to translate the letter for him.  Had he done so, it would have been very clear that it was important for him to attend the hearing and give oral evidence.  I have commented on numerous occasions before that Applicants who do not attend the hearing of the Refugee Review Tribunal do themselves a great disservice.  They make it very difficult for the Tribunal to make a decision in their favour.

19. I have considered the decision independently to ascertain if any jurisdiction or error appears.  I am aware that the Applicant is not legally represented and that he does not speak English very well.

20. On my reading of the decision, I cannot see any jurisdictional error.

    
    

    I cannot see any denial of natural justice or indeed any unfairness to the Applicant at all.  The Applicant may well have been too ill to attend the Refugee Review Tribunal hearing. The Tribunal may well have granted him an adjournment if he had contacted the Tribunal and explained about his illness.  The Tribunal could hardly have given the Applicant an adjournment if he did not ask for one.

21. There is no jurisdictional error.  The application will be dismissed

22. The Applicant has been unsuccessful in his case.  The Respondent's lawyers seek an order for costs.  The Applicant points out that he does not have any money, but that is not of itself a reason not to make a costs order.  This is a problem out of the costs. 

23. The Federal Magistrates Court usually fixes costs in a lump sum, and I note that the amount that the Respondent seeks is the sum of $2500.  This amount is well within the range envisaged by the scale and I propose to make that order.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  13 May 2005