SZFCC v Minister for Immigration - [2005] FMCA 1824

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFCC v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1824

MIGRATION – RRT – Chinese Falun Gong practitioner – did not attend Tribunal hearing – no error found.

Migration Act 1958 (Cth), ss.426A, 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Applicant:

SZFCC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3433 of 2004

Judgment of:

Smith FM

Hearing date:

23 November 2005

Delivered at:

Sydney

Delivered on:

23 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms B Rayment

Solicitors for the Respondents:

Sparke Helmore

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 $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3433 of 2004

SZFCC

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) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 29 September 2004 and handed down on 26 October 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 the same as the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth), but is subject to limitations under Part 8 of the Migration Act. These have the effect 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 qualifies for a refugee visa.
The present applicant arrived in Australia in April 2004, and on 20 May 2004 he lodged an application for a protection visa in which he appears to have been assisted by an agent, Mr Yujun Simon Wu. At page 3 of the application form under the heading “Members of the Family Unit Not Included in this Application” reference is made to his wife, and the reason for not including her in his application is "she has her own application".
In two paragraphs of typed insertion, the applicant gave his reasons for claiming to be a refugee:
My wife and I became Falungong member since 1998. After Falungong was banned, we could only practice Falungong secretly. My wife and I also participated in activities to promote Falungong to other people, and the organization of associated activities. I left China in July 2002 for Egypt. We stayed in Egypt for about 16 months and we returned to China. There we continued to practice Falungong and one day, local police rushed in and arrested my wife and I were held at (name) Detention Center. There we were beaten and tormented so as to force us to disclose the details of our organization. We were detained there for four days; we were released on the fifth day for health reasons. Soon as we were released, we bought our tickets to leave China for Egypt because we have the visa to go to Egypt. In Egypt, we could not ask for protection from the government, we knew that soon or later we would have no where to go. So we came to Australia for protection. We hope that Australian government can consider granting us protection visas so we don’t have to return to China, there we would be persecuted because of our involvement with Falungong.
A delegate refused the application on 26 May 2004, and the applicant filed an application for review by the Refugee Review Tribunal on 1 July 2004. The application appointed Mr Wu as his authorised recipient authorised to act on his behalf in relation to the case. It gave Mr Wu's address as the applicant's own mailing address, and also gave a home address at Earlwood.
The application repeated even more briefly the claims which had been included in the original visa application. There was nothing in the application nor in any other communication to the Tribunal which might have suggested to the Tribunal that the applicant requested, or even anticipated, that the Tribunal would receive evidence from another application brought by his wife. So far as the Tribunal was concerned, in my opinion the application he presented would have suggested only that the applicant was making his own independent application to the Tribunal.
By letter dated 30 August 2004 the applicant was informed:
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.
The letter invited him to attend a hearing on 28 September 2004. He was told:
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.
On 9 September 2004 the Tribunal received a "response to hearing invitation form" signed by the applicant's agent which indicated that he did wish to come to a hearing, that he needed an interpreter, and that he did not want the Tribunal to take oral evidence from any witness, nor bring anyone else with him to the hearing.
In its statement of reasons the Tribunal referred to the following history in relation to this invitation:
On 30 August 2004 the Tribunal wrote to the applicant at the address of his authorised recipient which was the applicant’s mailing address, and also at his home address, advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 10 am on 28 September 2004. On 6 September 2004 the letter to the applicant at his home address was returned to the Tribunal marked “Unknown at Address”. On 9 September 2004 the response to the hearing invitation form sent to the applicant was returned to the Tribunal and it advised that the applicant wanted to come to the hearing. However 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.
I can see no error affecting the Tribunal's decision to proceed pursuant to s.426A in the circumstances shown in the evidence before me.
The Tribunal's reasons for affirming the delegate's decision were straightforward. It referred to the untested, unclear and un-detailed claims made by the applicant in his visa application. It said:
It would be expected that some clarification of the above matters and further evidence in support of his claims would be forthcoming from the applicant, either in writing in applications or orally at a hearing if his claims were genuine and could be substantiated. The Tribunal is not satisfied, on the evidence before it in relation to this application, that the applicant has a well-founded fear of persecution within the meaning of the convention.
I can see no error of any sort affecting the reasoning of the Tribunal.
The applicant's original application to this Court does not raise any jurisdictional error. An amended application filed on 8 March makes confused criticisms of the Tribunal's decision. Some of these suggest that the Tribunal made error by finding against the applicant without having more information. However, this confuses the onus which is on an applicant to put forward evidence upon which the Tribunal would be able to be satisfied as to his claims.
The amended application also contains unclear assertions about the applicant's non-attendance at the hearing. In his submissions to me today these have become clearer. His explanation for not attending the hearing was that he did not himself have time to attend. He also said that he thought that his claims had been explained by his wife when she attended a hearing in her own application to the Tribunal and that her evidence would be taken into account by the present Tribunal. He therefore considered that it did not matter if she did not go to the hearing in his case either. In short, decisions were made by him and his wife that neither of them would attend the hearing in his application, of which they were given and received notice.
It is not necessary for me to make a decision on whether this explanation is true. However, assuming that it is, it does not, in my opinion, show the Tribunal failing to perform its duty to give the applicant a reasonable opportunity to attend a hearing and present his case, nor does it reveal any departure from the statutory procedures which the Tribunal was required to follow. I do not consider that the Tribunal’s procedures miscarried because it did not take into account information from the wife's hearing or her application, in circumstances where neither the applicant nor his agent requested that this should happen, and were there is no evidence that it was on notice even as to the existence of an application to the Tribunal by the wife.
For the above reasons, I have not been able to find jurisdictional error affecting the Tribunal's decision and I must therefore dismiss the application.

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

Associate: Iliya Marovich-Old

Date: 9 December 2005