SZFCW v Minister for Immigration - [2005] FMCA 569

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFCW v MINISTER FOR IMMIGRATION

[2005] FMCA 569

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 people's Republic of China – claim to have well-founded fear of persecution as a Falun Gong practitioner – where the applicant did not attend the RRT hearing – where the applicant failed to attend Court.

PRACTICE & PROCEDURE – Summary dismissal – where application discloses no cause of action – applicant made no claim except that the decision was "unfair" – applicant filed no amended application or affidavit.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A
Federal Magistrates Court Rules 2001, Rr.13.03; 13.03A; 13.10

Applicant:

SZFCW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3478 of 2004

Judgment of:

Scarlett FM

Hearing date:

19 April 2005

Date of Last Submission:

19 April 2005

Delivered at:

Sydney

Delivered on:

19 April 2005

REPRESENTATION

The Applicant:

No appearance

Counsel for the Respondent:

Ms Burnett

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed pursuant to Rule 1303(2) as the applicant has failed to file an amended application or affidavit as ordered by the Court.
That the application is dismissed pursuant to Rule 13.03A(c) as the applicant had absented himself from the hearing.
Leave to proceed ex parte.
That the application is summarily dismissed pursuant to Rule 13.10 as the application does not disclose a reasonable cause of action.
That the Applicant is to pay the Respondent’s costs fixed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3478 of 2004

SZFCW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal that was made on 30 September 2004, and handed down on 26 October 2004. The decision of the Tribunal was to affirm the decision not to grant a protection visa to the applicant.
The background to this matter is that the applicant is apparently a citizen of the People’s Republic of China. He arrived in Australia on

3 May 2004. On 2 June he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 10 June 2004 a delegate of the Minister refused to grant a protection visa. On 15 July 2004 the applicant sought a review of that decision by the Refugee Review Tribunal.
In the applicant’s original application he provided a letter setting out that he was born in China on 30 May 1964. He said the Director of the company where he worked introduced him to the practice of

Falun Gong. He went to a meeting being held in a square. In about 1995 obtained a book called Zhuan Fa Lun, and became interested in the practice of Falun Gong.
He said that in 1999 the Chinese Communist Party expressed fears that the practice of Falun Gong would be harmful, and the Government prohibited people from practising Falun Gong. He said that torture, genocide, and other crimes against humanity, were carried out to crack down on Falun Gong activities. He went into hiding. He said that on

3 December 1999 many policemen came, and took a number of

Falun Gong practitioners into custody.
He was lucky enough not to be arrested, but he became homeless.

He hid himself in a friend’s home, and in April of 2004 his family obtained a visa for him to travel to Australia. He said that he feared persecution if he returned to China, because he would never give up the practice of Falun Gong because it was his right.
On 16 July 2004 the Refugee Review Tribunal wrote to the applicant advising him that the Tribunal had received his application.

On 10 September the Tribunal wrote to him, and pursuant to s.425 of the Migration Act advised him that it had considered all of the material before it relating to the application, but was unable to make a favourable decision on that information alone. The Tribunal invited him to attend a hearing to give oral evidence and present arguments on 27 October 2004.
The Tribunal also advised the applicant that if he did not attend the hearing, and the hearing was not postponed, that the Tribunal would make a decision without further notice. The applicant did reply.

On 28 September he informed the Tribunal that he did not wish to come to the hearing. He consented to the Tribunal proceeding to make a decision on the review without taking any further action.
The Tribunal proceeded to deal with the matter on the papers in the absence of the applicant. The Tribunal member commented on page 71 of the Court book that all that the applicant had done was merely to assert that he was a Falun Gong practitioner who had suffered ill treatment. The applicant did not provide any evidence supportive of his claims. He did not attend the hearing, despite the fact that he was put on notice that on the basis of the available information the Tribunal could not make a favourable decision on that material alone.
The Tribunal went on to say that without further details, or corroborative evidence, and without the opportunity to explore the applicant’s claims at a hearing, the Tribunal could not be satisfied that he was a Falun Gong practitioner, nor could the Tribunal be satisfied that he was detained and had to go into hiding.
The Tribunal therefore could not be satisfied that the applicant had suffered any Convention-related harm, or that there was a real chance of such harm occurring to the applicant in the reasonably foreseeable future. The Tribunal was not satisfied that the applicant had a

well-founded fear of persecution for a Convention-related reason, and affirmed the decision not to grant a protection visa.
The applicant lodged an application under the Judiciary Act and the Migration Act on 26 November 2004. He set out his claims and his grounds in that application. I will quote them verbatim:
I think RRT hasn’t given me a fair chance. In his ‘invitation for a hearing’ letter RRT didn’t assure me that they won’t detain me or I will be mistreated. From my own experience I think being ‘invited’ by RRT is not a good sign as I have heard that someone has been detained from the interview room. It is the fear that’s hanging in my mind stopped me from going. However, I have always prepared to provide all details for any specific event should the officer asked.
Due to the difficulties in language and financial problems which made me be unable to find legal advice, I have to do everything by my own understanding. I don’t know the law; neither do I know how DIMIA or RRT should have processed my application. I just think that the strong fear in my mind will never go away from me and I need protection.
The applicant attended Court on the first return date in person with a Mandarin interpreter. On 10 December 2004, when the matter was before the Court, Registrar McIllhatton listed the proceedings for hearing before me at 10.15 am today.
The Registrar made orders by consent relating to the filing and serving the bundle of relevant documents, ie. the Green Book, by 18 January 2005. That appears to have been complied with. The applicant was also ordered to file and serve any affidavit containing additional evidence relied upon, and file and serve an amended application giving complete particulars of each ground of review relied upon by

28 February 2005 in each case. The applicant does not appear to have done either of those things.
The short minutes of order did say that if the applicant did not comply with order 3, about filing and serving an amended application, the respondent may request the Registry to list the matter in a non-compliance list before the Docket Federal Magistrate, with the intention of applying for summary dismissal. That does not appear to have been done, due no doubt to the relatively short period of time from the first return date until the hearing date today.
The applicant was referred to a legal practitioner as part of the RRT Legal Advice Scheme. The applicant was referred to one Shaun Kerrigan, Barrister of Selbourne Chambers in Sydney, and received legal advice on 14 February this year.
The applicant has not attended Court today. The applicant was called three times outside the Court, initially at 10.15 am when the matter was listed for hearing, and again at 10.45 am. I am informed by Ms Burnett for the respondent, that neither she, nor anyone else amongst the respondent’s legal advisers, has received any message from the applicant indicating any difficulty that he had in attending Court today.
I have made inquiries from my own staff as to whether any telephone message, or fax message, or any other message, had been received from the applicant, or someone on the applicant’s behalf, indicating that he was ill, or injured, or somehow delayed, or unable to attend Court. No such message has been received.
I have also made inquiries through my staff to ascertain whether the applicant, or anyone on his behalf, had mistakenly gone to the Court premises in Queen’s Square, instead of coming to this Court. No such information has been received.
I am satisfied that the applicant has not attended Court today.

I am satisfied that on levels 6 and 7 where the Federal Magistrates Courts are located in this building there are notices not only in English, but also clearly written in Chinese, advising people who are applicants as to where they should attend. There has been no attendance by the applicant, and I consider it unnecessary to delay these proceedings any further.
I do not propose to adjourn these proceedings, and indeed I have embarked on a final hearing. It is quite clear that the application must be dismissed. The applicant has not attended. The applicant has not complied with the directions of the learned Registrar. The application does not disclose a reasonable cause of action. The applicant’s claim that the RRT has not given him a fair chance is simply wrong. I see no indication of any unfairness, or failure to grant procedural fairness, or failure to apply the rules of natural justice.
The Tribunal wrote to the applicant, and told him that the Tribunal was not able to make a favourable decision based on the scant information in his application, and invited him to attend the hearing of the Tribunal to give evidence, present evidence, and present arguments as to why his claim should be granted. The applicant chose not to attend.
His claim that from his experience at an invitation from the Refugee Review Tribunal is not a good sign, and that he feared being arrested, is quite simply wrong. It may well be that someone coming from a country that does not have a strong regard for human rights that Australia has, may have some paranoid fear that he or she might be arrested. But any rumours that people come to unfavourable attention by attending a hearing of the RRT is not only wildly incorrect, but does the Refugee Review Tribunal, an independent body, a serious disservice.
I have said before that applicants who do not attend hearings of the Refugee Review Tribunal without good reason do not do themselves any favour at all. Quite the reverse. It causes serious, and at times irreparable harm to their case. There is no reviewable error. The application shows no reason why the application should be granted. The application will be dismissed with costs.

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: 2 May 2005