SZFEL and Minister For Immigration
[2005] FMCA 911
•21 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFEL & MINISTER FOR IMMIGRATION | [2005] FMCA 911 |
| 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 reviewable error. |
| Migration Act 1958 (Cth), s.426A Federal Magistrates Court Rules 2001 |
| Applicant: | SZFEL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3564 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21June 2005 |
| Date of Last Submission: | 21 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Ms Burnett Clayton Utz |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent's costs fixed in the sum of $3,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3564 of 2004
| SZFEL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal that was made on 15 October 2004.
The decision was handed down on 4 November 2004.
The decision of the Tribunal was to affirm the decision of a delegate of the Minister not to grant a Protection Visa to the applicant.
The applicant is a citizen of the People's Republic of China. He arrived in Australia on 9 June 2004. On 15 June 2004 he lodged an application for a Protection Visa Class XA Visa. On 17 June 2004 a delegate of the Minister refused his application. On 22 July 2004 the applicant sought a review of that decision from the Refugee Review Tribunal
The applicant attached a brief statement to his application for review, setting out his claim of a well-founded fear of persecution in his home country for a Convention reason.
The basis of his claim is set out in the second paragraph of the statement attached to his application. I will quote it in full:
I am a common Falun Gong practitioner and I began practising Falun Gong in May 1996. However, China's former president, Jiang Zemin, outlawed the peaceful practice in July 1999, fearful of anything touching the hearts and minds of more citizens than the Communist Party. In October 2002 I went to Beijing to appeal for Falun Gong. I was arrested by police at the Tien Jiang train station and then sent to the Tien Jiang detention centre.
I was tortured for more than 60 days. I understand there is no way out for me if I still stay in China. I came to Australia on
9 June 2004.
That statement, attached to the application for review, is little more than a summary of the statement attached to the applicant's original application for a Protection Visa.
The Refugee Review Tribunal wrote to the applicant on
16 September 2004. That letter told the applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.
The letter invited the applicant to attend a hearing of the Tribunal at
10 am on Friday 15 October 2004. The letter told the applicant that he could give oral evidence and present argument in support of his claims. He could also ask the Tribunal to obtain oral evidence from another person or persons.
The Refugee Review Tribunal did not receive any reply to the hearing invitation. When the time came for the hearing, the Tribunal member noted, at page 63 of the Court Book, that the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. The Tribunal made a decision pursuant to
s. 426A of the Act that it would make its decision without taking any further action to enable the applicant to appear before it. It is hardly surprising that the applicant's claim was unsuccessful. He had been told in the letter that the Tribunal was unable to make a finding in his favour based on the material that it had. As the applicant did not attend the hearing or forward any other documents, the Tribunal had no more material on the day of the hearing than it had before.
The Tribunal noted at pages 63 and 64 of the Court Book that:
The applicant's claims are vague, lack detail and are merely assertions. He gives no particulars about why he began practising Falun Gong, where he practised or how often he practised, nor has he provided any details about the circumstances of his alleged arrest or release from detention.
He claims he fears being jailed in China and that he travelled overseas from June 2003 to avoid "prosecution" but does not indicate whether he sought protection in any other country and if not, why not? The applicant claims that he knows he can practise Falun Gong freely in Australia but does not indicate whether he has practised here. Without those details and the opportunity to test the assertions at a hearing, the Tribunal is not prepared to simply accept the applicant's claims. Thus, the Tribunal is not satisfied that the applicant is a Falun Gong practitioner or that he was arrested and tortured in China as he claims.
The Tribunal went on to affirm the decision of the delegate not to grant a Protection Visa.
The applicant filed his application to this Court on 7 December 2004. He claimed the Tribunal member only considered the information which was not in his favour. I might comment that he had not provided any great amount of information to the Tribunal himself. He sought this order:
An order restraining the respondent, by himself or his agent, from removing the applicant from Australia under further order.
Notwithstanding the fact that the only other order sought is an order for costs, I am not prepared to regard the application as only being an application for an interlocutory injunction. I have taken the application to be an application for final orders and I understand those final orders to include an application for an order to set aside the decision of the Tribunal and to remit the application to the Tribunal for a further hearing. The solicitor for the respondent, Ms Burnett, told the Court that she was not taken by surprise by that decision.
The grounds of the application both go to the merits of the claim. Ground one says:
I am a refugee.
Ground two is a very similar statement to the grounds set out in the applicant's original application and the ground set out in the application for review. The applicant says:
I will be prosecuted by Chinese government if I return to PR China. I believe my fear is well-founded because I have been prosecuted by the Chinese government. I am a common Falun Gong practitioner. China's former president, Jiang Zemin, outlawed the peaceful practice in July 1999. In October 2002 I was arrested by police at the Tien Jiang Train Station and then sent to the Tien Jiang Detention Centre. I was tortured for more than 60 days. I had less than four hours of sleep and spent most of the time standing. As a result, my calves swelled so badly that they were bigger than the thigh. I had many blisters on my feet. If I fell to the ground I would be severely beaten. I understand there is no way out for me if I still stay in China.
What is set out in the application is no more than a repetition of the facts upon which the applicant relied in his original application for a Protection Visa and in his application for review to the Refugee Review Tribunal. The applicant is seeking a merits review and has not demonstrated any jurisdictional error. The decision discloses no form of jurisdictional error. This Court has said, on many occasions, that applicant's for a Protection Visa who do not attend a hearing of the Refugee Review Tribunal do themselves a serious dis-service.
The Tribunal wrote to the applicant inviting him to a hearing.
It warned him that it was not able to make a decision in his favour on the information it already had.
The Tribunal gave the applicant nearly four weeks' notice of the hearing date. The applicant neither attended nor sought an adjournment. When asked for an explanation, the applicant at first said that he was sick for ten days. He did not see a doctor but treated himself with Chinese herbal medicines. He then said that in any event he could not read the letter from the Refugee Review Tribunal and had to wait until a friend, who was very busy, could translate the letter for him. By that stage it was too late and the hearing was over.
I am quite satisfied that the applicant did have a copy of the letter for nearly four weeks. I accept the fact that he cannot read English. I find it hard to believe that he did not know that the letter was from the Refugee Review Tribunal. The letter appears to be on Commonwealth of Australia letterhead with a Coat of Arms. One does not have to be able to read English to identify a Coat of Arms on a letter. It was quite clearly a letter from the Government even if the applicant did not understand what it said.
To take no steps to have that letter translated for four weeks or more appears to be gross negligence. The applicant was given a chance to present his case to the Tribunal. The applicant let that chance slip and the Tribunal was forced to decide his case under s.426A of the Migration Act without the benefit of any further information from the applicant except the rather flimsy information that he had already provided.
The applicant has not demonstrated any reviewable error.
The application will be dismissed.
The applicant has not been successful. This is a matter where it is appropriate for the Court to make an order that the applicant pay the respondent's party and party legal costs. The Minister seeks the sum of $3,200.00. In my view, this is a very generous figure and it is well within the range envisaged by the Federal Magistrate Court Rules. The respondent can hardly be accused of presenting an exorbitant claim for costs; quite the reverse in my view. It is a modest sum, which, as I have said, is well within the range.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 29 June 2005
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