SZFFQ v Minister for Immigration - [2005] FMCA 973

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFFQ v MINISTER FOR IMMIGRATION

[2005] FMCA 973

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 who claims to be a Falun Gong practitioner – where the applicant did not attend the RRT hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.426A, 475

Applicant:

SZFFQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3629 of 2004

Judgment of:

Scarlett FM

Hearing date:

17 June 2005

Date of Last Submission:

17 June 2005

Delivered at:

Sydney

Delivered on:

17 June 2005

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the Respondent:

Phillips Fox

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3629 of 2004

SZFFQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal.
The decision was made on 26 October 2004 and handed down on 16 November 2004.
The decision of the Tribunal was to affirm the decision of the 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 14 May 2004. On 10 June 2004 he applied for a protection visa, claiming to have a well-founded fear of persecution as a practitioner of Falun Gong. In a statement attached to his application the applicant described himself as a factory worker who had worked for the same company from 1977 to 2003. He said that he had no dependents and no religion. He also said that he was a normal Falun Gong practitioner who had started practising in December 1997 to improve his health by cultivating Dafa through truthfulness, compassion and tolerance.
On 16 June 2004 a delegate of the respondent Minister refused his application for a visa. On 16 July the applicant lodged an application for review with the Refugee Review Tribunal.
The Tribunal invited the applicant to give oral evidence. The Tribunal did this through a letter dated 14 September 2004. The letter said:
That the Tribunal had considered the material before it in relation to his application but was unable to make a decision in the applicant's favour on that information alone.
The letter invited the applicant to:
Attend a hearing at 1 pm on Monday 25 October 2004. At the hearing the applicant would be able to give oral evidence and present arguments in support of his claims.
He was told that he could also ask the Tribunal to obtain oral evidence from another person or persons although he was warned that the Tribunal did not have to get evidence from any person that he named. No reply to that letter was received. The applicant did not attend the hearing on 25 October. He did not contact the Tribunal to explain his failure to attend. He told the Court today that he had received the letter and a friend had translated it for him. He said he could not remember all of the contents of the letter as it was too long ago. I note the letter is dated 14 September 2004 and today's date is the 17 June 2005.
The applicant said today that he did not attend because he had hurt his leg and needed hospital treatment. He also said that his knowledge of the English language was not as good then as it is now. The applicant did not seek an adjournment, he just did not attend. It is quite fair to say that this was a very serious mistake.
The applicant knew or ought to have known that the Tribunal considered that it was unlikely to be able to make a decision in his favour just based on his written material. That is why the Tribunal invited the applicant to attend the hearing. The applicant was being given the opportunity to attend the hearing and give evidence and tell the Tribunal about his case. He chose to let that opportunity go by. He did not even tell the Tribunal that he was not coming. He just did not attend.
It is hardly surprising that the Tribunal decided to go ahead to make its decision by reviewing the papers without taking further action to enable the applicant to appear. The Tribunal has this power under

s.426A of the Migration Act. In the circumstances, I am satisfied that the Tribunal member exercised this power appropriately.
The applicant seeks a review of that decision. He filed an amended application asking if the decision of the Refugee Review Tribunal should be set aside. He says that the decision involved an important exercise of the power conferred by the Migration Act and regulations. The applicant was correct when he described the decision in that way. Unfortunately, the applicant decided not to attend the hearing so that he could help the Tribunal exercise the power given to it.
The Tribunal had already told the applicant that it did not consider it could make a decision in his favour based on that written material that had already been before the Tribunal. Knowing that fact, the applicant chose not to attend the hearing. There appears to be no evidence that he even provided any further written material in support of his case. It is hardly surprising that the Tribunal did not change its mind.
All the applicant has done is file another application and set out his claims again. He may have been able to persuade the Tribunal that his claims were genuine. He gave an account of police from the Handan station climbing over the wall and breaking into his home in June 2002. He said that he was detained from June 2002 until March 2003. He said that he was taken to a detention centre in Hebei. He said that he was tortured there over a period of two months. He said that he was subjected to torture including scalding, kicking, electric shock and beatings. He said that he was dragged on the ground and his clothes were torn. He said he was forced to stand from 6 am to midnight or even 3 o'clock in the morning for more than a month. He said that his jail term was increased by two months. He said that sometimes he was beaten so badly he could not look after himself. As a result, other Falun Gong practitioners had to carry him to the toilet. Eventually, in March 2003, he was released from detention. He said that he obtained a passport and a visa to Australia.
I note that the passport was issued on 20 November 2002. According to the applicant, at that stage he was being held in the Hebei Detention Centre with other Falun Gong practitioners. It is surprising that he was able to obtain a passport while he was being held in a detention centre.
The purpose, however, of judicial review, is not to reconsider an application on the facts. The purpose of judicial review is for a Court to see whether any jurisdictional error has occurred. It does not appear to me on a perusal of the facts, that the applicant has been subjected to a denial of procedural fairness or a denial of natural justice. He was given the opportunity to attend the Refugee Review Tribunal to put his case but he chose not to attend. He chose not to forward any further material. He let the Tribunal rely on the information that it already had knowing that the Tribunal had already said that this information was insufficient to make a decision in his favour.
The applicant has filed an application in this Court which does nothing except set out his claims again and ask that the decision of the Refugee Review Tribunal should be set aside. He provides no grounds as to why this step should be taken. I have read the decision myself and considered the applicant's application. I am unable to see any jurisdictional error in the Tribunal's decision. I propose to dismiss the application.
I note that the applicant was given legal advice free of charge from a lawyer from the panel who give legal advice as part of the Refugee Review Tribunal Pilot Legal Advice Scheme. The applicant told the Court the lawyer had told him, in consultation – the applicant told the Court that the lawyer said his application was doomed to fail. Nevertheless, the applicant has proceeded with the application and filed an amended application which still sets out no grounds for review.
The prediction by the lawyer who gave the applicant legal advice that his application was doomed to fail, has turned out to be correct. I have said on many occasions that applicant’s who choose not to attend the hearing of the Refugee Review Tribunal when they are given that opportunity by the Tribunal, do their case serious harm. In many cases the harm is so great that the applicant's almost assure that their applications will be unsuccessful. This is one such case.
The fact is, sir, that your application has been unsuccessful. The application did not show any grounds for review by the Court and your decision not to attend the Refugee Review Tribunal was a very serious mistake indeed. You were advised some months ago that your application was doomed to fail but you chose not to accept that advice. Unfortunately, you must now face the consequences of those decisions.
I note the respondent seeks costs in a lump sum of $3200 which I presume is calculated on a party and party basis. Notwithstanding the fact that the applicant's insistence in proceeding with this case after he was advised by a lawyer that it was doomed to fail has rendered him liable to face an application for costs on an indemnity basis, I propose, in the circumstances, to award party and party costs only. The amount that is sought by the Minister's lawyers is a lump sum of $3200. From my knowledge of this case and by knowledge of the costs schedule to the Federal Magistrates Court Rules I am satisfied that the lump sum sought is a very modest sum and one which I have no hesitation in awarding.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 12 July 2005