SZFHS v Minister for Immigration
[2005] FMCA 1914
•30 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFHS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1914 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China – where applicant elected not to attend the RRT hearing. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.426A, 474. |
| NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20 of 2002 (2003) 198 ALR 59 S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZFHS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3723 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 November 2005 |
| Date of Last Submission: | 30 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2005 |
REPRESENTATION
| The Applicant: | No appearance |
| Solicitors for the Respondent: | Ms McNamara Phillips Fox |
ORDERS
That the Refugee Review Tribunal be joined as Second Respondent to the proceedings.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,910.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3723 of 2004
| SZFHS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was made on 4th November and handed down on
2nd December 2004, after a hearing scheduled for 21st October 2004. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant the applicant a protection visa.
The applicant is a citizen of the People's Republic of China. He arrived in Australia on 16th May 2004 and on 29th June lodged an application for a protection class XA visa. That application was refused on
6th July 2004 and on 2nd August 2004 the applicant applied for a review of that decision.
The Tribunal wrote to the applicant inviting him to attend the hearing of the Tribunal. That letter was dated 20th September 2004. The letter informed the applicant that the Tribunal hearing would take place at 10.30 am on Thursday, 28th October 2004. The letter made it quite clear that the Tribunal had considered the material before it in relation to the applicant's application but was unable to make a decision in his favour on that information alone.
The applicant chose not to attend the hearing. He forwarded a response to hearing invitation to the Tribunal which was dated 28th September. It appears to have been received from a rather indistinct stamp on
1st October. In that he placed a cross in the box besides the words:
No, I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
The Tribunal on the hearing date proceeded to consider the application on the basis of the material which it had. The Tribunal noted that the applicant was 37 years of age and had come to Australia on a Chinese passport on a temporary business visa. He claimed to have come from a poor background and learned from an old couple the practice of Falun Dafa, which is also I understand known as Falun Gong. He said that he decided to practice Falun Dafa and he found that that assisted him to recover his health. After Falun Dafa was denounced as evil by the Chinese government he said that he was detained in a police station for two days but he kept practising Falun Dafa. He said he was arrested again and “excruciated nearly two weeks”. Presumably he means that he was either detained or tortured. He said that his wife told him that he was lucky to leave China because some of his friends were arrested by lots of policemen and they were “excruciated without humanity in jail”. I can assume that he means torture in this context.
The Tribunal considered the matters that it was required to consider. The Tribunal noted at page 65 of the Court Book that the applicant had a Chinese passport and accepted that he was a citizen of the People's Republic of China. The Tribunal noted that the delegate's decision had put the applicant on notice as to the deficiencies in his application but no further evidence has been received. The Tribunal found that the applicant's claims were general and lacking in detail. The Tribunal had difficulty working out what was meant by "excruciated" but I consider that it means torture, as I said earlier.
The Tribunal found that the applicant had not provided sufficient evidence to support his assertion that he was a Falun Gong practitioner. The Tribunal was not satisfied that he is a genuine and sincere Falun Gong practitioner as claimed. The Tribunal was not satisfied that the applicant was arrested and detained or forced to report to police. The Tribunal was not satisfied that he would have a well-founded fear of persecution if he were to return to the People's Republic of China and could not accept that the applicant would have a well-founded fear of persecution for a Convention reason upon his return to China.
It was as a result of those findings that the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
I note that the applicant is not legally represented, indeed he is not here.
I have made my own investigation of the file and I am unable to see a jurisdictional error. The applicant had sought a writ of certiorari and a writ of mandamus. He has given four grounds, or particulars, to be more correct. First, the applicant said that he did not collect relevant documentary evidence to prove his persecution because he had no-one to help him collect that document. That is not a ground for judicial review. The applicant claimed the Tribunal's satisfaction that he was not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief. In my view, the failure by the applicant to provide any relevant information to the Tribunal would allow the Tribunal to find that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
Third, the applicant claims the Tribunal did not observe the Migration Act 1958 properly, but provides no details as to which section of the Act the Tribunal failed to observe. I cannot see any breaches of the Migration Act and this ground must also fail. Finally, the applicant said that the Tribunal failed to provide evidence and materials to justify the Tribunal's decision. It is not up to the Tribunal to provide evidence that shows that it is not satisfied that the applicant has made out his case.
I have had the opportunity of reading a very helpful outline of submissions by Ms McNamara, solicitor, who appears for the respondent Minister. She refers to the applicant's original application filed on 22nd December 2004, his amended application filed on
11th April 2005 and the further amended application filed on
28th April 2005.
I note that the solicitor for the respondent refers to the decision of Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20 of 2002 (2003) 198 ALR 59 where some members of the High Court expressed some support for logicality as a ground of review. The utility she submitted of logicality is limited. In NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [29] and [30] the Full Federal Court held that there was nothing in the remarks of the High Court in S20 (supra) which would warrant a departure from the earlier line of decisions in the Federal Court to the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error.
The RRT's decision record shows that the RRT looked at each of the applicant's claims; it understood each of those claims and as against each of the claims made findings that were open to it on the material for it and gave reasons for those findings. No illogical or irrational foundation is apparent in this case.
The respondent submits with some force, in my view, that it was open to the RRT to reach its decision on the limited evidence before it. It did not rely on any independent country information. It merely relied on the applicant's evidence, sparse though it was. The respondent also submits that the applicant's election not to attend the hearing denied the RRT the opportunity to explore his claims with him. Also, the applicant provided vague details in support of his claim and provided no further evidence to support his claims. I am referred to the decision of the Full Court of the Federal Court in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 where the Full Court held at [26]:
In our view, the appellant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about his claims and to put forward the documents upon which he relied. He cannot complain that his application was rejected because, amongst other things, he failed to take up that opportunity.
The respondent submits, rightly in my view, that the discretion under s.426A of the Act was properly exercised by the RRT.
I am satisfied that no jurisdictional error is revealed in the Tribunal's decision. There is no reviewable error. The decision is a privative clause decision which attracts the protection of s.474 of the Migration Act.
The application is dismissed.
There is an application for costs. Costs usually follow the event in this jurisdiction and, in my view, there is nothing to show why I should not make an order for costs in favour of the respondent. By "respondent", I mean the first respondent, the Minister. To comply with the decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 I do of course join the Refugee Review Tribunal as a party.
The applicant is to pay the first respondent's costs fixed in the sum of $2,910.00.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 13 December 2005
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