SZFHT v Minister for Immigration

[2005] FMCA 1205

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFHT v MINISTER FOR IMMIGRATION [2005] FMCA 1205

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958, ss.425, 426A & 474

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA FC 225
Dranichnikov v Minister forImmigration&MulticulturalAffairs (2003) 197 ALR 389

Applicant: SZFHT

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3742 of 2004

Judgment of: Barnes FM

Hearing date: 9 August 2005

Delivered at: Sydney

Delivered on: 9 August 2005

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr D Jordan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the Tribunal be joined as the second respondent. 

2. That the application is dismissed. 

3. That the applicant pay the first respondent's costs fixed in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3742 of 2004

SZFHT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 23 November 2004, affirming a decision of delegate of the respondent not to grant the applicant a protection visa.

2. The applicant is a citizen of the Peoples Republic of China who arrived in Australia in May 2004 and applied for a protection visa in June 2004.  In a statement attached to his protection visa application he claimed to fear persecution in China because he was a practitioner of Falun Gong.  He claimed that his father had been arrested and interrogated, that his mother had been fired and that he had been advised by the leaders of his company to stop working and give up exercising Falun Dafa.  They tried to persuade him to make up stories against Falun Dafa.  He claimed that he had been arrested by the police without any evidence and that after his release he had to report to them and that the family was staked out by police. 

3. The application was refused by a delegate of the respondent and on

   
   

   2 August 2004 the applicant sought review by the Tribunal.  In his review application he stated that he would provide more evidence to prove his claim to be a genuine refugee.  However no further evidence was provided to the Tribunal by the applicant or his adviser.

4. The Tribunal wrote to the applicant on 3 August 2004 acknowledging receipt of his application, advising him that a hearing may be scheduled and asking him to send any documents, information or other evidence he wanted the Tribunal to consider. On 20 September 2004 the Tribunal wrote to the applicant and to his adviser at the address provided for service in the review application. In that review application no home address had been provided for the applicant, but the Tribunal also sent a copy of the letter to the last notified home address. The letter of 20 September 2004 notified the applicant that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in the applicant’s favour on that information alone. It invited him to attend a hearing to give further evidence, and present argument in support of his claims pursuant to section 425(1) of the Migration Act 1958.

5. On 1 October 2004 the Tribunal received the applicant's response to the hearing invitation which in response to the question “Do you want to come to a hearing?” marked the box “No, I do not want to come to a hearing” and that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow him to appear before it.

6. Accordingly, the Tribunal proceeded to consider the applicant's claims without conducting a hearing.  It found the applicant’s claims to be general and lacking in detail.  It gave particulars of areas which were lacking in detail or lacking clarity.  It noted that although the applicant had been informed by the Tribunal that on the evidence to date it was unable to accept his claims, he had not provided any further evidence to support his claims or availed himself of the opportunity to give evidence and make submissions at a hearing.

7. The Tribunal found that as the applicant had not provided sufficient evidence to support his assertion that he was a Falun Gong practitioner it was not satisfied that he was a genuine and sincere Falun Gong practitioner as claimed.  Accordingly, it was not satisfied that he or his father were arrested and interrogated, forced to report to police or that his mother was fired.  It was not satisfied and did not accept that he had a well founded fear of persecution for a Convention reason should he return to the Peoples Republic of China.

8. The applicant sought review of the Tribunal decision by application filed in this court on 22 December 2004.  He relies on an amended application filed on 14 March 2005.  No written submissions have been filed by the applicant. 

9. Ground 1 of the amended application asserts that the Tribunal made a jurisdictional error.  There are no particulars and this generalised assertion does not establish a jurisdictional error, either taken alone or, as I shall explain, in conjunction with any or all of the subsequent grounds.

10. Ground 2 contends first that the decision was induced by actual bias.  There is no basis for such a contention.  There is nothing in the material before me to support a claim that there was actual bias arising out of pre-judgment in the sense considered by the High Court in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 178 ALR 421 at 72 or, indeed, although the allegation is not put in those terms, that apprehended bias is established on the material before the Court.

11. The Tribunal properly gave the applicant an opportunity to attend a hearing.  Its reasons indicate that, far from having prejudged the matter, it had issues and questions to put to the applicant in relation to the details of his claims but was unable to do so because the applicant chose not to attend a hearing.  No bias is established.

12. This ground also claims that there were not ‘materials or evidence to justify the decision’.  There was limited material before the Tribunal.  However the Tribunal decision was open to it on such material, consistent with the approach taken by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16] – [17].

13. As the Court stated at [17]:

    As section 65 and Wu Shan Liang make clear the section requires a visa to be rejected in the absence of a positive finding of satisfaction.  It does not require the visa to be granted in the absence of an adverse finding. 

    Indeed, their Honours went on to say that:

    There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction.

14. Their Honours referred with approval to the approach of the Full Court in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA FC 225, in which the Full Court had upheld the approach of the Tribunal in finding that an applicant's claims were at such a general and vague level that the Tribunal could not establish the relevant facts and, therefore, made no findings either accepting or rejecting the claims. 

15. In this instance the Tribunal found that the applicant had not provided sufficient evidence to support his assertion that he was a Falun Gong practitioner. Given that the applicant had declined the invitation to attend a hearing and failed to provide any further evidence despite being warned that the existing material was insufficient, the Tribunal was entitled to reach the conclusion as to a lack of satisfaction that it did reach. Moreover, the Tribunal was entitled to proceed to a decision without taking any further action to allow the applicant to appear before it pursuant to sections 425 and 426A of the Migration Act 1958.

16. Grounds 3 and 4 of the amended application take issue with the merits of the Tribunal decision.  It is contended that the Tribunal did not know the situation in China and did not refer to proper independent country information.  Such claim does not establish jurisdictional error in circumstances where the applicant failed because of the generality and lack of detail in his claims and the consequential inability of the Tribunal to be satisfied that he was a Falun Gong practitioner as claimed. 

17. Ground 4 claims, in effect, that the Tribunal failed to exercise its jurisdiction as it failed to prove that the applicant would not be persecuted on his return to China or to provide evidence to justify its decision.  However, as set out above, it is not for the Tribunal to prove that the applicant would not be persecuted.  Rather as indicated by Kirby J in Dranichnikov v Minister forImmigration&MulticulturalAffairs (2003) 197 ALR 389, the function of the Tribunal is to respond to the case that the applicant advances. It did so in this instance. Consistent with VSAF the Tribunal decision turned on a lack of satisfaction on the evidence before it.  No jurisdictional error is established in the manner contended.

18. Ground 5 states that the Tribunal refused the application because the Tribunal suspected all claims were fabricated.  The Tribunal did not make any adverse credibility findings and this ground does not establish a jurisdictional error on the material before the Court. 

19. Ground 6 states that the applicant needs an opportunity to clarify the details of his activities with Falun Gong.  Insofar as the applicant seeks an opportunity to obtain evidence to address the lack of detail identified by the Tribunal, such evidence would not be relevant or assist the Court to determine whether the Tribunal's decision was affected by jurisdictional error.  More pertinently, the applicant had the opportunity to provide further evidence to the Tribunal.  Indeed it is clear from his review application that the applicant understood from the delegate's decision the need to provide further evidence.  He stated that he would provide more evidence.  He did not do so, despite the invitation being repeated and despite the invitation to a hearing.  No error is established by this ground or by any of the other grounds in the amended application considered individually or in combination. 

20. The applicant reiterated aspects of his grounds in oral submissions.  As counsel for the respondent submitted, such reiteration indicated in a large part that the applicant misunderstood the basis for the Tribunal decision which was that in the face of general and undetailed claims, the Tribunal was unable to be satisfied that he was a Falun Gong practitioner as claimed. 

21. As I have indicated above, the Tribunal findings were open to it on the material before it.  No error is apparent in its approach.  As no jurisdictional error has been established the decision is a privative clause decision to which s.474(1) of the Act applies and the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.  The amount sought is appropriate. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  23 August 2005