SZFIN v Minister for Immigration

[2005] FMCA 550

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIN v MINISTER FOR IMMIGRATION [2005] FMCA 550

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

Migration Act 1958

Saadik v Minister for Immigration & Multicultural Affairs [1999] FCA 825

Applicant: SZFIN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG3771 of 2004

Judgment of: Barnes FM

Hearing date: 22 April 2005

Delivered at: Sydney

Delivered on: 22 April 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Nil

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs fixed in the amount of $3250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3771 of 2004

SZFIN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) made on 14 September 1998 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 12 October 1995.  He lodged an application for a protection visa on 24 February 1997.  The application was refused and he sought review by the Tribunal.  In that application he provided the one home address and no other contact details.  In response to the question about whether he was being helped by an adviser, for example, a lawyer or a community group, he responded ‘NA’ which I take to mean ‘not applicable’. 

2. In essence, in statements provided in connection with his protection visa application and review application, the applicant claimed that he had ‘actively propagated opposing political opinions from that of the Communist government in China’ and that as a result it was impossible for him to ‘live in China without being persecuted’ by the government.

3. The applicant claimed that after he finished school in 1998 he was employed in a book store owned by two uncles, that he began to discuss his dissatisfaction with the Chinese government and the Communist system and that as a result the book store became noticed by the authorities.  He claimed that he and others held meetings at night and that his uncles used their contacts to print articles in magazines and that he delivered them.  He claimed that he joined the 1989 student demonstrations and was involved in a number of ways in supporting activities.  After 1989 his uncles were arrested and the store closed down, he was blacklisted, interrogated by the PSB and had to report to the neighbourhood committee on a daily basis, his life became hard and he decided to come to Australia.

4. On 10 August 1998 the Tribunal wrote to the applicant by letter sent by registered mail to the only address he had provided and advised him that the Tribunal was not prepared to make a favourable decision on the information before it and invited him to attend a hearing to give oral evidence in support of his claims.  The Tribunal's reasons for decision record that the applicant did not attend the hearing, that the letter was not returned to the Tribunal and that the Department and Tribunal files had not revealed any other address or contact details for the applicant.  There is no suggestion that the applicant failed to receive this invitation.  It is clear from what he says today that he does not claim that he attended the Tribunal hearing. 

5. The Tribunal concluded that the applicant had effectively declined to avail himself of the opportunity to appear and give evidence and determined the matter on the material before it.  It found that the applicant had provided only general and vague details about his claims.  It did not accept that he would have been able to obtain a passport in his own name and exit China if he was of adverse interest to the authorities.  In any event it was not satisfied on the evidence before it that the applicant would have been of continuing interest to the authorities on account of the activities he was allegedly involved in during 1989.

6. The Tribunal indicated that it would have raised such issues with the applicant had he attended the hearing, as well as concerns about the exact nature of what he was involved in during 1989 and whether or not, from what he would have said at the hearing, it would be reasonable to accept that he had any involvement in pro-democracy activities.  The Tribunal found it impossible on the evidence before it to assess the nature and extent of any harm the applicant might have suffered in the past or might suffer in the future or indeed if any of his claims were true.  Insofar as his motivation for leaving China was an interest in the materialism of the West, such economic reasons did not fall within the Convention definition.  The Tribunal also noted that the applicant had been put on notice that it was unable to make a favourable decision on the information available and had not provided any further information.  It was not satisfied that he was a person to whom Australia had protection obligations.

7. The applicant filed an application in this court on 24 December 2004.  He filed an amended application on 17 March 2005, apparently because he was ordered to do so at the directions hearing.  However the amended application discloses particulars that bear no relationship at all to the Tribunal decision in relation to this applicant.  He contended in this amended application that the Tribunal depended upon advice received from the Department of Foreign Affairs and Trade.  However, there is no country information referred to in the Tribunal decision.  The amended application also raises issues as to the conduct of the Tribunal hearing and matters purportedly raised through an adviser at the hearing.  However the applicant did not attend a Tribunal hearing and there is no adviser or lawyer on the record either before the Department or the Tribunal.  These assertions are without merit and bear no relationship to the facts of this application. 

8. The general unparticularised contention that there was failure to consider and properly exercise discretionary powers under s.427(1)(b) of the Migration Act 1958 does not establish a jurisdictional error. Section 427(1)(b) gives the Tribunal power to adjourn the review from time to time. There is nothing in the material before the court to suggest that the applicant sought an adjournment of the hearing or of the review at any time. Nor does the general unparticularised contention that Tribunal made an error of law as there was no evidence to support its opinion establish error. This appears to be a reference to the contention that the Department of Foreign Affairs and Trade had stated that it was unable to give an opinion. As I have indicated there is nothing in the material before the court to suggest that any such opinion was sought.

9. The applicant has not been well served by whoever assisted him with the preparation of this amended application as it bears no relationship at all to the Tribunal decision in relation to him.  It does not establish any jurisdictional error.  However, as the applicant was in detention both at the time of his original application and at the time of the amended application I asked the legal representative for the respondent to address the grounds raised in the original application.  The respondent’s written submissions also address, quite properly, other aspects of the Tribunal decision and procedures.

10. In his original application for review the applicant claimed that he did not attend the hearing because his lawyer did not tell him. As I have indicated there was no lawyer on the record or other adviser notified to the Tribunal. If the applicant had the assistance of and relied on the advice of some other person this does not establish that the Tribunal fell into jurisdictional error. The Tribunal properly notified the applicant of his opportunity to appear before it and give evidence consistent with the requirements of s.425(1)(a) of the Migration Act as it stood at the relevant time.

11. The applicant did not attend the scheduled hearing and there is no indication that the reasons for this were communicated to the Tribunal.  Given that the applicant was extended (but did not act upon) a genuine invitation to appear, the requirements of s.425 were fulfilled (Saadik v Minister for Immigration & Multicultural Affairs [1999] FCA 825 at [20] and [22]). Furthermore I accept, as the respondent contends, that the Tribunal finding that in the absence of further information it was unable to accept that the applicant had the adverse profile he claimed or that he was of continued interest to the authorities was not such as to establish any jurisdictional error.

12. The second ground in the application of 24 December 2004 was that the applicant used his own name to come to Australia and that is not an important point for his refugee application.  Such contention appears to seek merits review which is not available in this court.  It was open to the Tribunal to have regard to the applicant's actual history in light of his being able to depart China legally and use a passport in his own name.

13. Next the applicant claimed that the Tribunal did not notice all his evidence and that he had more information to provide.  The claim that the Tribunal did not notice all his evidence is not particularised and is not consistent with what is apparent from the Tribunal decision.  The Tribunal had regard to the claims that he made in the material provided to the Department and to the Tribunal.  The fact that the applicant says he has more information to provide does not establish a jurisdictional error.  It was for him to put such information before the Tribunal.  He did not do so and cannot now complain that the Tribunal did not consider what was not before it.

14. Finally the applicant raised, in the original application and in oral submissions today, the fact that his two children were born in Australia.  He contended that they will have no rights in China because of the one-child policy.  There are no children included in the protection visa or review application.  There is nothing in the information provided or claims made to the Department or the Tribunal to suggest that this was a claim made by the applicant to the Department or Tribunal.  The Tribunal addressed the claims of the applicant before it.  No error is established in the manner contended or in any other way on the material before the court.

15. As no jurisdictional error is apparent, the application must be dismissed.  Hence it is not necessary to consider the unexplained extensive delay between the time of the Tribunal decision and the time of the application to this court. 

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 costs sought are, appropriately, at the lower end of the range of costs awarded in matters of this nature and are a proper amount in light of the nature of this and other similar matters. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  29 April 2005.