SZFJS v Minister for Immigration
[2005] FMCA 1968
•14 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFJS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1968 |
| 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 did not attend the Tribunal hearing – where applicant did not attend Court. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A,426A |
| NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 followed SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 followed SZCGM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 followed SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 followed |
| Applicant: | SZFJS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 13 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 December 2005 |
| Date of Last Submission: | 14 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2005 |
REPRESENTATION
| The Applicant: | No appearance |
| Solicitors for the Respondent: | Mr Reynolds Clayton Utz |
ORDERS
I grant leave to join the Refugee Review Tribunal as Second Respondent to these proceedings.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 13 of 2005
| SZFJS |
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. The Tribunal made its decision on 9 November 2004 and handed that decision down on 2 December 2004. The Tribunal affirmed 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 20 June 2004 and applied for a protection (class XA) visa on 24th June. On 28 June 2004 a delegate of the Minister refused the application. On 3 August 2004 the applicant lodged an application for review with the Refugee Review Tribunal and on
28 September 2004 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 November 2004.
The applicant was advised that if he did not attend the hearing and a postponement was not granted the Tribunal might make a decision on his case without further notice. On 2 November 2004 the Tribunal received a signed notice advising the applicant did not wish to attend the hearing and that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.
The Tribunal did just that, exercising its powers under s.426A of the Migration Act. The Tribunal noted the applicant's claims that he experienced mental torments in the People's Republic of China and has lost his basic human rights for reason of his belief in Falun Gong.
He claimed to be a follower of Falun Gong, but was not able to practise his belief openly and had to escape China to avoid the incidents of persecution in the People's Republic of China including the Cultural Revolution and the Tiananmen Square massacre. He did not believe, he claimed, that the authorities in China would protect him.
The Tribunal accepted that the applicant was a national of the People's Republic of China, but the Tribunal was not satisfied at all with the statutory elements for a grant of protection had been made out.
The Tribunal was not satisfied that the applicant was a sincere and genuine Falun Gong practitioner, as he claimed, nor that he was even a mere practitioner. The Tribunal was not satisfied that he was imputed with such practice in China in the past, nor that he had a real chance of being imputed as a Falun Gong practitioner should he return to China. The Tribunal did not accept that the applicant had a well-founded fear of persecution from his alleged practice of Falun Gong and was not satisfied that he was subject to any harm howsoever described for reasons of the Cultural Revolution or Tiananmen Square massacre.
The applicant did not claim, and the Tribunal did not find any evidence, that he feared persecution for any other reason should he return to China. The Tribunal did not accept that the applicant had a well-founded fear of persecution for a Convention-based reason in the People's Republic of China and accordingly affirmed the delegate's decision.
The applicant sought a writ of certiorari, a writ of mandamus to compel the RRT to reconsider the application and sought costs. The applicant said in his application that the RRT decision:
Effected to take into account a relevant consideration when it assessed weather(sic) the delegate of the Minister raised reasonable grounds for not granting a protection visa.
The particulars that the applicant claimed were these: First, the Tribunal did not properly consider in assessing the chance of his persecution and being persecuted on his return to China on the basis that he was a member of Falun Gong. He said that he was persecuted and the Tribunal failed to provide any evidence to support its decision, failed to refer to any independent information and made a decision without going through the right procedure. Second, he said the Tribunal's satisfaction that he was not a refugee was not based upon a reason which provided a rational or logical foundation for this belief.
Third, the Tribunal did not observe the Migration Act 1958 properly to making the decision. Fourth, the Tribunal failed to consider his claims. He undertook to provide more details to support his judicial review application in his outline of submissions. He has not of course done so. He filed an amended application which did not take the matter very much further, if anywhere. He has filed no written submissions and despite being given ample notice of these proceedings, such as more than 10 months' notice, he has just not attended Court and has given no explanation of any inability to attend.
The respondent submits that the applicant's grounds of review should be rejected. Ground 1 does no more than re-agitate the merits of the applicant's claims. Merits review of course is impermissible. He also asserts, wrongly, that the Tribunal was obliged to provide evidence in support of its decision. That clearly misconstrues the role of the RRT. It is for the applicant to satisfy the Refugee Review Tribunal of the applicant's claims. The applicant also asserted that the right procedure was not followed, but provided no particulars of any breach of procedure. The respondent submits, quite rightly in my view, that this complaint cannot be sustained. I have read the decision and I cannot find any evidence whatsoever of any breach of procedure.
Ground 2 contains an assertion that the Tribunal decision was irrational or illogical in some unidentified way. There is nothing on the face of the decision that sustains this complaint. Ground 3 is a bare assertion that some aspect of the Migration Act was not observed by the RRT, but again there is nothing on the face of the decision that makes this ground of review. Ground 4 asserts that the RRT failed to consider the applicant's claims, but the RRT explicitly in its decision acknowledged the existence of the only document provided by the applicant containing any claims at all and set it out and dealt with the claims that were within that document.
The respondent submits, and in my view rightly, that there is no jurisdictional error apparent on the face of the decision. The Tribunal invited the applicant to a hearing, noting that it was unable to be satisfied of the applicant's claims based on the material before it.
The applicant elected not to attend the hearing. It is hardly surprising that his application was unsuccessful. The respondent refers me to the decision of the Full Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 where the Full Court said at [5]:
In assessing the adequacy of these reasons it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity the inevitable consequence was the rejection of his application.
There are several other decisions binding on this Court that support and corroborate the decision, should that be necessary. I am referred to the decision of Allsop J in SZCGM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, particularly at [21] and [22] where his Honour looked at whether there would be any breach of s.424A. His Honour found that there was not. I was also referred to the decision of the late Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306. His Honour there dismissed an application for an appeal with costs in similar circumstances, saying at para.16:
The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant's favour on the basis of the information before it. As the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.
Finally, I refer to a very recent decision by the Honourable Bennett FM in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811. This is also a decision on appeal from a Federal Magistrate, in fact handed down yesterday. Her Honour deals again with that very same issue, which is of course an issue that this Court sees not infrequently. At [15] her Honour said:
S.426A provides that if an applicant is invited to appear before the Tribunal and does not appear on the hearing date, the Tribunal "may make a decision on the review without taking any further action to allow or enable the applicant to appear before it". The section is designed to relieve the Tribunal from having to reschedule the hearing or to hold it at all.
Her Honour went on to say in [16]:
By not attending the hearing the applicant has in effect waived his opportunity to provide further comment on adverse information (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82). He cannot then complain that by that action on his part the Tribunal has denied him procedural fairness.
To my mind, there is no failure to comply with s.424A. There is no procedural unfairness. There is no denial of natural justice.
The applicant in this case chose not to attend the hearing. He elected not to attend the hearing and made that clear to the Tribunal in writing. It is hardly surprising that the Tribunal was unable to be satisfied that he had made out his case.
The application will be dismissed.
There is an application for costs in the sum of $4,250.00 on a party-party basis. To my mind, this is within the range provided by the scale under sch.1 of the Federal Magistrates Court Rules 2001.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 12 January 2006
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