SZFLG v Minister for Immigration
[2006] FMCA 1528
•13 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFLG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1528 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in China – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 426A |
| Applicant: | SZFLG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG70 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 13 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2006 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondents: | Mr J Bird Phillips Fox |
ORDERS
The Court directs that the words "and Indigenous" be deleted from the title of the first respondent.
The Refugee Review Tribunal be joined as the second respondent to the application.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG70 of 2005
| SZFLG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The RRT decision was handed down on 17 December 2004. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution apparently because of his class background. The background to the applicant’s protection visa claims and the Tribunal’s decision on them are conveniently set out in the Minister’s written submissions filed on 5 October 2006.
I adopt as background for the purposes of this judgment paragraphs 1 through to 4 of those written submissions:
The applicant, a male citizen of China, arrived in Australia on 11 June 2004. He applied for a protection visa on 8 July 2004. He claimed to have been detained by the local Chinese police on account of his political opinion. He also claimed to have been deprived employment in China "because [he] was from a family of landlord in China before the liverty of China (sic)." He feared that the Chinese authorities would mistreat him on his return. A delegate of the Respondent ("the delegate") refused his application on 24 August 2004.
The applicant applied to the Tribunal for a review of that decision on 28 September 2004. He reiterated his claims in his application for review (court book, page 48). The Tribunal wrote to the applicant on 25 October 2004 inviting him to attend a hearing on 18 November 2004 (court book, page 52). The applicant did not attend the hearing.
The Tribunal proceeded to a decision without taking further action to enable the applicant to appear before it, pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal affirmed the decision of the delegate on 17 December 2004 (court book, page 61).
The decision of the Tribunal
The Tribunal considered that the applicant had not provided sufficient evidence in support of his claims. It noted that the applicant's absence from the hearing meant that it was unable to obtain further information from him. It concluded that it could not be satisfied that the applicant had a well founded fear of persecution for a Convention reason (court book, page 66).
These proceedings began with a judicial review application filed on 11 January 2005. The applicant now relies upon an amended application filed on 10 May 2005. There are seven grounds in that application. They are:
1.The Tribunal failed to assess whether the delegate of the Minister raised reasonable grounds for not granting a protection visa.
2.The Tribunal did not properly assess the chance of my persecution on my return to China based on a member of a particular social group in China. I was persecuted and discriminated because I am from a landlord’s family prior to the Communist Revolution. My parents lost their basic human rights and freedoms because of the above-mentioned. … I also suffered persecution because of my family’s past history. I was detained by the local police in 2003 and had to leave China for protection. Because I was on a “black list” I would be detained on my return to China and would suffer persecution because I would not stop my pro-democratic activities.
3.I was discriminated by the Chinese authorities because of my family’s past history. I am from a “Landlord’s” family, and my parents and I lost basic human rights in China, and I was detained and persecuted because I belonged to this particular social group in China.
4.The Tribunal did not observe Migration Act 1958 properly to making the decision.
5.The Tribunal did not provide a rational or logical foundation for not granting a protection visa to me.
6. The Tribunal did not provide me adequate particulars of the independent information; and
7.The Tribunal had bias against me when considering my application.
There is no substance to any of these grounds. The evidence I have before me is limited to the court book filed on 10 February 2005.
That sets out the decision record of the Tribunal on pages 61 to 66. The obligation on the Tribunal was to consider the applicant’s claims relevant to his review application. It is apparent that the Tribunal did that. The Tribunal was unable to make a favourable decision because of the limited material before it. The applicant failed to attend a hearing to which he had been invited by letter dated 25 October 2004 (court book, pages 52 and 53). In that letter the applicant was warned that the Tribunal was unable to make a favourable decision on the information it had then available.
Grounds 2 and 3 simply restate the applicant’s protection visa claims. They may have a bearing on the merits of the Tribunal decision but that is beyond the scope of this proceeding. The assertion that the Tribunal did not observe the Migration Act in making its decision is unfounded. The Tribunal correctly identified relevant provisions of the Migration Act in its decision. The applicant was given sufficient notice of the hearing to which he was invited. The Tribunal reasonably and properly exercised its discretion under s.426A of the Migration Act to proceed in the applicant’s absence when he failed to appear.
There was no want of rationality or logic in the presiding member’s reasons. No obligation of disclosure under s.424A of the Migration Act arose in this case. The decision did not turn on any information so much as a lack of information. It is well established that where an applicant provides insufficient information to enable a favourable decision to be made, no obligation of disclosure under s.424A arises.
The applicant also asserts bias but provides no particulars. There is nothing in the available material to suggest any bias whatsoever.
I conclude that the decision of the Tribunal is free from any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,000.
The applicant was concerned to clarify his rights of appeal and his obligations under the costs order but he did not otherwise wish to be heard on costs. I am satisfied that costs of not less than $3,000 have been properly and reasonably incurred on behalf of the Minister when assessed on a party-party basis. I will order that the applicant pay those costs fixed in the amount of $3,000.
I will also order that the Refugee Review Tribunal be joined as the second respondent to the application and that the Minister’s title be corrected by deleting the words “and Indigenous”.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 October 2006
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