SZFNC v Minister for Immigration
[2006] FMCA 844
•13 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFNC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 844 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China due to her practice of Falun Gong – applicant failed to attend RRT hearing – RRT not satisfied about her claims – no reviewable error found – application dismissed. |
| Migration Act 1958, ss.36, 425 |
| Minister for Immigration v VSAF [2005] FCAFC 73 SJSB v Minister for Immigration [2004] FCAFC 225 VNAA v Minister for Immigration (2004) 136 FCR 407 |
| Applicant: | SZFNC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG144 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 13 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr J D Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
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 $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG144 of 2005
| SZFNC |
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 RRT”). The RRT decision was handed down on 22 December 2004. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China. She had made claims of persecution based upon her practice of Falun Gong. Relevant background facts are set out in the Minister's written submissions. I adopt as background paragraphs 2 to 5 of those submissions:
The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 1 July 2004 and lodged an application for a protection visa on 22 July 2004. She claimed to fear persecution at the hands of the authorities on account of her practice of Falun Gong. On 29 July 2004 a delegate of the respondent made a decision refusing to grant the applicant a protection visa. On 30 August 2004 the applicant applied to the RRT for review of that decision.
By letter dated 13 October 2004 the applicant was invited to a hearing to be held by the RRT. However, on the following day (and also a month later), the RRT received notice of a new address for service for the applicant. In light of this, the RRT sent the applicant another invitation to hearing. The applicant did not attend the hearing and the RRT handed down its decision on 22 December 2004.
RRT’s decision
The RRT was not satisfied that the applicant was a Falun Gong practitioner, that she had suffered persecution for her Falun Gong activities or that she had left China for that reason. It was also not satisfied that she cannot or will not return to China because she fears persecution there due to her Falun Gong activities in either Australia or China. The reason for this lack of satisfaction was the lack of detail contained in the applicant’s claims and the fact that she had not attended the hearing in order to clarify her claims.
On the basis of these findings, the RRT concluded that the applicant did not have a well founded fear of persecution for Convention reason in China and that she did not satisfy the criterion in s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”). Accordingly, it affirmed the decision under review.
The applicant relies upon her amended application filed on 17 May 2005. That application is defective in that it fails to identify any asserted jurisdictional error in the decision of the RRT. I gave the applicant the opportunity today to make oral submissions. She sought an extension of time to produce further material. I refused that request on the basis that the applicant had had plenty of time since her judicial review application was first filed on 18 January 2005.
The Minister's legal submissions deal with the amended application in paragraphs 6 to 9. I agree with those submissions and adopt them for the purposes of this judgment:
The amended application contains no more than a recitation of the applicant’s claims to be a refugee. However, the question of whether the applicant is a refugee is not one for the Court. Accordingly, the application raises no grounds upon which the court may make the orders sought.
The RRT is entitled to reject an application because it is not satisfied of the facts claimed by the application: Minister for Immigration v VSAF [2005] FCAFC 73 at [17]; SJSB v Minister for Immigration [2004] FCAFC 225 at [15]. Thus, the RRT made no legal error in affirming the decision of the delegate.
The RRT properly sent the applicant an invitation to attend a hearing as required by s.425 and was entitled to proceed to make its decision when the applicant did not attend at the scheduled time and place: VNAA v Minister for Immigration (2004) 136 FCR 407 at 414, [16] per Sundberg and Hely J, Gyles J agreeing at 417, [30].
There is no jurisdictional error in the RRT’s decision and the application ought to be dismissed with costs.
The decision of the RRT is free from jurisdictional error and is hence a privative clause decision. The judicial review application must therefore be dismissed. I will so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $5,000. The applicant did not wish to be heard on costs. I agree that $5,000 is an appropriate award when assessed on a party and party basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000. I further order that the Refugee Review Tribunal be joined as the second respondent to the application.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 June 2006
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