SZFQL v Minister for Immigration
[2006] FMCA 1076
•20 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFQL v MINISTER FOR IMMIGRATION | [2006] FMCA 1076 |
| MIGRATION – Review of RRT decision − where applicant invited to Tribunal hearing − whether applicant received invitation to attend Tribunal hearing − whether fault of applicant’s migration agent can constitute jurisdictional error − whether the applicant was given the opportunity by the Tribunal to comment upon independent country information used in its decision. |
| Migration Act 1958, ss.441A, 426A, 424A |
| B41 of 2003 v Refugee Review Tribunal [2004] FCA 30 SZEYH v Minister for Immigration [2006] FCA 93 Dranichnikov v Minister for Immigration [2003] 197 ALR 389 Abebe v The Commonwealth [1999] 197 CLR 510 SZATG v Minister for Immigration [2004] FCA 1595 |
| Applicant: | SZFQL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG 286 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 20 July 2006 |
| Date of Last Submission: | 20 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2006 |
REPRESENTATION
| Applicant in Person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 286 of 2005
| SZFQL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People's Republic of China. He first arrived in Australia on 30 September 1999. He had a number of visas issued to him for the purposes of study. These would appear to have expired by July 2004. Between 1999 and 2004 he entered and departed Australia on several occasions, as noted by the Tribunal at [CB 89]. On 9 July 2004 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs. On 19 July 2004, a delegate of the Minister refused to grant a protection visa, and on 18 August 2004 the applicant applied for a review of that decision.
In the application for review, found between [CB 43] and [CB 46], the applicant appoints a Mr Wong as his migration agent and indicates that Mr Wong is his authorised agent who is acting for him in these proceedings. He gave an address as his residential address, but he stated in section D of the form [CB 45] that he wanted correspondence about his application to be sent to his authorised recipient.
On 18 October 2004 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his claim but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to a hearing on 9 December 2004. The letter was sent to the applicant at his residential address and also to the migration agent. The letter sent to the applicant at his residential address was returned unclaimed with a notation that the applicant had left the address on 24 November 2004, but there is no indication that the letter to the migration agent was not received.
At [CB 55] there appears a response to the hearing invitation which gives a new home address for the applicant and which appears to have been signed by him on 1 November 2004. The applicant confirmed to me today that he had signed that document but stated that he did not know what it was and that this was not explained to him by the migration agent. This evidence is not tested but I do find it rather difficult to accept because the applicant had spent five years in this country, in educational establishments, and must have picked up some rudimentary English sufficient to understand a very clear form.
But in any event, provided that the Tribunal has complied with the service provisions of the Migration Act 1958 (“the Act”), found at s.441A, the applicant is deemed to have received the notices and his non-attendance would entitle the Tribunal to proceed in accordance with s.426A of the Act. It is also now well accepted that the applicant cannot plead the fault of his migration agent as constituting jurisdictional error on the part of the Tribunal: B41 of 2003 v Refugee Review Tribunal [2004] FCA 30; SZEYH v Minister for Immigration [2006] FCA 93.
The applicant did not attend the hearing of the Tribunal and the Tribunal proceeded in accordance with s.426A. The applicant had claimed a well-founded fear of persecution for the Convention reason of religion arising out of his membership of the Falun Gong. The Tribunal took issue as to whether the Falun Gong was a religion and noted that the Chinese Government had not targeted Falun Gong practitioners for that reason, but instead had attributed an adverse political opinion to the followers of that organisation because of their protest activities against the government. This would appear to bring membership of Falun Gong within the political part of the Convention definition. Alternatively, it seems to me that membership of Falun Gong would constitute membership of a particular social group.
The applicant's claims, in respect of his fear of persecution, are found at [CB 26]. He states that he became a practitioner of Falun Gong in Sydney and will be persecuted if he returns to China. He noted that by the time he first came to Australia in 1999 Falun Gong had already been banned. He states:
“In 2000, with all the knowledge about Falun Gong, I decided to practise it myself. So I dialled the number that appeared on one of the hand-outs and joined the morning exercise in Chinese Gardens, Darling Harbour. It turned out to be such a rewarding exercise. People who were teaching me were very friendly and helpful. After a period of time I was totally into it. I'd practise, read books and visit Falun Gong websites every day. I haven't seen any harm caused by Falun Gong. Why does the Chinese Government always say something bad about it? Now I practise Falun Gong regularly. It has become a part of my life but I know that if I go back to China with a belief like this, my life will be destined in prison. I don't have any choice but seek protection in Australia where I can go on pursuing my belief freely.”
There is found in the court book a considerable quantity of independent country information concerning Falun Gong, and on human rights in China generally. I have little doubt that if the applicant had attended at the Tribunal he would have been asked about the sincerity of his commitment to Falun Gong and his intentions if he returned to China. The responses received would be considered for credibility and weighed against that country information. Based upon that analysis the Tribunal would have decided whether or not it was satisfied that the applicant was a person to whom Australia owed protection obligations.
The Tribunal took into account the statement and made the following conclusion:
“The Tribunal is satisfied that any previous involvement the applicant had with Falun Gong will not make him a person of concern to the PRC authorities unless he continues to actively participate in those activities. The Tribunal has not been able to determine the extent or nature of the applicant's involvement with Falun Gong, if he is currently involved with Falun Gong or if he intends to participate in Falun Gong in the reasonably foreseeable future. Without further information from the applicant regarding these matters, the Tribunal cannot be satisfied that he is or will be implicated in Falun Gong which will attract the adverse interest of the PRC authorities in the reasonably foreseeable future.
The applicant was put on notice that the Tribunal was not satisfied by the evidence he provided in support of his application. He did not provide further information despite ample opportunity to do so. Many questions regarding his previous and future circumstances remain unanswered. In the absence of further information, and in view of the above findings, the Tribunal is not satisfied by the evidence that the applicant has a well-founded fear of persecution in China for reasons of political opinion or any other convention reason.”
The responsibility of an applicant who is seeking the protection of a Convention signatory, is to satisfy that signatory that he is a person to whom protection obligations belong. This is his responsibility: Dranichnikov v Minister for Immigration [2003] 197 ALR 389 at [78] per Kirby J, Abebe v The Commonwealth [1999] 197 CLR 510 at [187] per Gummow and Hayne JJ, SZATG v Minister for Immigration [2004] FCA 1595 at [36] per Hely J. The Tribunal cannot be faulted because it fails to reach a state of satisfaction as a result of the inability of the applicant to provide any evidence about his claim.
The applicant has filed an amended application in which he claims that the Tribunal has made an error of law which constituted a jurisdictional error. He provides particulars under subparagraphs 1(a), (b), (c) and (d). The first matter raised is that the Tribunal failed to send its correspondence to his correct residential postal address, and as a result he was not property advised of the hearing date and failed to attend the hearing. I do not think the Tribunal had any obligation to send the notice of the hearing to the applicant's residential address at all because the applicant had told the Tribunal to send all correspondence to his agent.
The Tribunal did, in fact, send a notice to the last known residential address. If the applicant had moved it was his responsibility to have told the Tribunal of his new address. In any event, as I have already stated, the applicant signed the hearing invitation form indicating that he would attend. If he did not understand the form, a matter I have serious doubts about, then that was the fault of his migration agent and not the fault of the Tribunal. His failure to attend, once the Tribunal had complied with all the requirements of the Act, which it is not disputed that it did, does not constitute a jurisdictional error.
The second matter refers to the status of the migration agent. It indicates that the Tribunal had access to certain information about him. No evidence is provided for this allegation and I do not think I can take the matter any further, particularly in the absence of any submissions concerning it from the applicant today.
The third matter raised is that the Tribunal failed to give the applicant independent country information or to ensure that he fully understood the information that the Tribunal would use in its decision. All the independent country information utilised by the Tribunal was country information that did not have to be disclosed to the applicant because it came within the exceptions of s.424A(3)(a) of the Act.
The final matter raised by the applicant was that the Tribunal did not give him an opportunity to comment upon the independent country information. That is not correct. The applicant was given an opportunity to comment by attending a hearing. He said he was going to attend the hearing but he did not appear. The Tribunal acted within its jurisdictional rights to proceed without taking any further steps to have him appear – s.426A of the Act.
In these circumstances I am unable to find any grounds upon which the Tribunal could be said to have made its decision under a jurisdictional error. I dismiss the application. I order that the applicant pay the respondents costs which I assess in the sum of $4,500.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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