SZFQS v Minister for Immigration - [2005] FMCA 715

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFQS v MINISTER FOR IMMIGRATION

[2005] FMCA 715

MIGRATION – RRT decision – Chinese Falun Gong practitioner claimed torture in forced labour camp – did not attend Tribunal hearing – no error found.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.425A, 426A, 426A(1), 441A(4), 441C(4), 483A, Part 8
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant:

SZFQS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG316 of 2005

Judgment of:

Smith FM

Hearing date:

19 May 2005

Delivered at:

Sydney

Delivered on:

19 May 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms S Harris

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the Respondent’s costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG316 of 2005

SZFQS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 December 2004 and handed down on 5 January 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A of the Migration Act gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In a matter such as the present, the relevant jurisdiction is given by s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the Tribunal decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa.
In the present case the applicant arrived in Australia from China in May 2004 and on 13 May 2004 applied for a protection visa, assisted by a migration agent. Attached to his application was a short statement in which he made claims for protection as a refugee. He said that before coming to Australia he was a “genuine Falun Gong practitioner” and had started practising Falun Gong in 1997. He referred to the commencement of persecution of practitioners of Falun Gong by the Chinese authorities, and said: “when the persecution started, I clarified the truth to others about Falun Gong, and was arrested and illegally sentenced to two years in a forced labour camp”.
He then described in one paragraph “the brutalities I experienced in the labor camp”. These included activities which would be described as torture. He said he could not stand such torture, and “pretended to write ‘repentance statement’ to express remorse for practising Falun Gong; promise to give up Falun Gong; and never again associate with other practitioners or go to Beijing to appeal for Falun Gong”. He said he was released in December 2003, and bribed a government officer to issue a passport. He came to Australia seeking its protection.
His application was refused by a delegate on 7 September 2004. In his reasons, the delegate said:
I am not satisfied that the applicant had a sufficiently prominent profile to be of adverse interest to the authorities. I note that he has not provided any information whatsoever in relation to his practice and involvement with Falun Gong. In the absence of substantiating evidence and detail, I can only conclude that if he was a Falun Gong practitioner, he was one of many ordinary adherents. There is nothing in the information before me to suggest that his profile was such that the authorities would have adversely targeted him individually in the past and will take an interest in him on his return.
The applicant sought review of that decision by the Refugee Review Tribunal in an application lodged on 7 October 2004. His application provided a home address at Cabramatta and a mailing address in Pitt Street, Sydney, but did not provide any telephone contact. The application attached a statement which was shorter than the previous statement, and merely repeated his claims without providing more detail.
A letter dated 8 October 2004 was sent to the applicant’s mailing address acknowledging the application and informing him that he might be invited to a hearing. The letter described why a hearing was important: “A hearing is your opportunity to give the Tribunal evidence to support your application”. It invited the applicant to tell the Tribunal: “immediately if you change your home address, your mailing address, your telephone number or if there is any change in the name or address of your Authorised Recipient”, and enclosed various brochures and forms.
On 9 November 2004, the Tribunal sent a letter addressed to the applicant at both his mailing address and his home address. Both letters were sent by registered post and invited the applicant to attend a hearing on 10 December 2004. The letter informed the applicant: “The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”. The letter informed the applicant that if he did not attend the hearing it could make a decision in his case without further notice. It invited him to send any new documents or written arguments he wanted the Tribunal to consider. It enclosed a form and invited the applicant to return it so as to indicate whether he was coming or not.
The “Response to Hearing Invitation” form sent to his mailing address was not returned to the Tribunal, and in its reasons the Tribunal said:
On 9 November 2004 the Tribunal wrote to the Applicant at his two nominated addresses (a home address and a mailing address) advising that it had considered all the material before it relating to his application but it 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 10 December 2004. The Applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received and while the letter to his home address was returned unclaimed with the annotation that there is no such address, the letter to his mailing address was not returned unclaimed. The Applicant had not provided any other contact point such as a telephone number or mobile phone number on which he could also be contacted.
The Applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.
I have considered the procedures followed by the Tribunal when inviting the applicant to attend a hearing, and on the evidence before me I am not satisfied that the Tribunal failed to follow the requisite postage procedures set out in ss.425A and 441A(4) and regulation 4.35D. As a result of those provisions and the effect of s.441C(4), the applicant was deemed to have received notice of the invitation to attend the hearing in the time required before the appointed date. In those circumstances, in my opinion, the Tribunal was entitled to proceed under s.426A(1): “without taking any further action to allow or enable the applicant to appear before it”.
In his application filed in this Court, the applicant has not put forward any specific complaint concerning this procedure, nor any evidence showing non‑compliance by the Tribunal. He has today told me that he does not dispute that the letters were sent by the Tribunal to the addresses he gave, nor that he did not attend the hearing. His reason given in unsworn evidence was unclear. He said that he “needed to work” and that was why he did not receive the letters, and he maintained that the reason for his not attending was that he did not receive the letters.
It is not necessary for me to rule upon this question of fact, since it is clear on authorities concerning the effect of the deemed service provision and s.426A that the Tribunal’s power to proceed without a hearing is not lost by the fact that the hearing invitation in fact did not come to the attention of the applicant, and that the Tribunal is entitled to proceed in the manner it did in the present case (see, for example, VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14‑16], and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12]).
Having decided to proceed in the absence of the applicant, the Tribunal’s reasoning was that his claims about being a Falun Gong practitioner were “very vague and general, totally lacking any specific facts or details such as key dates”. The Tribunal referred in particular to the absence of details about how the applicant had practised Falun Gong in China and in Australia. It said:
In short, from the limited and unsupported claims made by the Applicant, the Tribunal has not been able to satisfy itself that the Applicant is or ever has been “a genuine Falun Gong practitioner”, and does not accept this claim.
The Tribunal applied similar reasoning in relation to the applicant’s claim to have been arrested and tortured, and to have paid a bribe to obtain a passport. The Tribunal referred to country information concerning PRC passport procedures which it accepted. It said:
The Tribunal … is satisfied that if he was a known Falun Gong practitioner who had been detained and brutally tortured in a forced labour camp for 2 years because he “clarified the truth to others about Falun Gong” and forced to write a “Repentance statement”, then he would not have been issued with a passport by the authorities in his home province of XX only some three or four months later to enable him to leave the country.
The Tribunal thought that on the material before it, the applicant had falsified his claims in order to obtain a protection visa and that he was not a credible witness. Its conclusion was that it was not satisfied that the applicant is a person to whom Australia had protection obligations under the Refugees Convention and therefore did not satisfy the criteria for a protection visa.
I have considered the reasoning of the Tribunal and have not been able to find any misconception of law, nor a failure to address the applicant’s claims, nor any other ground of jurisdictional error which would allow me to set aside its decision.
In this Court, the applicant has not received any apparent assistance from a lawyer. His original application set out as his grounds of the claim:
1.I am entitled to a protection visa.
2.[A repetition of the factual claims which he put forward with his visa application].
He has again today, at greater length, read a statement recounting the same history and sought to persuade me that he should be allowed to stay in Australia as a refugee. However, as I have tried to explain to him, it is not the function of the Court to make that judgment, and it does not have the power to order the grant of a visa. I have also explained to him that repeating his claims for refugee status is insufficient to allow me to order his case to be sent back. I consider that his application to this Court did not raise a jurisdictional error.
In response to directions given by a Registrar on 15 February 2005, the applicant has filed an amended application and no evidence. His amended application follows a general precedent which states four grounds which might have raised arguable jurisdictional errors, if they were given particularity and relevance to the particular procedures and reasoning of the present decision of the Tribunal. However, the document does not attempt to do this at all, and the applicant’s oral submissions to me have not attempted to do so either. He has filed no written submission which does this. As I have indicated above, I have not for myself been able to identify a ground of jurisdictional error in the Tribunal’s proceedings, whether falling within the amended application or otherwise.
For the above reasons, I must dismiss the applicant’s application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $4000.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 31 May 2005