SZFTC v Minister for Immigration

[2005] FMCA 1146

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFTC v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1146

MIGRATION – RRT decision – Chinese national fearing persecution for Falun Gong activities – did not attend Tribunal hearing – no jurisdictional error found.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424A(1), 425, 426A , 426A(1), 474, 483A, Pt 8

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NBHP v Minister for Immigration [2005] FMCA 998
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
SZEUZ v Minister for Immigration [2005] FMCA 967
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant: SZFTC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG429 of 2005

Judgment of: Smith FM

Hearing date: 2 August 2005

Delivered at: Sydney

Delivered on: 2 August 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms D Watson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Refugee Review Tribunal be joined as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $3200. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG429 of 2005

SZFTC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. 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 31 December 2004 and handed down on 25 January 2005.  The Tribunal affirmed a decision of a delegate which refused the applicant a protection visa. 

2. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth), but is 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 on my powers have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal, unless I am satisfied that the decision was affected by jurisdictional error. I do not have the power myself to decide whether the applicant qualifies for a refugee visa.

3. In the present matter, the applicant arrived in Australia in May 2004 on a one month visitor’s visa.  He was assisted by a migration agent, Mr Wu, when he lodged an application for a protection visa on 17 June 2004.  

4. Attached to the application was a brief, typed statement making claims for protection by Australia under the Refugees Convention.  The statement said that the applicant had started to learn Falun Gong and had “become a member since 1998”.  It said that in the course of his employment, he started to introduce other friends and colleagues to join in Falun Gong.  After the practice was banned: 

   I became a chief person to be in charge of Falungong in our area as I could help other members to hide and stay away from the persecution from the Chinese authorities. 

   In March 2004, I was found out by the Chinese authorities that I was the head of our area and was involved with hiding other members and helping other members to leave China for protection.  An investigation team was sent to our section to investigate me, realising the dangerous situation, with the help of a friend, I got my visa to come to Australia for protection. 

   The applicant claimed that he would be persecuted “as I was the head of the area, and have become a target for persecution for the Chinese Communist Party”.  

5. No more details nor supporting evidence were given to the Department, and no more was ever given to the Tribunal on appeal.  The Delegate refused the application on 7 July 2004.  She sent to the applicant and his migration agent a statement of reasons which drew attention to the fact that the applicant’s “statement of claims is very brief and lacking in substantiating detail”. 

6. The applicant’s application for review filed on 13 August 2004 contained only a brief repetition of the general claims previously made.  The applicant gave a home address in Campsie and a mailing address in Pitt Street, Sydney.  An acknowledgment of his application sent to his mailing address indicated that the Tribunal might invite him to a hearing, and explained why it was important.  The letter said:  “A hearing is your opportunity to give the Tribunal evidence to support your application”. 

7. A letter dated 27 October 2004 was sent to the applicant at his mailing address and to his home address.  It invited him to a hearing on 1 December 2004, at “Level 29, Pacific Power Building, 201 Elizabeth Street, Sydney”.  The letter informed the applicant that the Tribunal had considered the matter but “is unable to make a decision in your favour on this information alone”.  A further letter on 1 November 2004 changed the hearing time on 1 December 2004 from 11.30 am to 9.00 am.  Both letters informed the applicant: 

   If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.  

8. The applicant was asked to read and complete a “Response to Hearing Invitation” form.  The form was returned to the Tribunal on 17 November 2004, completed and dated 5 November 2004.  The applicant has today confirmed that it carries his signature.  As completed and lodged with the Tribunal, it said in response to the question:  “Do you want to come to a hearing?”: 

   No, I do not want to come to a hearing.  I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.  

9. The applicant claimed today that although he had signed this form he had not completed it, but had given it to his friend to do so.  This may or may not be true, but there is no evidence before me that the Tribunal was ever contacted in any manner which cast doubt on the response which had been lodged with it. 

10. The Tribunal did not make a decision prior to the appointed time for hearing, but appears to have allowed that appointment to remain open. In the absence of the applicant at the appointed hearing, it was expressly empowered to proceed without taking any further action to allow or enable the applicant to appear before it (see s.426A(1) of the Migration Act). The Tribunal was also so empowered, in my opinion, by reason of the consent lodged by the applicant subsequent to the invitation (see my decision in NBHP v Minister for Immigration [2005] FMCA 998 at [25] to [45]).

11. The applicant today in submissions gave two explanations for his absence from the hearing.  First, that he could not find the venue, and secondly, that he was afraid that he would be arrested and sent back if he did find the address.  He also suggested that he had not been properly advised by his friend, or friends, whose assistance he received to understand letters in English sent to him. 

12. These various explanations were not on oath nor corroborated and have apparent inconsistencies.  But even assuming the truth of everything the applicant said to me today, I cannot find in it a failure by the Tribunal to follow a procedure required by law before it determined the matter without affording any further opportunity for the applicant to attend a hearing.  The applicant did not suggest that any communication had been made to the Tribunal, beyond the return of the form which I have referred to above, which might have required it to address discretionary considerations for not proceeding to make a decision (c.f. SZEUZ v Minister for Immigration [2005] FMCA 967 and other cases which I cite at [29] of that decision).

13. As has been pointed out by the Full Court, once the Tribunal had the power to proceed under s.426A, as I am satisfied the present Tribunal had, there is no room for an applicant to complain that unknown to the Tribunal he had not properly comprehended or was not informed of the hearing invitation (see VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [16], applied in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12]).

14. As to its decision to proceed, the  Tribunal said:  

    On 27 October 2004 (and again on 1 November to amend the time) the Tribunal wrote to the Applicant 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 1 December 2004.  On 5 November 2004 the Applicant advised the Tribunal in writing that he did not wish to give oral evidence and 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.  This matter has therefore been determined on the evidence available to the Tribunal. 

    For the reasons I have explained, I consider that this reveals no error of procedure on the part of the Tribunal giving rise to jurisdictional error.  

15. The Tribunal’s conclusions about the merits of the applicant’s claims were somewhat inevitable.  It said that it was not satisfied that the applicant had a well‑founded fear of persecution within the meaning of the Convention if he returns to China.  Its reasoning was: 

    In this case the Tribunal accepts that the Applicant is a citizen of the People’s Republic of China as claimed and as supported by a copy of his PRC passport.  The Applicant claims to have been a local leader of Falun Gong, that as such he helped other members avoid persecution by hiding or leaving the country, but that in March 2004 his role was discovered and he was investigated; he fears persecution on return to China.  However the Tribunal is not satisfied that the Applicant has a well‑founded fear of persecution within the meaning of the Convention if he returns to China.  This is because the Tribunal finds the Applicant’s Falun Gong claims very general and lacking in useful detail.  For example there is no information about his practice of Falun Gong, and no useful information about his role as a local leader, including in actually helping other members avoid persecution.  The Applicant’s claims also appear inconsistent in that he claimed that his leadership of Falun Gong was discovered in March 2004 and he was investigated yet he remained living at his usual place of residence and at his workplace until May 2004, and he left China legally in late May, nearly six weeks after he obtained an Australian visa; the Tribunal also finds such a delay in leaving at odds with his claims.  Although the delegate also noted credibility concerns given the brevity of his very general claims, the Applicant did not provide more information when he sought review, nor did he accept the invitation to provide oral evidence to the Tribunal.  The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well‑founded fear of persecution within the meaning of the Convention.  (emphasis added)

16. Although the Tribunal in that passage makes reference to an apparent inconsistency in the applicant’s claims, I do not consider that that inconsistency was integral to the Tribunal’s reasoning.  The Tribunal does not make a finding as to inconsistency, but only that the claims “appear inconsistent” in a context where it was indicating that this and other matters needed to be explored by the Tribunal at a hearing before it could be relevantly satisfied. I therefore do not consider in this case that there has been a failure by the Tribunal to follow the procedure required under s.424A(1), and I think the situation falls within [24(iii)] in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471.

17. Apart from this aspect, there was no other aspect of the Tribunal’s reasoning which appeared to require my comment.  

18. The applicant filed an application in this Court which has three grounds: 

    1.RRT failed to exercise its jurisdiction as it failed to provide any materials to prove that I would not be persecuted if I practice Falungong in China.  There is no evidence nor materials to justify the Tribunal’s decision.  (emphasis added)

    2.The Tribunal was wrong to find that I was not a refugee. 

    3.The Tribunal did not offer me an opportunity to explain my application in details. 

19. Paragraph 1 misconceives the situation of the Tribunal in that it suggests that the Tribunal was obliged to address whether the applicant would not be persecuted.  This is not the legal situation of the Tribunal.  On the authorities, which the Tribunal cited in its reasons, it remained for the applicant to satisfy the Tribunal as to relevant parts of his claims.  It was open, as a matter of law, for the Tribunal not to be satisfied on the scant details provided by this applicant. 

20. The second ground referred to above does not give rise to any jurisdictional error that I can discern.  

21. The third ground, in my view, does not establish jurisdictional error. For reasons which I have explained above, the Tribunal performed its duty under s.425 to invite the applicant to a hearing, and it was entitled to proceed without giving the applicant further opportunities to explain his claims.

22. The applicant also filed an amended application.  Ground 1 appears to make criticisms of the delegate’s reasoning, but these are irrelevant when deciding whether jurisdictional error affected the Tribunal’s decision, since it made a de novo assessment of the applicant’s claims.  

23. Grounds 2 and 3 of the amended application claim that the Tribunal did not properly consider the applicant’s claims and that its decision was not “based upon reasoning which provided a rational or logical foundation”.  I do not accept these contentions.  The Tribunal made it clear that it considered all the claims that had been made by the applicant.  Its reasons for not being satisfied were rational and open to the Tribunal as a matter of law.  

24. Ground 4 complains, without providing any particulars of this complaint, that the Tribunal “did not observe Migration Act 1958 properly to making the decision”.  However, as I have indicated above, I explored with the applicant and have considered for myself the procedures that were followed, and I am not satisfied that there was any failure of procedure on the part of the Tribunal amounting to jurisdictional error.  

25. Grounds 5 and 6 make complaints about the Tribunal’s use of independent information.  However, they are misconceived in the context of the present case, since the Tribunal made no such use.  

26. The applicant today had no further arguments to make which I have not already dealt with above. 

27. For the above reasons I must dismiss the application. Since I have found the Tribunal’s decision was not affected by jurisdictional error, it is a “privative clause decision” within s.474 of the Migration Act, and relief is not available to the applicant.

    RECORDED  :  NOT TRANSCRIBED

28. I order the applicant to pay the first respondent’s costs in the sum of $3200. 

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  18 August 2005