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

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.
The application is dismissed.
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)

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.
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.
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.
Attached to the application was a brief, typed statement making claims for protection…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 1146
Decision Date: 2 August 2005

CaseChat Overview and Summary

SZFTC, the applicant, has brought an application against the Minister for Immigration, the first respondent, to challenge a decision of the Refugee Review Tribunal. The Tribunal upheld a decision of the delegate to refuse the applicant a protection visa, a decision which the applicant now seeks to overturn in the Federal Court. The court's jurisdiction to hear this matter arises under s.483A of the Migration Act, and is subject to the limitations set out in Part 8 of that Act. The court cannot set aside the Tribunal decision unless it was affected by jurisdictional error. The applicant arrived in Australia in May 2004 on a visitor's visa and applied for a protection visa on 17 June 2004. In the accompanying statement, the applicant claimed that he had been a member of Falun Gong since 1998, and that after the practice was banned in China, he had become a leader in his area, helping other members to hide and flee persecution. He was arrested in March 2004 and escaped to Australia. The delegate refused the visa application on the basis that the applicant's statement was very brief and lacking in detail. The Tribunal upheld the delegate's decision. The court held that the Tribunal's decision was not affected by jurisdictional error. The Tribunal had before it the same information as the delegate, and was entitled to conclude that the applicant's claims were not substantiated. The application was dismissed and the applicant was ordered to pay the Minister's costs in the sum of $3200.

Orders

Orders of the court

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.

The application is dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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. 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. 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. 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”. 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”. 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”.