SZFTY v Minister for Immigration
[2005] FMCA 1295
•6 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFTY v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1295 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in PRC as a member of the Falun Gong – failure to attend hearing or communicate with Tribunal about non–attendance. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 425; 426A; 474 |
| S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 |
| Applicant: | SZFTY |
| First Respondent: | MINISTER FROM IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 505 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 September 2005 |
| Date of Last Submission: | 6 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2005 |
REPRESENTATION
| The Applicant appearing for himself |
| Solicitors for the Respondent | Mr I. Muthalib, Blake Dawson Waldron |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent
That the Application filed 25 February 2005 be dismissed.
That the Applicant pay the costs of the Respondent in an amount of $1200.00.
That the Applicant pay the costs in accordance with Order 4 within 28 days unless otherwise agreed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 505 of 2005
| SZFTY |
Applicant
And
| MINISTER FOR IMIGRATION & MULTICULTURAL & INDIGEONOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) not to grant a protection visa to the Applicant.
The Applicant was born on 25 December 1959 in Jiangsu, in the Peoples Republic of China (“the PRC”).
The Applicant is a citizen of the PRC.
The Applicant claims that he legally departed on 4 September 2003 from Pudong Airport.
On 5 September 2003, the Applicant arrived in Australia.
On 2 October 2003, the Applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”) on the basis of persecution by the government of the PRC arising from his membership and involvement in the Falun Gong organisation.
On 5 December 2003 a delegate of the Minister refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 14 November 2003, the Applicant filed an application for review before the Tribunal. On 25 March 2004, the Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 25 February 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision (“the Application”). The grounds of the Application are as follows:
“1. RRT failed to look at the fact both subjectively and objectively and ignored the truth that the applicant has genuine and well-founded fear of persecution upon returning to China due to his belief in Falun gong and also his close friends and members of group’s arrestment.
2. RRT was seeking reasons to decide against the applicant rather than considering the case fairly and reasonably based on the information put before it.
3. RRT fails to consider fact on the applicant’s specific circumstances instead of looking at the case unfairly and generally based on the so-called country’s information.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s claims
The Applicant’s claims before the Tribunal were contained in a letter in support of his protection visa dated 2 October 2003 and in a statement filed on 14 November 2003 in support of his application for review before the Tribunal. Both documents contain substantially the same claims.
The Applicant claimed that he sought protection because he hated the “corrupt Chinese government” and because he has been a Falun Gong practitioner since 1999. He claimed to have been in trouble since October 2000 when he was questioned by the local police many times by reason of his active membership of Falun Gong. He claimed that his family was also questioned and he was forced to write a confession promising that he would cease his involvement in Falun Gong activities. The Applicant claimed that he was watched every day because he was the “big leader”. He claims to feel no freedom and has been living in fear because the police could arrest him because of his Falun Gong activity. He claimed that members of his group were arrested by the government and forced to identify leaders in the group.
In the delegate’s decision dated 5 December 2003, it was made apparent to the Applicant that the details provided were not sufficient to find that the Applicant had a well founded fear of persecution for a Convention related reason, were he to return to the PRC, by reason of his claim of involvement in Falun Gong.
On 6 February 2004, the Tribunal invited the Applicant to attend a hearing on 2 March 2004. It informed the Applicant that, having considered the material before it in relation to the application for review, the Tribunal was unable to make a decision in the Applicant’s favour on this information alone. A copy of the letter of invitation was sent to the Applicant at both the home address and mailing address identified by him in his application for review. I note that the letter, addressed to the Applicant at his home address, was marked “Return to Sender” and received by the Tribunal on 17 March 2004.
On 25 March 2004, the Tribunal handed down its decision. The Tribunal noted in its decision that the Applicant did not attend the hearing before the Tribunal or contact the Tribunal to explain his failure to attend. The Tribunal also noted that mail previously sent to the Applicant by the Tribunal was returned unclaimed, that the Applicant did not have an authorised recipient or migration agent and that the telephone number provided by the Applicant on his application for review appeared to be disconnected. In those circumstances, pursuant to s.426A of the Act, the Tribunal decided to proceed to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.
I am satisfied that the Applicant was invited to attend the hearing in accordance with s.425 of the Act, and properly exercised its discretion, under s.426A of the Act, to proceed to make a decision on the review without providing the Applicant a further opportunity to attend a hearing.
The Tribunal identified the Applicant’s claims and accepted that the Applicant is a citizen of the PRC. However, due to the lack of detail in respect of his claims of his involvement with Falun Gong, the Tribunal was not satisfied that the Applicant was involved in Falun Gong prior to coming to Australia, that he has been involved with Falun Gong in Australia, or that he would be involved with Falun Gong if he returned to the PRC. Accordingly, the Tribunal was not satisfied that the Applicant had any problems with the authorities of the PRC in the past arising from his claimed involvement in Falun Gong and was, therefore, not satisfied that the Applicant has a well founded fear of persecution for that reason.
Further, the Tribunal was not satisfied that the Applicant has a well founded fear of persecution arising from his claimed hatred of the “corrupt Chinese government”.
The Tribunal noted that the Applicant did not claim to fear persecution for any other Convention related reason and that none arose on the evidence before it.
The Tribunal concluded that it was not satisfied that the Applicant is a person to whom Australia owes protection under the Refugees Convention as amended by the Refugees Protocols. Accordingly, the Tribunal affirmed the decision not to grant a protection visa.
The proceeding before this Court
The Applicant appeared unrepresented before this Court but with the assistance of an interpreter.
The Applicant confirmed that he was relying on his Application filed in this Court on 25 February 2005.
The Applicant confirmed that he has filed no other document, despite having been directed to file and serve an Amended Application by 31 May 2005 and submissions in support 14 days before the hearing.
Despite several invitations, the Applicant did not seek to make any submissions before this Court in support of his Application. Each of the grounds identified in his Application was read to him and he was invited to say anything he wished in support of each ground. It was pointed out to the Applicant that none of the grounds contained relevant particulars and if he wished to identify any, at this point in time, he may do so. The Applicant declined to say anything further.
In relation to Ground 1, the Applicant appears to be disagreeing with the findings and conclusions of the Tribunal. The findings of the Tribunal were open to it on the material before it. They are findings of fact.
Accordingly, this Court has no jurisdiction to interfere and this ground is rejected.
In relation to Ground 2, the Applicant appears to be making a claim that the Tribunal was biased. No particulars were provided in respect of such a serious allegation. Further, the Tribunal notified the Applicant that, having considered the material before it, it could not make a decision favourable to the Applicant and invited him to attend a hearing. The Applicant did not attend. It is apparent from the Tribunal’s decision that it considered the Applicant’s claims and sought to give reasons in respect of the difficulties it had with the Applicant’s claims.
The Applicant is taken to have assumed the risk that unsatisfactory features of his material, including omissions, would be noted by the Tribunal without an opportunity to the Applicant to explain or clarify them (s58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [25]). This is particularly so where the Applicant received an invitation to attend a hearing before the Tribunal that clearly stated that the information presently before it was not sufficient to make orders in favour of the Applicant (WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 (“WACO”)). The Full Court of the Federal Court in WACO at [46] stated that:
“There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward”.
Accordingly, this ground is rejected.
In relation to Ground 3, the Applicant appears to be claiming that the Tribunal did not consider the Applicant’s specific circumstances, rather, it based its decision on the “so called country’s information”.
However, whilst the Tribunal had before it the Department’s file, which contained independent country information, it did not refer to such country information in its decision. The Tribunal decision was clearly based on its finding that it was not satisfied that the Applicant was involved in Falun Gong in the PRC, in Australia, or, that he would become involved, if he were to return to the PRC.
Accordingly, this ground is rejected.
Conclusion
In the circumstances, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the Application filed 25 February 2005 is dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 6 September 2005
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