SZFUY v Minister for Immigration
[2005] FMCA 1235
•11 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFUY v MINISTER FOR IMMIGRATION | [2005] FMCA 1235 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision – where the applicant did not attend the hearing of the RRT – claim “That the RRT decision was effected to take into account of relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa” not a ground for obtaining relief. PRACTICE & PROCEDURE – Summary dismissal – no reasonable cause of action disclosed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A
Federal Magistrates Court Rules 2001, r 13.10
NAXV v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 346.
SZAKV v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 222
SZAKV v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1160
| Applicant: | SZFUY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 546 of 2005 |
| Delivered on: | 11 August 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 August 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Burnett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 546 of 2005
| SZFUY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application by way of a Notice of Motion brought by the Respondent asking that the substantive application should be summarily dismissed.
The grounds for the application for summary dismissal are that the application does not disclose a reasonable cause of action.
The Applicant has applied for review of a decision of the Refugee Review Tribunal made on 30 December 2004 and handed down on
28 January 2005. The Refugee Review Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection visa. The Applicant arrived in Australia in July 2004 and applied for a protection visa on the 9th of that month. In that application he said that he had a well-founded fear of persecution as a result of his organising workers to participate in activities in support of the activists who took part in the Tiananmen Square demonstrations in 1989 and because of his fear that he would be persecuted as a result of his practice of Falun Gong. He said that in September 2004 the police had come to arrest him and he had been beaten and questioned. He obtained a passport with the help of a friend.
It seems clear that the date that the Applicant gave when the police came to arrest him was incorrect. It should in fact be September 2003. The Applicant was already in Australia in September 2004.
His application for a protection visa was refused on 27 July 2004 and he lodged his application for review on 2 September 2004.
The Refugee Review Tribunal invited the Applicant to attend a hearing on Thursday, 25 November 2004. In that letter the Tribunal said that it had considered the material before it in relation to his application, but was unable to make a decision in his favour on this information alone. The letter went on to say:
We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.
The Applicant told the Court that he thought this letter came from the Department of Immigration and Multicultural and Indigenous Affairs. He said that he feared to attend the hearing of the Tribunal because he thought that he could be arrested. He told the Court today that he was unable to find anyone who could translate that letter for him. I find this statement difficult to believe as he had managed to obtain people to assist him to prepare an application for a protection visa in English and an application for review to the Refugee Review Tribunal in English. He has also obtained assistance from people who he says are students to prepare his application and amended application to this Court.
The Applicant forwarded a reply to the Tribunal to indicate that he did not wish to attend. Consequently, the Tribunal proceeded to consider the substance of the application on the basis of the material that it had. It is quite clear that the Applicant's decision not to attend the hearing of the Refugee Review Tribunal was a very serious mistake. The material that had been provided to the Tribunal was relatively brief. It is not surprising that the Tribunal was not satisfied that his application should not succeed.
In his amended application where the Applicant said that he had assistance from some students he sets out several grounds and particulars. The first ground I will quote in full:
That the RRT decision was effected to take into account of relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa.
I do not know what that means and I asked the Applicant what he meant by that. He said he did not know. In any event, I am satisfied that it is not a ground for obtaining relief and it is close to meaningless.
The Applicant gives particulars. He said that the Tribunal did not properly consider in assessing the chance of his persecution on his return to China. This is no more than a challenge to the factual finding of the Tribunal and a decision on the merits of the case is solely the task of the Tribunal.
The Applicant claimed that the Tribunal failed to exercise its jurisdiction as it failed to prove that he would not be persecuted on his return to China. At the hearing the Applicant said that his claim was not so much bias, but there were many things that he did not understand. The Applicant said he did not understand that it was not the task of the Tribunal to disprove his claim. I would comment that it is up to an applicant to prove his or her case. The Applicant claims that the Tribunal could not provide a rational or logical foundation for its decision, but in my view, the decision shows that the Tribunal considered the meagre amount of material that was available to it.
The Applicant says that the Tribunal did not observe the Migration Act properly in making the decision, but he was unable to say why that should be so. The Applicant said that the Tribunal failed to consider his claims, but it is clear that the Tribunal did consider the information before it, scant though it may be. The Applicant says:
I will provide more details to support my judicial review application in my outline of submission.
No further details have been provided.
The Applicant also says that the Tribunal did not provide him with adequate particulars of the independent information, nor did it provide him with an adequate opportunity to respond to the substance of the information. The fact is that the Applicant chose not to attend the hearing and it is difficult to see how the Tribunal could have provided any information to someone who was not there.
The Applicant unfortunately has held the view that he would be arrested if he attended the hearing of the Refugee Review Tribunal. That may well arise from his concerns about the authorities in China. There is no reason why he would have been arrested had he attended the Tribunal hearing and the Applicant appears to be unable to comprehend the Refugee Review Tribunal is an independent body and is not part of the Department of Immigration and Multicultural and Indigenous Affairs.
As I mentioned previously, the Applicant's failure to attend the hearing and give oral evidence about his case was a very serious mistake. At page 69 of the court book the Tribunal member makes this quite clear:
The Applicant's political views, the nature and extent of his political activities after 1989 and any persecution he claims to have suffered by reason of his political views could have been the subject of discussion at a hearing before the Tribunal. The Applicant's claimed involvement in Falun Gong, his claimed arrest and the consequences of that claimed arrest would likewise have been discussed. The Applicant was informed that I was unable to make a decision in his favour on the material before me, but, as referred to above, he elected not to come to the scheduled hearing to give oral evidence and present arguments in support of his claims.
That indeed makes it quite clear that the Applicant's failure to attend the hearing was a fatal mistake as far as his application was concerned. The Refugee Review Tribunal was entitled to reject his claim on the basis that it could not be satisfied without further detail provided by the Applicant. I refer to NAXV v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 346 and SZAKV v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 222 which was affirmed on appeal as SZAKV v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1160.
There is no reviewable error. The application is dismissed. I vacate the hearing date of 10:15 am on 12 September 2006. The Applicant is to pay the Respondent's costs fixed in the sum of $3,000. I require a transcript of my reasons for this decision. The application is removed from the list of cases awaiting finalisation.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 29 August 2005
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