SZFVW v Minister for Immigration
[2006] FMCA 1021
•18 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFVW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1021 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in china as a Falun Gong practitioner – no reviewable error found – application dismissed. |
| Migration Act 1958, ss.424A, 425, 426A |
| S58 of 2003 v Minister for Immigration [2004] FCAFC 283 SJSB v Minister for Immigration [2004] FCAFC 225 |
| Applicant: | SZFVW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG589 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 18 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 July 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr J Bird Phillips Fox |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the application.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG589 of 2005
| SZFVW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). I will order that the Refugee Review Tribunal be joined as the second respondent to the application. The decision was handed down on 2 February 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts concerning the applicant's protection visa claims and the decision of the RRT on them are set out in the Minister's outline of written submissions filed on 5 June 2006. I adopt paragraphs 2 to 8 of those submissions as background for the purposes of this judgment:
The applicant is a male citizen of the People's Republic of China born on 5 October 1968.[1] He arrived in Australia on 23 July 2004.[2] He applied for a protection visa on 30 July 2004. His claims were set out in a statement accompanying that application.[3]
[1] court book, page 30
[2] court book, page 1
[3] court book, pages 26 -27
The applicant claimed to fear persecution because he was a Falun Gong practitioner. He claimed to have organised meetings with friends to discuss political opinions and stated that he was the target of an investigation at the end of April 2004.
The application was refused on 22 October 2004.[4] The applicant applied to the RRT for review of the original decision on 26 November 2004.[5] No further claims were contained in his application for review to the RRT.
[4] court book, pages 34 - 35
[5] court book, pages 44 - 47
The RRT wrote to the applicant on 15 December 2004 inviting the applicant to attend a hearing on 13 January 2005.[6] The letter was sent by registered post to the address for service provided by the applicant in his application for review. The applicant did not attend the hearing.
The RRT proceeded to make its decision on 13 January 2005.[7] The decision was handed down on 2 February 2005.
The decision of the RRT
The RRT affirmed the decision. It accepted that some Falun Gong practitioners are persecuted in China. However, it was not satisfied on the limited evidence provided, that the applicant:
a)was a Falun Gong practitioner;
b)had a subjective fear of persecution because of his alleged Falun Gong activities; or
c)was persecuted in China or feared future persecution in China on the basis of his political opinions.
The RRT found that the applicant's assertions were "untested" and "unclear and are lacking detail in important respects."[8] It considered that the applicant's claims could not be substantiated without further details.
[6] court book, page 50
[7] court book, page 57
[8] court book, page 62
These proceedings began with a judicial review application filed on 9 March 2005. The applicant relies upon an amended application filed on 8 June 2005. That application asserts, in terms that are difficult to understand, various jurisdictional errors. No coherent particulars were provided. What are described as particulars appear to me to be assertions of legal error in general terms. What is described as particular 7 is an assertion of factual error. The applicant was unable to expand upon the amended application during argument at the hearing of the matter today. He asserted bias but was unable to explain why, other than to restate the fact that he was unsuccessful in his application.
The Minister deals with the legal issues that might conceivably be relevant to this application in paragraphs 10 through to 15 of her outline of written submissions. I agree with those submissions and adopt them for the purposes of this judgment:
The RRT could not grant the applicant a protection visa unless it was satisfied that the criteria for the grant of a protection visa were met: SJSB v Minister for Immigration [2004] FCAFC 225 at [15] to [16]).
It was required to notify the applicant if it could not make a finding in his favour on the documents before it, and invite him to attend a hearing (s.425). The RRT complied with that obligation, sending the invitation to the address for service nominated by the applicant.
When the applicant failed to appear before the RRT, it was entitled to make a decision without taking any further action to enable him to appear (s.426A). The applicant “cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity”: S58 of 2003 v Minister for Immigration [2004] FCAFC 283 at [26].
The recent decision of the Full Court in SZEEU v Minister for Immigration [2006] FCAFC 2 does not affect the RRT's decision.
Contrary to the reference in paragraph 7 of the applicant's amended application, the RRT did not find that the applicant "would not have been able to obtain [his] passport to come to Australia if he was a 'target for investigation.'" The RRT clearly finds that the applicant did not provide sufficient detail in support of his assertion that he was a "target for investigation".
It is manifestly clear that the applicant was unsuccessful before the RRT due to a lack of detail[9] and because there was "no persuasive evidence"[10] to enable it to reach the requisite state of satisfaction. Section 424A has no application in this situation: see SZCIA v Minister for Immigration [2006] FCA 238 per Allsop J at [11]-[13].
[9] See court book, page 62, paragraph 2
[10] court book, page 63
I find that the decision of the RRT is free from any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,300. The applicant did not wish to be heard on costs. I accept the Minister's party/party assessment of costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application fixed in the sum of $3,300.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 July 2006
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