SZFWZ v Minister for Immigration

[2006] FMCA 1264

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFWZ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1264

MIGRATION – Review of RRT decision − where applicant claimed persecution on Convention ground of religion (Falun Gong) − where Tribunal invited applicant to appear at the hearing − where applicant failed to attend − where applicant did not submit any reviewable grounds of jurisdictional error on the part of the Tribunal.

Migration Act 1958, ss.65, 426A(1)

Applicant: SZFWZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG640 of 2005

Judgment of: Raphael FM

Hearing date: 16 August 2006

Date of Last Submission: 16 August 2006

Delivered at: Sydney

Delivered on: 16 August 2006

REPRESENTATION

For the Applicant: In Person

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $2,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG640 of 2005

SZFWZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia on 30 September 2004.  On 11 October 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 1 November 2004 a delegate of the Minister refused to grant a protection visa and on 1 December 2004 the applicant applied for review of that decision.

2. On 23 December 2004 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.  The Tribunal invited the applicant to a hearing on 24 January 2005.  There is nothing in the court book to indicate that the applicant responded to that hearing invitation.  He did not attend the hearing.  On 24 January 2005 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 15 February.

3. The applicant’s claim to be a person to whom Australia owed protection obligations arose out of his membership of Falun Gong which he said he had started to practice in 1998.  He told in his statement [CB 26-27] how he had gone to the Chon Qing City government building to demonstrate in favour of Falun Gong.  He does not state when he went to that building or provide any other details concerning the demonstration. 

4. The applicant tells how in December 2002 several policemen broke in to his house and took him to a labour camp.  He claims that he was there subjected to brainwashing and torture of quite a serious nature.  He does not tell how long he was in the camp nor when he was released.  He does not tell what occurred to him thereafter but he says that he realised that he would face more serious treatment if he stayed in China, so he collected money from all of his friends and sold his house in order to bribe a powerful government officer to issue a passport and applied for a visitor’s visa to Australia.

   In a short decision the Tribunal says:

   “He has made a number of assertions about his past difficulties which include an account of very serious harm to him.  However, he has submitted no documentary evidence that he was or is actually a practitioner of Falun Gong, that he was detained in the labour camp or that he has suffered serious injuries of the type described in his statement.  I consider it would be reasonable to expect him to provide some if not all of such evidence.  Further, his account is lacking in basic details such as where he was detained in the labour camp and how long he was held there.  He has also not stated what problems he had, if any, after he was released from the camp.

   In the absence of such evidence I am unable to establish the relevant facts. 

   The Tribunal is not satisfied, on the limited evidence before it, that the applicant has a well founded fear of persecution within the meaning of the Convention.”

5. Leaving aside the probability of an applicant being able to obtain reports from a labour camp confirming that he was tortured and hospitalised, the Tribunal was entitled to feel that unless it obtained some further information about the applicant’s claims it would not be able to satisfy itself of their veracity so as to invoke Australia’s protection obligations. The requirement for satisfaction is set out in s.65 of the Migration Act 1958 (the “Act”) which mandates that if the Tribunal is not satisfied it must refuse to grant a visa. 

6. The application filed in this court on 15 March 2005 provides two grounds both of which assert factual matters and do not in any way address the possibility that the Tribunal may have fallen into jurisdictional error in the way in which it determined the application.  Today I asked the applicant what he had to say and he repeated his assertion that he was a Falun Gong practitioner and that he had been unable to attend the Tribunal hearing.  He told me that this was because he was new to Australia and could not find the premises of the Tribunal.  It is perhaps unfortunate that if this did occur he did not use the letter that he had had from the Tribunal to telephone its offices and explain the situation.  Instead, he allowed 18 months to pass before advising the court of the reason why he had not attended.

7. The Tribunal is entitled under the provisions of s.426A(1) to proceed in the absence of the applicant and there is nothing to suggest that the Tribunal was aware of any circumstances which would have rendered its so doing unfair or improper. I am satisfied that there were no errors in the processes adopted by the Tribunal in this case. The Tribunal concluded that it was unable to be satisfied of the matters required by the Act, and therefore was unable to do any more than decline the application for a visa and in so doing did not fall into jurisdictional error.

8. The application is dismissed.  The applicant must pay the respondent’s costs which I assess in the sum of $2,500.  The court orders that the Refugee Review Tribunal be added as second respondent to these proceedings.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: