SZFXF v Minister for Immigration - [2006] FMCA 1366

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFXF v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1366

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China because of his practice of Falun Gong – applicant failing to attend RRT hearing – decision made in his absence – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.426A
Migration Regulations 1994

Applicant:

SZFXF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG657 of 2005

Judgment of:

Driver FM

Hearing date:

13 September 2006

Delivered at:

Sydney

Delivered on:

13 September 2006

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents:

Mr I Muthalib
Blake Dawson Waldron

ORDERS

The Court directs that the title of the first respondent be amended to The Minister for Immigration and Multicultural Affairs.
The Court directs that 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 $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG657 of 2005

SZFXF

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”). The Refugee Review Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 17 February 2005. The applicant is from China and had made claims of persecution based upon his practice of Falun Gong. Background to the applicant’s protection visa claims and the RRT’s decision on them is conveniently set out in the Minister’s written submissions filed on 10 July 2006.

I adopt as background with minor amendments for the purposes of this judgment paragraph 2.1 to 2.6 of those written submissions:
The applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then called) (the Department) on 14 October 2004 (court book, page 1). That application was refused by a delegate of the Minister on 1 November 2004 (court book, page 31). On 1 December 2004, the applicant applied to the RRT for review of the delegate's decision (court book, page 44).
The applicant is a citizen of the People's Republic of China. He claimed that in the early 1990s, along with people in his village, he began to practice Falun Gong. He further claimed, that in late 1999, the Chinese government suddenly banned Falun Gong, claimed it to be illegal and persecuted practitioners. The applicant claimed he was detained and put into a detention centre and asked to provide the name of the person who organised his group. He stated that he was compelled to attend class every week but he continued to practise Falun Gong in his home and was reported but continued to practise. He claimed that if he is returned to China he will be persecuted by the local government (court book, page 25).
Application to, and findings of, the RRT
The RRT had before it the Department's file. In his application to the RRT (court book, pages 44-47) the applicant made no claims regarding his claims to refugee status and provided the RRT with no further information regarding those claims.
By letter dated 23 December 2004, the RRT sent, to the applicant's address for service on his application to the RRT (court book, page 46), a letter inviting the applicant to attend a hearing because it was unable to make a decision in the applicant's favour on the information before it (court book, pages 50-51). The RRT received no response to that invitation (court book, page 59) and the applicant did not appear before the RRT at the time and place of the scheduled hearing.
Accordingly, the RRT proceeded to make a decision pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”) (court book, page 59).
The RRT noted that the information provided by the applicant about his circumstances was very vague. He had provided no evidence of his membership of Falun Gong, had not stated when he was detained by the authorities, where and for how long he was detained, nor why he was released. He had also not explained why, if he was subsequently reported to the authorities for continuing to practise Falun Gong , as he had claimed, he was not detained again. He had also not provided any documentary evidence in support of his claims. The RRT found that the fact that he had been able to obtain a passport and leave China using it was not consistent with a claim that he was of any adverse interest to the authorities. The RRT found that without further details from the applicant it was unable to establish the relevant facts and was therefore not satisfied that the applicant had a well-founded fear of persecution (court book, pages 60-61).
The applicant relies upon his amended application filed on 31 May 2005. That application raises several grounds of review, but only in the most general terms, and in a template form with which the Court has become familiar. The applicant confirmed from the bar table that he was being assisted by a friend with his application to the Court.

His friend had prepared written submissions for him but those had not been filed. The applicant thought that he had brought a copy of those submissions with him, but he could not find them. He was unable to make any meaningful oral submissions in relation to the grounds of review in his amended application.
Essentially, however, I understand that the applicant is concerned that his claims of persecution were not accepted. He says that he and two other persons arrived in Australia together on 28 September 2004 and that all were Falun Gong practitioners who feared to return to China. He said that one of the three has since returned to China, but is living in the mountains in fear. The third claimant remains in Australia while his claims are being considered by the RRT.
The applicant failed before the RRT essentially because he had not provided sufficient information to enable the RRT to make a favourable decision. The presiding member dealt with the circumstances in the RRT decision on page 59 of the book of relevant documents which I received as evidence for the purposes of today’s hearing. Relevantly, the presiding member said:
On 23 December 2004 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing on 25 January 2005. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received, and the Tribunal’s letter was not returned unclaimed. As the applicant had no migration agent and had not provided a contact telephone number, the Tribunal was unable to make contact with him. A check of the records held by the Department and the Tribunal showed no more recent address for him, and the Department’s records showed that he had not left Australia.
The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable him to appear before it.
The hearing invitation referred to by the presiding member appears on pages 50 and 51 of the court book. The letter is dated 23 December 2004 and invited the applicant to attend the hearing on 25 January 2005.
The applicant denied from the bar table that he had ever received that letter. It was however addressed to him at his nominated address for service in his review application (court book, page 46). In addition, I accept from the affidavit of Oliver David Young, made on 13 September 2006, which I received as evidence, that the letter was dispatched in accordance with the Migration Regulations 1994 and that the applicant in consequence was deemed to have received it pursuant to the Migration Act.
The failure by the applicant to attend a hearing by the RRT was in no way the fault of the RRT, and there is nothing further that the RRT could usefully have done to bring the hearing application to the applicant’s attention. The RRT was entitled to proceed as it did, pursuant to s.426A.
In the absence of more detailed claims from the applicant, the outcome of his review application was inevitable. There is no substance to the claims in the amended application of a constructive failure to exercise jurisdiction or bias. It is true that the applicant has lost an opportunity to present his claims thoroughly to the RRT, but his opportunity has been lost in circumstances which do not give rise to any jurisdictional error.
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. I will so order.
I will direct that the title of the Minister be amended by deleting the words “and Indigenous” from the amended application and I will further direct that the Refugee Review Tribunal be joined as the second respondent to the application.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $3,500. The applicant asserted his inability to pay costs, but that is not a reason for the Court to refrain from making a costs order. I am satisfied that costs of at least $3,500 have been properly and reasonably incurred on behalf of the Minister, when assessed on a party-party basis.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 25 September 2006