SZGBG v Minister for Immigration
[2006] FMCA 1350
•7 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGBG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1350 |
| MIGRATION – Review of RRT decision − where applicant did not respond to the Tribunal’s invitation to attend the hearing − where Tribunal proceeded to refuse the application in the absence of the applicant under s.426A − where applicant claimed not to have received the invitation − whether Tribunal breached rules of procedural fairness. |
| Migration Act 1958, ss.65, 426A, 441A, 441C |
| Applicant: | SZGBG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 890 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 7 September 2006 |
| Date of Last Submission: | 7 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2006 |
REPRESENTATION
| Applicant in Person | |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5000 in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
The Refugee Review Tribunal to be named as the second respondent to these proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 890 of 2005
| SZGBG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. He arrived in Australia on
21 October 2004. On 1 November 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 22 November 2004 a delegate of the Minister refused to grant the protection visa and on
22 December 2004 the applicant applied for a review of that decision.
In his application for a protection visa the applicant gave as his personal address “PO Box K1118 Haymarket”. It was at that address that the Department wrote to the applicant on 22 November 2004, advising him that his application for a protection visa had been declined [CB30-31].
The applicant applied for a review of the decision of the delegate on 22 December 2004. In the form which he completed, he gave as his address for service “PO Box K1118 Haymarket”. On 13 January 2005 the Tribunal wrote to the applicant to advise 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. The letter was sent to PO Box K1118.
No reply to that hearing invitation was received but the letter was not returned. On 14 February 2005 a telephone call was made to the mobile number provided by the applicant, but the call was diverted to a message bank. Another call was made on 15 February but no contact with the applicant was made.
The Tribunal on 21 February 2005, the date fixed for the hearing, noted that the applicant was not in attendance, notwithstanding that he had been advised of the date of the hearing and that he was not contactable at the telephone number which he had given. As the applicant had not appeared, the Tribunal determined, pursuant to s.426A of the Migration Act 1958 (“the Act”), to make a decision on the review without taking any further action to enable the applicant to appear before it.
The grounds upon which the applicant sought the protection of Australia are contained in a statement found at [CB25]. The applicant claims in that statement to be a practitioner of Falun Gong. He gives some general information about the Falun Gong, noting that in October 1999 it had been declared an evil cult by the Chinese authorities, and that practitioners were punished. He gives no personal details of any persecution which he suffered. In its decision, the Tribunal noted the existence of persecution of Falun Gong practitioners, but stated at [CB56]:
“The reason that the Tribunal cannot be satisfied about the above matters [that the applicant is a Falun Gong practitioner, and that he cannot or will not return to China because he fears persecution there now or in the reasonably foreseeable future due to his Falun Gong activities either in Australia or China] is that the applicant’s claims are essentially untested assertions and are unclear and lacking in detail in important respects.
There is no detail of his practice of and involvement with Falun Gong in China, e.g. when/how often he practised, who he practised with, whether he was involved in spreading Falun Gong in China. There is no detail about his involvement with Falun Gong activities in Australia, e.g. although he states that he practises at home each day in Australia, he gives no detail of his claimed group practice, where and when he practises, who he practises with, what he does to propagate Falun Gong and ‘influence people’.
In his application for his protection visa, the applicant states that he paid bribes to get his passport, but gives no further detail about why this was necessary and how this was achieved. Further, the Tribunal notes that the applicant’s passport was issued in September 2002 in his home town, and his visa for Australia was granted in Shanghai on 22 September 2004, but he did not leave China to come to Australia until 20 October 2004. If the applicant was persecuted in China or feared persecution for his Falun Gong activities, and he states that he has been practising Falun Gong for the past eight years, it is unclear why he did not leave China earlier than he did. The applicant appears to have lived at the same address in China for 10 years prior to leaving.
In the Tribunal’s views, these facts are not consistent with the applicant’s claims about fear of persecution in China for his Falun Gong activities.”
In his application form, filed with this court on 11 April 2005, the applicant gives his address for service as a place in Liverpool, but gives another address as his address being “PO Box K1118”. The application states that the Tribunal failed to comply with its obligations pursuant to the Act and denied the applicant procedural fairness. No particulars are provided. The applicant was ordered to file and serve an amended application giving complete particulars of each ground of review relied upon by 19 July 2005, but he did not do so.
Before me today the applicant’s sole claim appeared to be that he had not received the invitation to the hearing. I found this difficult to accept, given the fact that the Tribunal letter found in the court book was addressed to the PO box in the Haymarket that all other correspondence was addressed to, and it would seem that the applicant must have received some of that correspondence, because if he had not received it he could not have known about the result of his case and would not have been in a position to file the application to this court.
In any event, the Tribunal noted that it had invited the applicant to a hearing on 13 January, which is the date of the letter, and I am prepared to infer from that that the letter was dispatched within three working days of the date of the letter, and thus it complied with the provisions of s.441A(4)(a) as a method by which the Tribunal gives documents to a person other than the Secretary.
Having complied with this sub-section, the notice was deemed to have been given to the applicant pursuant to s.441C(4), and therefore the Tribunal was entitled under s.426A to proceed to hear the matter without making further reference to the applicant. It was quite reasonable for the Tribunal to have done this. The letter was not returned, and the telephone calls had not been answered.
Section 65 of the Act requires the Minister to be satisfied that the criteria for the grounds of the visa have been met. If the Minister is not so satisfied, she is not allowed to grant a visa. If an applicant makes a series of untestable assertions, backed up by no evidence whatsoever, it is not surprising that the Tribunal would not be able to come to the state of satisfaction that is required by the Act. This is what occurred in this case. The Tribunal did not fall into jurisdictional error in the way it made its decision, and I am therefore unable to provide the applicant with the relief he seeks.
I dismiss his application, and I order that the applicant pay the first respondent’s costs which I assess in the sum of $5000. To the extent necessary, I order that the Refugee Review Tribunal be named as the second respondent to these proceedings.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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