SZGCH v Minister for Immigration

[2005] FMCA 1849

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGCH v MINISTER FOR IMMIGRATION [2005] FMCA 1849

MIGRATION – Summary dismissal of application for review where no cause of action shown and where applicant has not complied with order of the court.

Migration Act 1958, s.426A
Federal Magistrates Court Rules 2001

Applicant: SZGCH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 948 of 2005

Judgment of: Raphael FM

Hearing date: 7 December 2005

Date of Last Submission: 7 December 2005

Delivered at: Sydney

Delivered on: 7 December 2005

REPRESENTATION

Solicitors for the Applicant: Applicant in Person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Substantive application dismissed pursuant to Part 13 Rule 13.03(2)(b) and Rule 13.10 of the Federal Magistrates Court Rules.

2. Applicant to pay the respondent’s costs in the sum of $1,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG948 of 2005

SZGCH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. There comes before me an application by the respondent Minister that the application filed by the applicant on 18 April 2005 be dismissed on the grounds either that the applicant has failed to comply with an order of the Registrar of this court to file and serve an amended application giving complete particulars of each ground of review relied upon, which amended application should have been filed by 8 July 2005, or further or in the alternative, the application be dismissed pursuant to Rule 30.10 of the Federal Magistrates Court Rules2001 on the basis that no reasonable cause of action is disclosed in relation to the proceedings or the claim for relief.  It is also suggested that the claim is frivolous or vexatious or an abuse of process.

1. The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 24 October 2004. On 2 November 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 23 November 2004 a delegate of the Minister declined to grant a protection visa. The applicant applied for review of the delegate's decision by the Refugee Review Tribunal on 30 December 2004 and on 17 January 2005 he was invited to attend a hearing before the RRT on 23 February 2005. The letter inviting him to attend a hearing made it clear that the Tribunal was not able to grant him a protection visa on the basis of the information before it alone. By 17 February 2005 the applicant had not responded to the hearing invitation and the Tribunal proceeded to deal with his application pursuant to s.426A of the Migration Act 1956 (Cth).  On 24 February 2005 the Tribunal determined to affirm the decision of the delegate and it handed down that decision on 17 March 2005.

2. The applicant's claim to have a well-founded fear of persecution for the convention reasons of membership of a particular social group and/or political and/or religious opinion was based upon his alleged membership of the Falun Gong.  He claimed that he was a leader of the Falun Gong in Tianjin, that he had been given many warnings from the local police.  The applicant claimed that in December 1999 he was put into detention for one month and in September 2002, after he took part in a demonstration against the local government, he was placed into detention for two months and was forced to attend re-education classes.

3. The details of the applicant's claims, which I have set out above, were contained in a written statement made by him which does not significantly add any detail thereto.  The Tribunal came to the conclusion that it was unable, in the absence of the applicant, to obtain sufficient information to allow it to be satisfied that he had a genuine fear of persecution and that there was a real chance that he would be persecuted.  The view of the Tribunal expressed at [CB 63] is understandable as the Tribunal says at [CB 64]:

   “The applicant claims to be a practitioner of Falun Gong and to have been detained by the authorities because of this but provides no detail to establish these claims, nor does he provide any information of the harm he fears on his return to China.  On this very limited, vague and unreliable evidence available, the Tribunal cannot be satisfied at the applicant's claim that he was involved in Falun Gong and was arrested or that he faces harm on his return to China.”

1. Before me today the applicant stated that he did not appear before the Tribunal because he could not read the letter of invitation and that he hoped to have another opportunity to attend before the Tribunal so that he could explain his position.  Even if I accept the applicant's statement as true this will not affect the Tribunal's decision or create a jurisdictional error.  There may be an argument that where an applicant is not represented by a migration agent a hearing invitation letter should be addressed to him in a language that he can understand, but equally it might be said that a person applying for refugee status who receives an important looking letter from the Tribunal to which he has made an application has his own responsibility to ensure that he understands what that letter says.

2. I have read the document that is colloquially known as the “green book” and I am satisfied that there are no reasonable prospects of success in the applicant's claim that the Tribunal fell into jurisdictional error in the manner in which it came to its conclusions in his case.  I am also satisfied that the applicant failed to comply with an order of this court, being an order which would have given him the opportunity to articulate any alleged jurisdictional error.  The applicant attended before the Registrar and has told me that he was assisted by an interpreter.  The applicant signed the orders made by the Registrar and can therefore be taken to have been aware of the requirement to file and serve the amended application by 8 July.

3. I dismiss the substantive application pursuant to Part 13 Rule 13.03(2)(b) and Rule 13.10 of the Federal Magistrates Court Rules on the basis that no reasonable cause of action is disclosed in relation to the proceeding or claim for relief. I do not deal with the other claims made by the respondent and found as 2(b) and (c) in the application.

   
   

   I order the applicant to pay the respondent’s costs in the sum of $1,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: