SZGGT v Minister for Immigration

Case •

[2005] FMCA 1568

•

18 October 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGGT v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1568
MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of China claiming a well founded fear of persecution because of practice of Falun Gong and political opinion – failure to understand claim – whether RRT failed to considered relevant matters – claim that RRT failed to investigate – where Applicant did not attend RRT hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 425, 426A, 475A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Applicant: SZGGT
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 1211 of 2005
Delivered on: 18 October 2005
Delivered at: Sydney
Hearing date: 18 October 2005
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Crawley
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. Leave to join Refugee Review Tribunal as a Second Respondent in these proceedings.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,950.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1211 of 2005

SZGGT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal that was made on 18th February 2004. The Tribunal handed down its decision on 11th March 2004. The decision of the Tribunal was to affirm the decision of a delegate of the Minister for Immigration not to grant a protection visa to the Applicant.

Background

  1. The Applicant is a citizen of the People's Republic of China.


    He arrived in Australia on 4th June 2003. On the 30th of that month he applied for a Protection (Class XA) Visa. On 1st July 2003 a delegate of the Minister refused that application. On 4th August 2003 the Applicant applied for a review of that decision by the Refugee Review Tribunal. The Applicant provided a typed statement to the Refugee Review Tribunal which was attached to his application for review. The statement was prepared on behalf of the Applicant's wife and himself.  The Tribunal wrote to the Applicant informing him that the Tribunal had received his application. The Tribunal later wrote to the Applicant on 8th December 2003 asking the Applicant and his wife to attend a hearing of the Refugee Review Tribunal. That hearing was scheduled for 2:00 pm on Tuesday 13th January 2004. The Tribunal wrote to the Applicant about the hearing because the Tribunal considered that it was not able to make a decision in the Applicant's favour based on the written material that had been provided. In cases such as that, s.425 of the Migration Act makes it necessary for the Tribunal to hold a hearing.  Unfortunately the Applicant through his migration agent wrote back saying that he did not want to come to a hearing of the Tribunal.

  2. What happened next is that the Applicant's wife wrote to the Tribunal saying that she wanted to withdraw her application for review because she planned to leave Australia on 14 January 2004. The Applicant himself wished to continue with his application and did not wish to leave Australia.  The Tribunal then made the finding that it no longer had a valid application before it in respect of the Applicant's wife. The Tribunal found that it therefore had no jurisdiction to review the decision of the delegate of the Minister in respect of the Applicant's wife. The Tribunal found that it still had jurisdiction to review the decision of the delegate of the Minister in respect of the Applicant himself.  The Tribunal made its decision based on the material that was before it. The Tribunal did not give the applicant another opportunity to attend the hearing. The Applicant of course had already told the Tribunal through his migration agent that he did not wish to attend the hearing.

  3. The Tribunal then used its power under s.426A of the Migration Act to consider the Applicant's application based on the material that was before it. At pages 74 and 75 of the Court Book the Tribunal sets out the evidence relating to the applicant's claim. That evidence included the application for a visa itself, a partial copy of his passport, a statement of claims in support of his application for a protection visa and the further statement made by the Applicant in support of his application for review by the Refugee Review Tribunal.

  4. The Tribunal considered the Applicant's claim that he was opposed to corruption and when he attempted to expose such corruption in China he was accused of being a follower of Falun Gong. He claimed that he was advised to leave his employment where he had worked from 1983 onwards or else he would suffer trouble which would damage his life and family. He claimed that he organised for his wife and himself to travel to Australia on business in order to escape it. He also claimed that on his arrival in Australia he had in fact become a member of the Falun Gong organisation and if he were to return to China he would be in danger of persecution because of his adherence to the practice of Falun Gong.  The Tribunal set out its findings and reasons at pages 75 through to 77 of the Court Book.

  5. The Tribunal reviewed the written evidence and commented in paragraph 26 on page 76 on the lack of specific details about important matters, including the persecution that he claimed to have suffered.  After reviewing the evidence, the Tribunal member was not satisfied that the Applicant faced a real chance of suffering persecution because of his efforts to expose corruption, being framed and accused of being a Falun Gong adherent or for being a Falun Gong adherent if he returns to China. Accordingly, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution in the foreseeable future if he were to return to China by reason of his religion, political opinion or for any other Convention reason. The Applicant was taken into immigration detention on 5th May 2005.  He has remained in detention until the present day.

  6. On 11th May he filed an application for review of the Refugee Review Tribunal decision. In that application the Applicant sought writs of prohibition and mandamus and sought a declaration that the decision of the Tribunal was made in excess of jurisdiction. He provided three grounds to his application and during the course of the hearing I asked him to elaborate on each of the three grounds.

  7. The first ground is a statement that if the Applicant returns to his country he will be at risk of suffering persecution within the meaning of the Refugees Convention. That is a statement of the Applicant's claim but it is in fact a request for a review of the merits of his claim which is beyond the jurisdiction of the Court.  It is well established by decision such as Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 that a Court conducting judicial review of a decision of the Refugee Review Tribunal does not have the jurisdiction to review the merits of the applicant's claim. In other words, the Court does not reconsider the factual findings of the matter and substitute its own view for that of the Tribunal. Quite clearly that ground of review must fail.

  8. The second ground of review is this:

    Member of Refugee Review Tribunal failed to understand my claim and failed to consider relevant matters.  Further particulars to be provided.

  9. The Applicant did not provide further written particulars so I asked him to elaborate on this claim at the hearing. He reiterated that if he were to go back to China he would definitely be persecuted. I asked him about the failure to consider relevant matters by the Tribunal, and he told the Court that when his migration agent prepared the claim for review he did not explain the applicant's claim clearly and what he wrote did not match what the Applicant had told him.

  10. I have considered the decision of the Refugee Review Tribunal in the light of the applicant's second ground. In my view, the entire decision shows that the Tribunal did understand the Applicant's claim and the basis for it. I cannot see any relevant matter that the Tribunal has failed to consider.  I note that the Tribunal at paragraph 29 and paragraph 30 on page 77 of the Court Book considered the Applicant's claim that he had acquired refugee status sur place. This refers to his taking up the practice of Falun Gong after his arrival in Australia. The Tribunal member noted, however, that a claim of refugee status sur place is subject to sub‑s.91R(3) of the Migration Act which provides that any conduct engaged in by the Applicant in Australia must be disregarded in determining whether he or she had a well-founded fear of being persecuted for a Convention reason unless the Applicant satisfies the Tribunal that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention. In my view, the Tribunal's reasons relating to the Applicant's vague and generalised evidence led the Tribunal to accept that the claim - or found that the Tribunal was unable to accept that the claim had been advanced for any other purpose than to elaborate on the Applicant's claims for refugee status.

  11. The third ground set out in the application is this:

    The Respondent refused to grant my protection visa application without any proper grounds and proper investigation.

  12. There is no obligation upon the Tribunal to make inquiries or to investigate an applicant's claim. As the solicitor for the Respondent submits, it is for the Applicant to make out his claims.  I am referred to the decision of Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 and 170. The Applicant was invited to attend a hearing before the Tribunal but the applicant, based on what he says was advice from his migration agent, chose not to attend the Tribunal. He thus forfeited his right to give oral evidence and lost the opportunity to persuade the Tribunal that it should in fact grant his application.

  13. The Applicant said that the migration agent told him that it was not necessary for him to go to the hearing. He said that the agent had said to him that he did not understand the law and he did not understand English. As a result, if the Applicant were to go to the hearing, he would just look like a fool. Regrettably, the advice that the Applicant says was given to him by his migration agent is very bad advice indeed. The whole purpose of the Tribunal having a hearing under s.425 of the Migration Act is where the material available to the Tribunal does not permit the Tribunal to make a finding in the Applicant's favour.  That is why the Tribunal schedules a hearing so that the Applicant can give oral evidence or produce further documentary evidence in order to assist the Tribunal to assess his claim.  It may well be that when a party attends a Tribunal hearing he or she is able to explain things that were not otherwise clear to the Tribunal member or fill in the gaps, so to speak, in the Tribunal's knowledge. By not attending the hearing of the Refugee Review Tribunal, the Applicant loses that valuable opportunity.

  14. In all too many cases a decision by an applicant not to attend the Tribunal hearing leads to no other result than a refusal of the application.  The Court hears all too often from applicants who say that their migration agent told them not to attend the hearing. The Applicant was only able to remember the migration agent's English name of Simon and say that his office was in Chinatown in Sydney in a building near a restaurant.  Unfortunately that is not very helpful as far as identifying the migration agent is concerned.

  15. As I said, I have read through the decision of the Refugee Review Tribunal. I see no error as far as jurisdictional error is concerned. In my view, the Tribunal member did his best with the material that he had. He considered the Applicant's claim for refugee status based not only on matters that took place in China but based also on his claim relating to what had happened since he arrived in Australia. The Tribunal member was not able to be satisfied that the Applicant had made out his case. There is no reviewable error. The application is a privative clause decision that attracts the provision of s.474 of the Migration Act.  The application is dismissed.

  16. There is an application for costs. The Applicant has been wholly unsuccessful in his claim and it is appropriate to make an order for costs in favour of the Minister. The amount sought is a lump sum of only $2,950.00, which is well within the scale provided by the Federal Magistrates Court Rules. The Applicant is to pay the First Respondent's costs fixed in the sum of $2,950.00. I require a transcript of my reasons for this decision. The Applicant may be returned to his former detention. I remove the application from the list of cases awaiting finalisation.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  26 October 2005

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