SZGHX v Minister for Immigration
[2005] FMCA 1270
•17 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGHX v MINISTER FOR IMMIGRATION | [2005] FMCA 1270 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of China – no reviewable error – privative clause decision – where Applicant did not attend RRT hearing. |
| Judiciary ACT 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.426A; 475A |
| Applicant: | SZGHX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1253 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 August 2005 |
| Date of Last Submission: | 17 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2005 |
REPRESENTATION
| The Applicant: | No appearance |
| Solicitors for the Respondent: | Mr Chami Clayton Utz |
ORDERS
The application is dismissed pursuant to Rule 13.03A (d) and in the alternative pursuant to Rule 13.03A(c) as the Applicant was absent from the final hearing.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1253 of 2005
| SZGHX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made on 29 March 2005 and handed down on 19 April 2005. The decision of the Tribunal was to affirm a decision a delegate of the Minister made on 17 January 2005 refusing an application for a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australia on 3 November last year and lodged an application for a protection visa on 8 December. The delegate of the Minister refused the application for a protection visa and on 1 February this year the applicant applied to the Refugee Review Tribunal for a review of that decision.
The Tribunal wrote to the applicant on 16 February informing him that it was unable to make a favourable decision on the material before it and invited the applicant to attend a hearing. That hearing was to be held on 21 March this year. The applicant did not respond to the invitation and the Refugee Review Tribunal took the decision to exercise its powers under s 426A of the Migration Act to proceed to decide the matter without giving the applicant any further opportunity to attend the hearing.
The Tribunal member read through the applicant's claims, which as Mr Chami for the respondent pointed out, were contained in a
half-page typed statement submitted with his visa application. The Tribunal summarised those claims in its decision. Basically the applicant claimed a well-founded fear of persecution because he was a member of the organisation known as Falun Gong and had been a member since 1997. The organisation was later banned by the Chinese authorities and the applicant complained that in May 2004 the police came to his home where he and other members were involved in the practice of Falun Gong and detained and tormented the parties physically.The applicant was eventually released after representations by his family members. He obtained a temporary business visa in late October 2004 and he arrived in Australia by virtue of that visa.
The Refugee Review Tribunal noted that the applicant had not attended the hearing despite being given an opportunity to do so but did not decide the application on that basis. The Refugee Review Tribunal based its decision on (a) the vagueness and incompleteness of the applicant's claim which led to the Tribunal not being satisfied about (i) the applicant's relevant personal circumstances; (ii) the genuineness and nature of his claimed adherence to Falun Gong; (iii) particulars of his alleged arrest in May 2004; (iv) the duration of his detention and what he had done between release from detention and the time he left China in November 2004; (v) the reason why he obtained a passport in 2002 and a visa to enter Malaysia in 2003; and (vi) his intentions in relation to his practice of Falun Gong and what fears that he had if he returned to China, and (b) the Tribunal was not satisfied that he was a Falun Gong practitioner or that he had attracted the adverse attention of Chinese authorities in the past or that there were other past or current circumstances giving rise to a well-founded fear of persecution within the meaning of the convention.
The applicant filed his amended application on 26 July 2005. It made claims of bias, of failing to assess the chance of persecution on the applicant's return to China, not providing a rational or logical foundation for refusing his application, and failing to properly comply with the provision of the Migration Act, and failing to consider his claims.
The fact is that the applicant provides no evidence whatsoever of any of these matters, notwithstanding the fact that he claimed in his amended application that he would provide more information. He has not done so. In particular it is difficult to see how he could claim that the member was biased when he did not even attend the hearing of the Tribunal and there is nothing from the decision that would indicate that there was any bias expressed.
I have read through the decision of the Refugee Review Tribunal. I am unable to discern any jurisdictional error and it appears to me regrettable that the applicant did not attend the hearing of the Refugee Review Tribunal. Had he done so he may well have been able to give evidence to satisfy the Tribunal as to the genuineness of his claims.
He has provided no evidence to the hearing to indicate any reviewable error by the Tribunal. I am satisfied that there is no reviewable error and that the decision of the Refugee Review Tribunal is a privative clause decision within the meaning of the Migration Act.I propose to dismiss the application pursuant to Rule 13.03A(d) and in the alternative, pursuant to Rule 13.03A(c) noting that the applicant was absent from the final hearing, this not being the first Court date.
This is clearly a matter for costs. The applicant has been wholly unsuccessful, and indeed has not attended to prosecute his claim.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 29 August 2005
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