SZGJU v Minister for Immigration
[2005] FMCA 1422
•31 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGJU v MINISTER FOR IMMIGRATION | [2005] FMCA 1422 |
| MIGRATION – Review of decision of RRT – where the applicant was invited to attend the hearing but chose not to – where the Tribunal did not believed that the applicant suffered serious harm by virtue of being a member of Falun Gong – whether or not the application for review contained any ground that constitutes jurisdictional error. |
| Migration Act 1958, ss.91R, 426A Federal Magistrates Court Rules 2001 |
| SZDFO v Minister for Immigration [2004] FCA 1192 |
| Applicant: | SZGJU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1349 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 31 August 2005 |
| Date of Last Submission: | 31 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2005 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $3,000 pursuant to Part 21 Rule 21.02(02)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1349 of 2005
| SZGJU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People Republic of China. He arrived in Australia on the 11th of July 2002. On the 3rd of August 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 22 August 2002 a delegate of the Minister refused to grant him a protection visa. On 16 September 2002 the applicant sought review of that decision.
On 20 August 2003 the Tribunal wrote to the applicant via his migration agent and also to his address at home advising him 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 so that he could give oral evidence and present arguments in support of his claim. On
9 September 2003 the Tribunal received a response to the hearing invitation sent in a fax from the migration agents advising it that the applicant did wish to come to a hearing but on the 19th of September 2003 a fax was sent from the migration agent [CB 46] advising the Tribunal that the applicant would not be coming to the hearing. The Tribunal therefore considered his application upon the basis of the information before it in accordance with the provisions of s.426A of the Migration Act 1958 (Cth) (the “Act”). On the 23rd of September 2003 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on the 16th of October.The applicant's claim to the protection of Australia is set out in a statement found at [CB 26-27]. That statement indicates that between 1975 and 1996 he worked as a tailor for a clothing manufacturer.
In 1997 he was promoted to manager. He appears to have remained in that employment until he left for Australia. The applicant had a second business. He was a bookseller in a stall on the corner of Xinhua Square in his town. Falun Gong practitioners prior to 1999 exercised in that square. He became friendly with one of them and agreed to allow papers of the organisation to be left with him and to provide power for their video cassette. In July 1999 he was taken to a police station and accused of being a Falun Gong member. He says that he was detained for 48 hours and he had his bookshop closed. He claims that he was requested by the police to write reports upon the Falun Gong movement. He decided that this was unbearable and that he should leave China which he did in 2002.The Tribunal recited this information in its decision and then referred to the decision of the delegate noting that the delegate had indicated that she did not consider what occurred to the applicant amounted to serious persecution within the meaning of s.91R of the Act and the Tribunal noted the other grounds upon which the delegate had refused a protection visa. It made these observations because the Tribunal wished to point out that the applicant would have been aware that there were difficulties with his application and that these could best be accommodated by him going to the hearing which the Tribunal had offered him.
The Tribunal's reasons for decision are contained at [CB 56]. They are short. They note that the applicant provided only the barest outline of what occurred to him in China and that he had made no additional claims to those that I have already referred to. The Tribunal said:
"The applicant's claims raise a number of questions. For example, he left China for Australia in July 2002. According to his statement, the incident with the Falun Gong practitioners happened in July 1999. It appears that the only problems he had on account of his connection with them were at that time, in late July 1999. It is possible, when he says that he was “often asked to write reports about Falun Gong” that he is referring to incidents which happened some time after July 1999 but that is not clear. Unless he had continuing problems with the authorities after July 1999, it is reasonable to conclude that the authorities had no further interest in him after that time and that it is unlikely they would have had any continuing interest in him in the future. This would be consistent with the applicant's statements that he was not a Falun Gong practitioner himself and it was only on account of helping the group that he attracted the attention of the authorities."
The Tribunal went on to say that it did not believe that even if the events which the applicant had rehearsed in his statement had taken place they constituted serious harm within the meaning of the Act either on their own or in combination with the alleged period of detention. In these circumstances the Tribunal was not satisfied that the applicant had made out his claim and therefore it could not be satisfied that he faced a real chance of persecution within the meaning of the Convention.
The applicant sought review from this court of the decision of the Tribunal by filing an application on 20 May 2005. This was nearly two years after the decision of the Tribunal and only appears to have occurred because the applicant was now in immigration detention. The application asserts that he has a well founded fear of persecution "For reason of my Falun Gong practitioner in China". He states "The Tribunal was in error law, those findings were open to it from my side, fact and evidence". Finally he indicates that "The Tribunal failed to take relevant consideration into account to exercising its power to determine to the applicant as a refugee."
When the applicant appeared before me today he told me that he had been persecuted because he practiced Falun Gong and that was why he came to Australia. He asked why he would not be granted refugee status and informed me that he was very fearful of returning to China. The applicant was unable to provide me with any glimpse of the possibility of jurisdictional error in the Tribunal's decision and as I told him that I would include within my judgment an indication of the role of the court I will do so by referring to the decision of his Honour Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 where his Honour says:
"[8] The structure of the legislation, being the Migration Act and in particular s 474 of that Act, as interpreted by the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476 only entitles the Federal Magistrates Court or this Court to interfere with what the Tribunal has done if there is found to be what is referred to as jurisdictional error.
[9] What that means is as follows: the error to be demonstrated as committed by the Tribunal must be one that reveals a failure to carry out its statutory task. That is, it must be shown that the statutory authority and duties placed upon the Tribunal have not been complied with. . [His Honour then gives examples of error].
[10] These are the main examples. Conformably with High Court authority, factual error is rarely reflective of jurisdictional error. There may be circumstances where findings of fact are such as to demonstrate that the Tribunal has misunderstood its task. There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.
[11] Within the kinds of boundaries that I have just identified the findings of fact and the assessment of evidence is a matter for the Tribunal in the exercise of the executive power. The Parliament has chosen not to permit the courts to review factual material beyond the proper confines of identifying jurisdictional error. It is against that legal background that the appellant needs to understand the reasons for the disposition of his appeal.
[12] It should be plain, I hope, from what I have said that it is simply outside my statutory authority and judicial authority to make up my own mind as to whether Australia owes the appellant protection obligations. The only task I am permitted today is to seek to identify whether the learned Federal Magistrate committed any reviewable error in his approach to the dismissal of the application made in respect of the Tribunal's decision.”
My task today is to identify whether the Tribunal made any reviewable error in the manner in which it came to its decision in respect to this particular applicant. I cannot see that it did. The Tribunal's job is to determine whether or not it reaches a state of satisfaction. In this case the Tribunal had very little to go on in order to reach that state. The applicant could have provided assistance by appearing but he chose not to. The Tribunal was obliged to proceed on the information that it had. Although the applicant told me today that he was a Falun Gong practitioner it is clear from the information that he provided to the delegate and the Tribunal that he did not claim to be so at that time. He was the object of an imputed political opinion or an imputed membership of a particular social group.
It was open to the Tribunal from the evidence before it, which included certain independent country information that is referred to in the decision, to come to the conclusion that the complaints made by the applicant did not as a matter of fact constitute persecution within the meaning of s.91R of the Act. That is what the Tribunal did and I am unable to find any grounds upon which that decision can be impugned.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,000 pursuant to Part 21 Rule 21.02(02)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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