SZGKH v Minister for Immigration - [2005] FMCA 1327

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGKH v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1327

MIGRATION – VISA – Protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the Applicant – Applicant a citizen of People’s Republic of China – claim of well-founded fear of persecution for reason of religion – Applicant claims persecution for attending Christian meetings – where Applicant did not attend Refugee Review Tribunal hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 475A

Applicant:

SZGKH

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File No:

SYG 1372 of 2005

Delivered on:

1 September 2005

Delivered at:

Sydney

Hearing date:

1 September 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Ms Watson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

I grant leave to join the Refugee Review Tribunal as a Second Respondent in these proceedings.
The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1372 of 2005

SZGKH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application brought under the provisions of s.39B of the Judiciary Act for review of a decision of the Refugee Review Tribunal. The decision was made on 13 July 1999. A copy of the decision was posted to the Applicant at his last known postal address on 13 July 1999.
The decision of the Tribunal was to affirm the decision of the Delegate of the Minister not to grant the Applicant a protection visa. The Applicant is a citizen of China. He arrived in Australia on 8 September 1998. On 14 September 1998, he lodged an application for a protection visa. In that application, he claimed to have a well-founded fear of persecution if he were to return to China. His application, which was prepared with the assistance of the migration agent, referred to the fact that he had religious beliefs which were not popular with the government of China.
In his statement, he said that he started to attend Christian religious meetings in 1986. He said that in 1990, his family was questioned by officers of the Public Security Bureau about their religious activities. The Applicant said that he would attend religious meetings at “anti-unofficial” churches and would encourage others to attend those meetings. The Applicant said in his statement that he was detained for three weeks in April 1998. During that time, he was questioned about his religious activities. When he was released, he did not return to work. He feared that he would be imprisoned, so he decided to leave China. He obtained a passport and left China.
He said that since he left, his family have been under surveillance by the PSB. He said that if he returned to China, he believed he would be persecuted by government authorities. He said that he would not be able to get protection from the Chinese government. On 28 January 1999, a Delegate of the Minister refused his application for a visa. On 25 February 1999, the Applicant sought a review of that decision by the Refugee Review Tribunal. He nominated his migration agent to act as his agent for the purpose of those proceedings.
On 20 April 1999, the Refugee Review Tribunal wrote to the Applicant at the postal address that was given in his application. The letter told the Applicant that the Tribunal had looked at all of the material relating to his application, but it was not prepared to make a favourable decision on that information alone. The Tribunal asked the Applicant to come to a hearing of the Tribunal to give oral evidence in support of his claims. The Applicant, through his migration agent, sent back a form to the Tribunal saying that he did want to attend a hearing.
As a result, the Tribunal listed the hearing for 11.30 am on Tuesday, 8 June 1999. On the day before the hearing, the Applicant's migration agent sent a fax transmission to the Refugee Review Tribunal. The facts said:
Our client just informed us now at 5:40 pm that he is very sick and is unable to attend tomorrow's hearing at 11:30 am.
The fax message asked the Tribunal to reschedule the hearing. On 9 June 1999, the Tribunal wrote to the Applicant at his migration agent's address. The Tribunal said that the hearing was now scheduled for 10:30 am on Friday, 18 June 1999. The Applicant did not attend.
On 13 July, the Tribunal handed down its decision. In the decision, the Tribunal noted that the Applicant did not attend the postponed hearing and did not contact the Tribunal to explain his failure to attend. The Tribunal then proceeded to determine the matter on the evidence that was before the Tribunal. The Tribunal gave its decision, which is in fairly brief terms. The Tribunal noted at page 67 of the Court Book that the Applicant claimed to fear persecution due to his religious activities, but all of his claims were mere assertions on his part and not supported by any independent evidence.
The Tribunal said that the Applicant's failure to attend the hearing meant that the Tribunal had not been able to satisfy itself as to the credibility of even his most basic claim to be a Christian. The Tribunal noted that the Applicant not had even demonstrated that the authorities in China intended to punish him seriously enough as to amount to persecution in the Convention sense. The Tribunal referred to independent country information which the Tribunal said indicated that most Christians, particularly in Fujian, would face no more serious problem than detention for a period of time.
The Tribunal said that the independent information suggested that the Applicant would not have been able to obtain his passport and exit permits if he were the subject of adverse interest by the authorities.
The Tribunal also said that the Applicant's own statement of his claims suggested that he was under no pressure or fear when he came to leave China. The Tribunal noted that the Applicant obtained his passport in May 1998 but did not leave China for another three or four months after that. The Tribunal said that the Applicant had been put on notice that the Tribunal was unable to make a favourable decision on the information before it, that he had not provided any further information in support of his claim.
The Tribunal also said that by his failure to attend the hearing, the Applicant had not given the Tribunal any opportunity to explore aspects of his claims with him. The Tribunal said at page 68 of the Court Book:
A number of relevant questions are therefore left unanswered.
The Tribunal was not satisfied on the evidence that the Applicant had a well-founded fear of persecution within the meaning of the Convention. The Applicant says that he was not informed of the adjourned hearing date or for at least a period of time, the result of the Tribunal hearing. I am informed by the solicitor for the Respondent that the applicant joined in the well-known Muin and Li class action in the High Court.
The Applicant did not provide any details of that involvement. The Applicant was taken into immigration detention on 4 May 2005. He is still in detention. In his application filed on 26 May 2005, the Applicant seeks an order that the Tribunal's decision should be set aside. He gives three grounds for his application. In paragraph (a), he says that he is a citizen of China who claims to have a well-founded fear of persecution for reasons of his religious beliefs in China. This ground does not disclose any grounds for relief.
The second ground, ground (b), says that the Tribunal failed to take relevant consideration into account to exercising its power to determine the Applicant as a refugee. The applicant was not able to tell the Court what relevant consideration the Tribunal had failed to take into account. Quite clearly, the Tribunal was unable to satisfy itself in relation to the Applicant's claims because there was so little evidence before it. The Applicant's claim has been described correctly by the Respondent in her submission as nothing more than a challenge to the merits of the decision.
It is well known that a Court exercising judicial review does not have the power to review the merits or the factual basis upon which the Tribunal makes its decision. Decisions on factual questions are entirely within the jurisdiction of the decision maker. The Applicant's next ground, which is ground (c), says that the Tribunal was in error of law. The ground continues by saying that:
Those findings were open to it from my side face and evidence.
The ground says that the Tribunal made an error of law but does not set out what that error of law was. The rest of the ground particularised is not able to be understood. The Applicant does not speak English and he said that someone helped him prepare the document. It would seem that the person who helped the applicant prepare his document did not have a very good command of English either. I cannot discern any evidence of an error of law made by the Tribunal. The fact is that the Applicant just did not attend the hearing.
The Applicant did not give the Tribunal sufficient material to allow it to be satisfied that he met the test for being a refugee. There is no reviewable error that I have been able to ascertain on my reading of the decision. I find that the decision of the Refugee Review Tribunal made on 13 July 1999 is a privative clause decision. There is no reviewable error. There is no jurisdictional error.
It is unfortunate for the Applicant that he did not attend the hearing of the Refugee Review Tribunal. The fact that the Applicant did not attend the Tribunal hearing is not a ground for sending the matter back to the Tribunal for another hearing. When the Applicant recorded that he was sick, the Tribunal postponed his hearing to give him an opportunity to attend. Regrettably, he did not take that opportunity. The application is dismissed. I require a transcript of my reasons for this decision. The application is removed from the list of cases awaiting finalisation.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 12 September 2005