SZGLY v Minister for Immigration - [2005] FMCA 1252

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGLY v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1252

MIGRATION – RRT – Chinese Falun Gong practitioner – did not attend Tribunal hearing – no error found.

Migration Act 1958 (Cth), ss.425(a), 426(a), 441(a)(4), 441(c)(4), 474(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZGLY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1463 of 2005

Judgment of:

Smith FM

Hearing date:

23 August 2005

Delivered at:

Sydney

Delivered on:

23 August 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S Burnett

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal be joined as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1463 of 2005

SZGLY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) which seeks judicial review of a decision of the Refugee Review Tribunal dated 29 January 2001 and handed down on 15 February 2001. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A give the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth), and is subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations on my powers have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa.
In the present case, the applicant arrived in Australia on a three-month visitor's visa in August 1998. On 2 May 2000 he applied for a protection visa assisted by an agent, Jin Teng. His application attached a short statement in which he said: “I have been a loyal follower of Falun Gong for almost four years.” He said that he had taken up the practice in 1996, and:
I gradually adhered to Falun Gong after months of practice. Besides taking part in regular classes held by local station,

I studied Falun Gong written Falun Dafa written by our master Hongzhi LI as well. The tolerance spirit advocated in this book changed my attitude towards life.
He said that since arriving in Australia “I continued practicing Falun Gong on a regular basis”, and that following a crackdown by Chinese authorities in July of 1999 he took part in a protest in Sydney. He said:
I also contacted the my fellow practitioners in China to learn their situation. It was not surprising at all that the Chinese authorities controlled all the Chinese media and launched a propaganda against Falun Gong and its leader. My fellow practitioners in China were totally unaware of the truth. I felt indignant and started collecting and mailing them the reports by foreign media such as excerpt of Human Rights report published by the U.S. Department of State. My fellow practitioners felt great shock at the degree to which the Chinese regime had distorted the truth. They circulated these clippings secretly. Unfortunately, the Public Safety Bureau found their activities and searched their home and detained the key persons. I learned later that the key persons who I mailed the reports were not only tortured by the police but lost their jobs after release. The police also went to my home in China to search for further evidence. My friends warned me if I dared to go back to China I would be at great danger.
A delegate refused the application on 12 May 2000. The delegate referred to the fact that the applicant had stayed illegally in Australia for one year after the expiry of his visitor's visa and before applying for a protection visa. The delegate did not accept that his activities in Australia created for him a real chance of being persecuted on return to China.
The applicant lodged an application for review by the Refugee Review Tribunal on 20 June 2000, assisted by his agent, Jin Teng. His application gave a home address at Berala and a Haymarket post office box as his address for service. The application also indicated that he had authorised his agent to act for him in relation to his application, and noted that copies of correspondence would be sent to the advisor. A statement attached to the application recounted claims of a similar nature to those attached to his visa application.
On 14 June 2000 the Tribunal wrote to the applicant at his post office box and to his agent, acknowledging receipt of the application. It indicated that the applicant might be asked whether he wanted to come to a hearing, and advised him to send any new documents or written evidence to the Tribunal at the earliest possible point in the review process.
By letter dated 10 November 2000, the Tribunal informed the applicant that it had looked at all the material relating to his application but:
it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims.
The letter was posted to the applicant at his post office box and at his Berala home address, and a copy was also sent to his agent. The letter very clearly drew the applicant's attention to the fact that:
If you do not attend the hearing and a postponement is not being granted the Tribunal may make a decision on your case without further notice.
On 27 November 2000 his agent lodged a ‘response to hearing information’ form, which indicated that the applicant did wish to attend the hearing. However as the Tribunal notes in its reasons the applicant did not attend the hearing: “and no other information was submitted”. The Tribunal also noted that the applicant did not provide any explanation for not attending, and it said:
One would usually expect a person with a genuine fear of persecution and torture, a person in great danger should he return to China, to take more interest in this application than has the applicant. There may be, of course, valid explanations for his failure to attend hearing arranged at his request, or to provide any further material when faced with an unfavourable decision. No explanations are before me however, and I am reluctant to conclude that the applicant has a genuine fear of persecution.
The applicant has today accepted that he was invited to a hearing, that he did not attend, and that he had been told about the hearing by his agent. His reasons for not attending were unclear, but appear to be that he did not appreciate the importance of his attendance. This is unfortunate, since under the Migration Act this was the only opportunity to attend a hearing he could expect to be given.
In my opinion the Tribunal was entitled to proceed to make a decision without taking any further action to allow or enable the applicant to appear before it. This power was given by s.426A of the Migration Act, and I am satisfied that it was available to the Tribunal in the present case by reason of compliance with the provisions governing service of the invitation (see ss.425A, 441A(4), 441C(4) and regulation 4.35D).
In its reasons for affirming the delegate's decision, the Tribunal identified the applicant's claims and said:
I am not satisfied, on the very limited evidence available to me, that the applicant is a genuine Falun Gong practitioner, or if he is, that his practice of Falun Gong would place him at any risk of persecution in China
The Tribunal pointed to aspects of the claims made by the applicant which left unclear and unsupported important aspects of his claims.
I can find no error made by the Tribunal in its reasoning which gives rise to jurisdictional error on its part.
The applicant's application to this Court was filed on 6 June 2005. It was accompanied by no explanation as to the long delay in seeking judicial review, and why it is only made once the applicant was taken into detention. However, I need not address whether the application should be dismissed by reason of that delay since I do not consider that it has any substantive merit.
The application fails to state a ground for review with any meaningful particulars. Two general grounds are asserted, the first is:
The Tribunal failed to give me an opportunity to comment on a matter.
I do not know what the "matter" is which is referred to. I consider the applicant was given every opportunity to fill in the gaps in his claims which caused the Tribunal not to be satisfied as to their truth. There was no adverse matter which the Tribunal took into account which natural justice or a provision of the Migration Act required it to put to the applicant.
The second general ground was:
The Tribunal was in error of law as findings were open it from my side fact and evidence.
I have difficulty understanding this ground. The Tribunal made no error of law by not accepting the applicant’s evidence. I can identify no error of law vitiating the Tribunal's decision.
The applicant today was at a loss for words, and was unable to make any argument in support of his application. For the above reasons I have not found jurisdictional error affecting the Tribunal's decision, and it is therefore a privative clause decision within s.474(1) of the Migration Act for which relief is barred.
I must therefore dismiss the application.

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

Associate: Iliya Marovich-Old

Date: 31 August 2005