SZGMO v Minister for Immigration - [2005] FMCA 1832

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGMO v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1832

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

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

VNAA v Minister for Immigration (2004) 136 FCR 407

Applicant:

SZGMO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1501 of 2005

Judgment of:

Smith FM

Hearing date:

25 November 2005

Delivered at:

Sydney

Delivered on:

25 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr A Cox

Solicitors for the Respondents:

Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1501 of 2005

SZGMO

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 orders by way of judicial review of a decision of the Refugee Review Tribunal dated 18 April 2005 and handed down on 11 May 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Under s.483A the Court has the same jurisdiction as the Federal Court under s.39B of the Judiciary Act 1903 (Cth), but this is subject to limitations under Part 8 of the Migration Act. The limitations have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant’s claims should be believed, nor whether she qualifies for a refugee visa or any other permission to stay in Australia.
The applicant arrived in Australia on 26 October 2004 on a one-month business visa. She lodged an application for a protection visa on 24 November without any apparent assistance from an agent. Her application gave a residential and postal address in Pitt Street, Sydney.
Attached to the application was a short typed statement giving her claims to protection in Australia from being returned to the People’s Republic of China. She said:
In 1996, I heard about Falun Dafa from my friend and learned it, I felt better then I regularly practised it with other practitioners. In China everyone knows Falun Dafa. It is not linked with politic, and people exercised it usual for improving health. I read the book called “Zhuan Falun Gong” and “China Falun Gong”, the book explained the principles of life, science and the human condition and more clearly than other materials have ever read.
She referred in general terms to the banning of Falun Dafa in China and the mistreatment of Falun Gong practitioners. In relation to her own experience, she said only:
I believe Falun Dafa and never given it up. In China a lot of practitioners have been sent to gaol or been interviewed by local government. I have received warnings from the government many times. I worried one day I would be another victim because of my religion and I pretty sure that I am facing a risk of being gaoled. I love life, people; I thought again and again and got advice from my friend, I determined to leave China. So I paid lots of money to get passport and visa. Here in Australia, I do not worry my religion; I can do whatever I want to do. I realise the definition of the term “refugee”; I believe I am a person who fears persecution for reason of religion if being returned to my home country.
No more details were given to the Department, nor to the Tribunal when the applicant appealed.
A delegate refused the application on 19 January 2005.
The applicant’s application for review by the Tribunal lodged on 22 February 2005 does not reveal the assistance of any adviser or migrant agent. The applicant gave as her residential and mailing addresses the same Pitt Street address as previously given to the Department. She gave no telephone numbers.
On 22 February 2005 the Tribunal sent her a letter telling her that she might be invited to a hearing if the Tribunal could not decide favourably on the papers. It told her that a hearing would be important as: “your opportunity to give the Tribunal evidence to support your application”.
By letter dated 17 March 2005 posted to her Pitt Street address the Tribunal told the applicant:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter invited the applicant to attend a hearing to give oral evidence and present arguments in support of her claims on 14 April 2005.
In its reasons handed down on 18 April 2005, the Tribunal said the following in relation to the invitation to the hearing:
On 17 March 2005 the Tribunal wrote to the applicant, at the address she gave as her mailing address in her application for review. The Tribunal advised in its letter that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 14 April 2005. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. No response was received nor was the letter to the applicant returned to the Tribunal.
The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. In these circumstances, and pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
In my opinion, the letter inviting the applicant complied with the provisions of the Act and Regulations so as to entitle the Tribunal to proceed pursuant to s.426A, and I can see no error of discretion in its decision to proceed under that provision in the absence of the applicant.
The applicant today has conceded that she did not go to the hearing. She said that she missed the opportunity because when she received the letter she did not understand it, and did not ask someone to translate it to her until it was too late. She did not claim that any contact had been made with the Tribunal before it handed down its decision, which could have alerted it to the possibility that she did not actually receive or understand the invitation. In those circumstances, the fact that she did not have actual knowledge of the hearing does not invalidate the Tribunal’s decision to proceed under s.426A (see VNAA v Minister for Immigration (2004) 136 FCR 407 at [16]).
I can see no defect in the procedures followed by the Tribunal which could constitute jurisdictional error.
In the Tribunal’s reasons for affirming the delegate’s decision, it referred to the absence of significant details in her claim for a protection visa, and to some inconsistencies. It said:
Generally there is little detail of the applicant’s involvement in and practise of Falun Gong and the persecution she alleges. It would be expected that this detail, together with some clarification of the matters referred to above, would be forthcoming from the applicant, either in writing in the applications or orally at a hearing, if her claims were genuine and could be substantiated.
For the above reasons the Tribunal is not satisfied on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.
In my opinion, the Tribunal’s reasoning about the applicant’s claims was open to it as a matter of law, and I can see no jurisdictional error affecting its conclusion and decision to affirm the delegate’s decision.
The application filed in this Court on 9 June 2005 merely repeated the applicant’s general claims to be a refugee, without pointing to any defect affecting the Tribunal’s decision and going to its exercise of jurisdiction.
An amended application filed on 10 August 2005 makes general assertions of error of law and failure to follow procedure, without giving particulars relating the contentions to the particular decision of the Tribunal. As I have indicated above, I have not been able to find any such errors.
The contention in the amended application that:
There was no evidence or other materials to justify the making of the decision.
does not appreciate that the Tribunal’s decision was based upon a lack of satisfaction rather than a positive finding of any sort. As the Tribunal pointed out: “the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as necessary to enable the examiner to establish the relevant facts”. The applicant’s applications failed due to the insubstantial claims which had been presented.
For the above reasons I find that the Tribunal’s decision was not affected by jurisdictional error. It is therefore a privative clause decision within s.474(1) of the Migration Act and I must dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 9 December 2005