SZGNI v Minister for Immigration - [2006] FMCA 1706

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGNI v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1706

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong practice – did not attend hearing – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.426A, 474(1), 483A

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicant:

SZGNI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1535 of 2005

Judgment of:

Smith FM

Hearing date:

1 November 2006

Delivered at:

Sydney

Delivered on:

1 November 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr K Sinnadurai

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal is included 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

SYG1535 of 2005

SZGNI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 15 June 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). It seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 April 2005 and handed down on 13 May 2005. The Tribunal affirmed a decision of a delegate made on 12 January 2005, which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8). By reason of s.474(1) of the Migration Act, the Court’s powers under s.483A are limited, so 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 have power myself to decide whether the applicant’s refugee claims should be believed, nor whether she qualifies for a protection visa.
The applicant arrived in Australia in October 2004 on a temporary business visa. Her application for a protection visa was lodged on 23 November 2004, and does not disclose any person assisting her. A brief typed statement explained why she sought protection in Australia from return to her country of nationality, the People’s Republic of China.
The applicant claimed that she had studied and practised Falun Gong since 1998. She said that following the banning of Falun Gong in 1999:
Of course, I did not escape the punishment from the government.
At first, I was called to go to the local police office to confess my conviction for learning and practising and spreading Falungong. I did not admit that Fa Lun Gong was a sort of a conviction or crime because I still believe that there is nothing wrong with it.
One month later, I was dismissed, and were forced to attend re‑educational courses set for Falungong practisers, where I, like many others, was treated badly both physically and spiritually. We were forced to confess what we wanted for in practising Falungong was to subvert the government and to conduct illegal religion activities.
I do not know what will happen to me in the near future. Thus I decided to go out of Australia. In this way, I borrowed money from my friends and managed to get passport by providing bribery to passport issuing police and applied for visa to Australia.
I know that Australia is a real democratic country and its people enjoy high standard human rights. I mentioned above, if I went back to China, I would meet much more severe punishment by the government.
No details nor corroboration of these claims were ever provided to the Department or the Tribunal.
A delegate refused the application on 12 January 2005. In the statement of reasons sent to the applicant’s address, the delegate drew attention to the absence of supporting evidence “of any kind”, and gave the opinion that “her claims are extremely scant with no reliable evidence of past persecution in China”.
The applicant applied for review on 11 February 2005, but the only support she provided was an edited version of her original statement. Her application did not appoint an agent or authorised recipient for correspondence, but requested that all correspondence should be sent to her mailing address, which was an address in Pitt Street, Sydney. No contact phone numbers were provided.
The Tribunal sent to this address a letter dated 9 March 2005. This 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 of the Tribunal on 22 April 2005. It informed the applicant that if she did not attend the hearing, the Tribunal could make a decision on her case without further notice. It invited her to send any new documents or written arguments she wanted the Tribunal to consider.
According to the evidence before me, no response to that letter was received by the Tribunal, and there was no attendance at the appointed hearing. The Tribunal said in its statement of reasons that it received no explanation for her absence, and that it proceeded pursuant to s.426A of the Migration Act to make a decision on the review without taking any further action to allow or enable the applicant to appear.
On the material before me, the Tribunal was clearly authorised to follow that procedure, and I can see no arguable ground that its exercise of discretion miscarried.
In its statement of reasons, the Tribunal referred to the absence of details and corroboration in the material before it and concluded:
Without further details, corroborative evidence and without having had the opportunity to explore the claims with the applicant at a hearing, the Tribunal is not satisfied that the applicant is a Falun Gong practitioner, nor is the Tribunal satisfied that the applicant has been involved in any Falun Gong activities. It follows that the Tribunal is not satisfied that she was called to the local police office and was released a month later, nor is the Tribunal satisfied that she was ill‑treated and was forced to attend re‑educational courses or confess. For the same reasons, the Tribunal is not satisfied that the applicant borrowed money from friends and through bribery she obtained her passport, nor is the Tribunal satisfied that if she were to return to China, she would be severely punished. In essence, the Tribunal is not satisfied that the applicant had suffered any of the claimed harm.
On the basis of the available information, the Tribunal is not satisfied that the applicant had suffered any Convention‑related harm, nor is the Tribunal satisfied that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future.
I can see no error, whether jurisdictional or otherwise, affecting the reasoning or decision of the Tribunal.
The applicant’s original application and her amended application filed in July 2005 did not identify any grounds of jurisdictional error. They contained only an edited version of her original refugee statement.
The applicant has attended today, but her submissions to me were confused. She was unable to identify any jurisdictional defect in the procedures or reasoning of the Tribunal.
In my opinion the Tribunal’s decision was not affected by jurisdictional error. It was therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 24 November 2006