SZGTU v Minister for Immigration
[2006] FMCA 158
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGTU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 158 |
| MIGRATION – RRT decision – Chinese claiming persecution for Falungong practice – did not attend Tribunal hearing – no error found. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.426A, 426A(1), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
| Applicant: | SZGTU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1874 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 31 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2006 |
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 $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1874 of 2005
| SZGTU |
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 in this Court on 18 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 May 2005 and handed down on 14 June 2005. The Tribunal affirmed a decision of a delegate 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The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which 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’s claims should be believed, nor whether he qualifies for a refugee visa. I do not have power to send his case back for further hearing just because I might think that he deserves a second opportunity to attend a hearing by the Tribunal.
The present applicant arrived in Australia on a 12 day visitor’s visa in October 2004. Very shortly after his arrival, he lodged an application for a protection visa on 2 November 2004. The application does not reveal the name of the person or persons who assisted him. He gave a residential address at Glenfield and a postal address at a post office box at Haymarket, those two addresses being repeated as the addresses given to the Tribunal subsequently and, indeed, to this Court.
Attached to the visa application was a brief typed statement explaining why he sought protection from Australia against return to his country of nationality, The People’s Republic of China. He said:
I was a Falungong practitioner and one of leaders of a Falungong organisation in [town]. In 1995 I started to learn Falungong from my friends of Beijing residents because he told me that Falungong Exercise can improve my health and it is even more effective comparing to Yuja. After three months exercise my body was greatly boosted. I introduced Falungong to my relatives, my friends and my former colleagues.
In the end of 2002, I was detained by the police for almost one month in [town]. In that month I was tortured by the policemen, I was beaten to the ground and was not able to get up, I have been deprived of adequate sleep due to long hours of brainwashing activities. In the same they also performing all other kinds of physical abuse day and night. One policeman would use needles to stab me, or beat my hands with willow branches if I couldn’t hold the position the way he wanted. After I got released, the only thing for me to do was to report my situation to local police station everyday.
I did not know what would happen to me in the future, as China has gone through so many politic movements, and each time thousands or millions of people’s lives were ruined. I heard from my relative, who happens to work in government that the government would strike the Falungong again. Thus, some of my friends suggested me to go to overseas. And they also helped me get a visa in order to come to Australia.
No further details or supporting evidence was given to the Department, nor to the Tribunal. A delegate refused the application on 8 February 2005, and his decision and its reasons were posted to the applicant at both his addresses on 8 February 2005. The delegate’s reasons referred to the absence of details in the application.
The applicant applied for review by the Refugee Review Tribunal on 11 March 2005. His application did not appoint an agent and, as I have indicated, gave his previous residential and postal addresses. Attached to the application was a statement which verbatim extracted passages from his original statement.
By letter dated 14 April 2005 posted to the applicant at his address for service, the Tribunal informed 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”. It said: “We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims”. It appointed a hearing on 10 May 2005 and said:
If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.
The letter invited the applicant to send “any new documents or written arguments you want the Tribunal to consider”, and a brochure explaining the hearing procedure was sent to the applicant.
In its decision the Tribunal noted that:
No response was received. The letter which was sent to the address specified by the applicant as his mailing address was not returned unclaimed. The applicant did not provide a telephone contact number.
The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.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 its “Findings and Reasons”, the Tribunal identified the claims made in the applicant’s statement, and said that he had “provided scant and vague details in his application for a protection visa”. The Tribunal referred to the lack of details of his activities as a Falun Gong practitioner, of the reason that he came to the attention of the police, and about how he was required to report and the effect on his employment, if any. The Tribunal noted that his application suggested he had continued in employment in a managerial capacity and had been able to travel abroad before his travel to Australia. It said:
The applicant’s personal circumstances as described by him do not suggest that he was experiencing harm for reasons of his practice of Falun Gong prior to his departure from China in October 2004. The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered.
In view of the lack of detail contained in the protection visa application the Tribunal cannot be satisfied that the applicant is a Falun Gong practitioner or that he was detained and harmed by the Chinese authorities in 2002. As the Tribunal is unable to accept the applicant’s claims on the facts, it is not satisfied that he has a well‑founded fear of persecution in China for a Convention reason.
I have considered the reasons given by the Tribunal for affirming the delegate’s decision, and in my opinion they reveal no error providing a ground for me to set aside its decision. The notification procedures allowing the Tribunal to proceed under s.426A(1) were, in my opinion, observed by the Tribunal, and I am not persuaded that its exercise of its discretion to proceed under that section miscarried.
The applicant’s application filed in this Court and his amended application do not reveal an appreciation of the limits of the Court’s jurisdiction. They contain only a renewed assertion of his claims to satisfy the Convention definition of refugee. However, it is not my task to address those claims. As I explained to the applicant at the first court date, his application to the Court can only succeed if it identifies serious legal error in the procedures or reasoning of the Tribunal.
The applicant appeared today, and his submissions did seek to address his non‑attendance at the Tribunal’s hearing. The reason he gave for not attending was that he did not understand English and was delayed by other business. As I understood him, he did receive the letter from the Tribunal and was aware of the hearing date.
It is not necessary for me to inquire into whether his explanations for not attending are true and to assess whether they show an acceptable reason for his absence. He did not claim to have informed the Tribunal of any difficulties in attending, and the Tribunal was on no notice of anything which should have caused it to consider rescheduling the hearing or delaying making its decision.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. It is therefore a privative clause decision for which relief is barred under s.474(1), and I must dismiss the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 10 February 2006
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