SZGYF v Minister for Immigration - [2006] FMCA 306

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGYF v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 306

MIGRATION – RRT – Chinese Falun Gong practitioner – 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.41C, 422B, 424A, 426A(1), 441B, 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration v VSAF of 2003 [2005] FCAFC 73
VNAA v Minister for Immigration (2004) 136 FCR 407

Applicant:

SZGYF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2142 of 2005

Judgment of:

Smith FM

Hearing date:

21 February 2006

Delivered at:

Sydney

Delivered on:

21 February 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Potts

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2142 of 2005

SZGYF

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 the 11 August 2005 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 23 June 2005 and handed down on 12 July 2005. The Tribunal affirmed a decision of a delegate which refused to grant a Protection Visa to the applicant.
Section 483A has been repealed, but the repeal does not affect the continuance of this proceeding (see Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8)
The Court's powers under s.483A are the same as those of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). Both jurisdictions are subject to limitations under Part 8 of the Migration Act which 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 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 December 2004, and returned briefly to China before re-entering Australia on 3 January 2005. On 17 January 2005 she applied for a Protection Visa. The form which was lodged with the Department does not reveal the name of the person or persons who assisted her. It gave a residential address at Guildford and a postal address in Pitt Street, Sydney.
The applicant’s claims to receive protection in Australia so that she did not have to return to her country of nationality, the People's Republic of China, were contained in a brief typed insertion. She said:
Five years ago, with an introduction from my husband, I began to read Falun Dafa material and practised it. Until now, I have never stopped practising it. During that period, I kept a tight relationship with many other Falun Gong practitioners. We always practised Falun Gong together and we intend to seek a high level cultivation from the rationales of Falun Gong, "genuiness, goodness and tolerances."
She referred to the Chinese government arresting Falun Gong practitioners and putting them in detention and prison. She said this meant that “we could not practise Falun Gong in public place”. She said she then practised in a house or garden of a friend or at home. She said:
I have received warnings from the local government and police many times. I was forced to attend re-educational courses and treated badly, both physically and spiritually. I decided to come to Australia by joining the tourist's group.
No more details of her practise of Falun Gong or her persecution were given, and no supporting evidence was provided to the Department.
A delegate drew attention to these defects when refusing the application on 2 March 2005. The delegate's letter sent to the Guildford residential address was returned, marked "left address". However, the copy sent to the Pitt Street address must have been received, since an application for review was lodged by the applicant on 5 April 2005.
The application to the Tribunal did not give the name of an agent. It repeated the previously given Guildford residential address, and the Pitt Street mailing address. It attached a shortened version of her earlier statement, but no further supporting evidence was provided.
I am satisfied that on 20 May 2005 a letter was sent by registered post to the applicant at her stated Pitt Street mailing address. It 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.
The letter invited the applicant to attend a hearing on the 16 June 2005, and told her:
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 Tribunal in its statement of reasons referred to the sending of this letter, and continued:
No response was received and the letter was not returned to the Tribunal. The Applicant was not represented by an adviser and she did not provided any contact telephone number. There has been no further contact or information from the Applicant. The Tribunal conducted a no-reply check (see Folio 12 of the Tribunal file).
The Applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appeal. Under these circumstances and pursuant to section 426A of the Act, I have decided to make a decision on the review without taking any further action to enable the Applicant to appear before me.
I am satisfied that the invitation to attend a hearing was sent in compliance with the provisions of s.425A and the relevant posting and deemed receipt provisions of s.441A(4), 441C(4) and reg.4.35D. The Tribunal therefore had power to proceed under s.426A(1) without taking any further action to appoint a rescheduled hearing. In circumstances where, on the evidence before me, the Tribunal had no knowledge of any explanation for the absence of the applicant, I consider no error attended its exercise of the discretion under s.426A(1).
In its reasons for decision, the Tribunal addressed the claims made by the applicant in her visa application, pointing to various obvious deficiencies in her visa application. The Tribunal concluded:
As I find the applicant has not provided sufficient evidence to support her assertion that she is a Falun Gong practitioner, I am not satisfied that she is a genuine and sincere practitioner of Falun Gong as claimed.
Accordingly, I cannot accept the applicant would have a well-founded fear of persecution for a Convention reason should she return to the PRC.
In my opinion no error of fact or law affected the Tribunal's decision, and I can find no jurisdictional error.
The applicant has filed in this Court an original application and two documents headed "Amended application". The first two of these documents repeat the applicant's claims to be a refugee, but do not purport to raise any jurisdictional error affecting the Tribunal's decision.
Her most recent document contends that the decision “involved an error of law”, in that “there was no evidence or the other materials to justify the making of the decision”. The basis of this contention is that “the member of Refugee Review Tribunal should not make decision that I am not a Falun Gong practitioner in China just because I had not provided the adequate documents. Therefore the Tribunal have no reasonable evidence to demonstrate I do not have a well-founded fear of persecution for a Convention reason should I return to China”.
However, that contention proceeds upon an erroneous view of the law. As the Tribunal points out in its reasons, with reference to appropriate authority:
It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. …
the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.
Contrary to the premise of the applicant’s contention, the Tribunal is under no duty to grant the visa where it is unable to be satisfied as to the truth of the claims made by the applicant. In the present case, its reasons indicate that it failed to be so satisfied.
The applicant attended today's hearing and, for the first time, sought to inform the Court as to the circumstances surrounding her absence from the Tribunal's hearing. At my invitation, she gave evidence under oath about this. The applicant’s evidence emerged with inconsistencies and lack of detail, and at times I was in real doubt as to her truthfulness. However, by the end of her cross-examination a consistent story had emerged which I am prepared to accept.
This was that she had received the letter inviting her to a hearing, and had shown it to a friend for translation. However, he told her that the hearing was appointed for 18 June and not 16 June. She then attended with her friend at Department of Immigration premises, which might or might not have been the premises of the Tribunal, on the 18^th. However, nobody at that location greeted them or showed interest in them. They did not speak to anyone at those premises but returned to their home where: “we found out the mistake”, which was that she had missed the appointed hearing date.
The applicant gave clear evidence that no attempt was made at any time to contact the Tribunal to seek a rescheduled hearing. The applicant told me that she thought that she would receive a second invitation to a hearing, but that all she received was the Tribunal's decision telling her that her application had been rejected. The applicant did not point to anything which could have given her reasonable grounds for expecting a rescheduled hearing without any initiative being taken on her part.
Considering the above evidence, in my opinion the applicant has not made out any ground of procedural error on the part of the Tribunal when deciding to proceed under s.426A(1) without taking further action to appoint a rescheduled hearing (c.f. VNAA v Minister for Immigration (2004) 136 FCR 407 at [16] applied in Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [12]). Nor, were it relevant (but note s.422B), do I find that these circumstances reveal any failure of procedural fairness on the part of the Tribunal. As the applicant's evidence honestly accepted, her absence from the hearing was due to her own mistake and that of her friend. In those circumstances, I do not have power to send her case back to the Tribunal to give her a further opportunity to attend a hearing.
For the above reasons, I have concluded that the Tribunal's decision is unaffected by jurisdictional error. It is therefore a privative clause decision within s.474(1), and I must dismiss the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 9 March 2006