SZHBG v Minister for Immigration

[2006] FMCA 319

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHBG v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 319

MIGRATION – RRT decision – Chinese Falun Gong practitioner – consented to the Tribunal proceeding without a hearing – Tribunal found insufficient detail – no jurisdictional error.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425(2), 474(1), 483A, Part 8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

Applicant: SZHBG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2441 of 2005

Judgment of: Smith FM

Hearing date: 28 February 2006

Delivered at: Sydney

Delivered on: 28 February 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr I Muthalib

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $2000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2441 of 2005

SZHBG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 31 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 13 July 2005 and handed down on 2 August 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.

2. Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth) but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act and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).

3. The Court's jurisdiction under s.483A gives it the same powers as the Federal Court under s.39B of the Judiciary Act 1903 (Cth). They are 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 to the Tribunal unless I am satisfied that the Tribunal's 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 he qualifies for a protection visa. 

4. The applicant arrived in Australia in October 2004.  On 3 December 2004 he lodged an application for protection visa.  The application appointed Ms Joey Zheng as his authorised person to receive correspondence, without revealing whether Ms Zheng was a registered agent. 

5. A statement attached to the visa application gave his reasons for seeking protection in Australia against return to his country of nationality, the People's Republic of China.  He said that in 1997 he had been introduced by a work colleague, Mr Z, to the practice of Falun Gong, who gave him “video tapes, books and cassettes concerning all practicing contents for me to exercise”.  He the “became active in promoting Falun Gong to other people.  In work, I recruited many new members too”.  However, in 1999 adherents started to be arrested.  He said:

   In August 2002, I was detained because I assisted Mr Z to organise Luohu group going to Beijing to join the fourth anniversary activities that Fa Lungong was put down and tell the truth to the government.  Mr Z and I were sent back to (city) and detained for one month.  Because that was the first time the government noticed us, we were released after signing a statement of compromise. 

6. He claimed that he continued to practice and “develop new members”.  Mr Z was arrested in June 2003, and the applicant was detained in January 2004 and sent to the same detention centre.  He said:

   Because I refused to write a compromise paper while we were in detention and continuing practising Falun Gong, we were formally transferred to (a labour camp) for a five-month "study and re-education" process.  We experienced torture and persecution those I could hardly think of before.  We gradually made up my mind for leaving this country.

7. His statement did not explain how he came to be released and permitted to travel to Australia.  It did express a fear of being mistreated if he returned.  No supporting material nor further statements were given to the Department of Immigration nor subsequently to the Refugee Review Tribunal. 

8. A delegate refused the application on 10 February 2005.  In a decision record sent to the applicant and his authorised recipient, the delegate pointed to the absence of details and the vagueness of the applicant’s claim, when explaining the decision. 

9. On 11 March 2005 an application for review was lodged in the Tribunal.  It did not appoint an agent, but gave the same residential address as previously given together with a Post Office Box at Blacktown for mail.  No phone numbers were provided to the Tribunal.

10. The Tribunal sent the applicant an acknowledgement of the application in a letter dated 14 March 2005, which informed the applicant that he might be invited to attend a hearing which would be “your opportunity to give the Tribunal evidence to support your application”.  The letter invited him to send the Tribunal “any document, information or other evidence you want the Tribunal to consider”.

11. By letter dated 11 May 2005, the applicant was told:

    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.

12. The letter invited him to attend a hearing on 7 June 2005 “to give oral evidence and present arguments in support of your claims”.  He was also invited to send “any new documents or written arguments you want the Tribunal to consider”.

13. The applicant decided to avail himself of none of those opportunities.  He sent to the Tribunal a “Response to Hearing Invitation”, which indicated that he did not want to come to a hearing, and that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.  The Tribunal did follow that course, but waited until after the date of the hearing it had offered. 

14. In its statement of reasons, the Tribunal analysed the applicant's claim, and referred to other information before it from the applicant's visa application.  It pointed to the absence of various details, gaps in his statement and other aspects which appeared to call for explanation.

15. Under the heading “Findings and Reasons”, the Tribunal gave its reason for not being satisfied that the applicant faced a real chance of Convention-related persecution in the PRC.  It was:

    The Tribunal finds that there is insufficient detailed, consistent evidence on which to be satisfied that the applicant's substantive claims about being a Falun Gong follower and about being persecuted for that reason, are genuine.

16. I have considered the procedures followed by the Tribunal, and its reasons for affirming the delegate's decision, and can find no jurisdictional error affecting its decision. The Tribunal was entitled to proceed in the manner it did pursuant to the provisions of s.425(2)(b).

17. The applicant today has told me that he believed that his "agent" had posted all the documents to the Tribunal, and that she told him that there would be “no difference if I went to the hearing”. This may or may not be true.  But, assuming its truth, in my opinion it does not reveal a jurisdictional failure of procedure on the part of the Tribunal.   

18. The applicant has filed only one document in the Court, being his original application.  He has not filed an amended application nor written submissions, although allowed to do this by pre-hearing directions.  I also note that he has received advice under the free advice scheme. 

19. His application claims that the Tribunal failed to follow procedures required under s.424A by inviting the applicant to comment upon information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review. However the application does not identify what information was required to be the subject of such a notice, nor has the applicant developed this argument in written or oral submissions.

20. I have examined the Tribunal's reasons in the light of authorities, including the recent decision of the Full Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. Although in the course of identifying the applicant's claims the Tribunal refers to the contents of the original visa application and statement, in my opinion information taken from those documents did not form “the reason or part of the reason” for the Tribunal's decision to affirm the delegate's decision.  As I have indicated above, its reason was the insufficiency of the material presented by the applicant, of which the applicant had been given notice in the ways I have indicated above.  In my opinion the situation falls within the reasoning of Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29-30], and SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801 at [22].

21. For the above reasons I have not been 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) 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:  10 March 2006