SZHCE v Minister for Immigration - [2007] FMCA 381

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHCE v MINISTER FOR IMMIGRATION

[2007] FMCA 381

MIGRATION – Application for review – invitation to attend hearing and give evidence – failure to attend – application must prove their case – no denial of natural justice.

Migration Act 1958 (Cth), Part VII Div 4, ss.426A ,424C, 425, 474

Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 144 ALR 567

Applicant:

SZHCE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File number:

SYG 2523 of 2005

Judgment of:

Turner FM

Hearing date:

16 February 2007

Date of last submission:

16 February 2007

Delivered at:

Sydney

Delivered on:

16 February 2007

REPRESENTATION

The applicant appeared in person

Solicitor for the Respondent:

Ms Karen Jane O’Flynn

ORDERS

The application and amended application are dismissed.
The applicant is to pay the costs of the respondent fixed in the amount of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2523 of 2005

SZHCE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application filed on 8 September 2005 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 9 November 2005.
The applicant was born on 12 June 1953 and claims to be from China and of Chinese ethnicity.
The applicant arrived in Australia on 31 May 2004 on a temporary business visa. That visa was issued in Beijing on 14 May 2004.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 25 June 2004. The applicant claims in this application that he began to practise Falun Gong to improve his health and after experiencing good results he “started to organise group exercise of Falun Gong” (Court Book 17). The applicant claimed that he gave instructions and tutored others in Falun Gong practices, and was involved in the distribution of Falun Gong video tapes, books and radio cassettes. As a “backbone member” the applicant claims that in August 2001 he petitioned the Chinese government for the release of Falun Gong followers and in October 2003 joined with other backbone members to “appeal to Beijing…so we can put forward our different views” (CB 17). The applicant claimed that he was detained by government officers on two separate occasions and forced into a study and re-education labour camp where he was tortured because of his involvement in Falun Gong practices. The applicant stated that he feared to return to China “because the torture will happen to me again” (CB 18). The two page document is signed by the applicant.
The applicant now states to this Court that all that material is incorrect and that he is not a Falun Gong practitioner and never has been.
The function of this Court is to decide whether the Tribunal was correct in reaching its decision on the basis of the material before it. This Court is going to make its decision on the basis of the material that was submitted by the applicant to the Tribunal. The application and supporting typed documents submitted by the applicant to the Tribunal state clearly that he was a Falun Gong practitioner.
This application was refused by a delegate of the respondent on 1 April 2005.
On 20 April 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. A letter was sent to the applicant on 4 July 2005 advising him that the Tribunal could not make a decision in his favour based on the information provided alone. The applicant was invited to give oral evidence before the Tribunal at a hearing scheduled for 28 July 2005. The letter advised the applicant that the Tribunal could make a decision on his case without further notice if he failed to attend the hearing on that day.
No response was received from the applicant and the letter was not returned to the Tribunal (CB 75). The applicant has stated to the Court this morning that he did in fact see the Tribunal’s letter and was aware of the scheduled hearing, but that he could not find his way to the Tribunal.
The applicant failed to attend the hearing and the Tribunal, pursuant to s.426A of the Migration Act, made a decision in his absence. Section 426A provides that:
If the applicant is invited to appear before the Tribunal and does not appear before the Tribunal on the day and place that it is scheduled to appear the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The Court finds that the applicant was notified of the time and place of hearing and that the Tribunal complied with the law in making a decision without the applicant appearing before it.
The Tribunal found that there was not sufficient evidence to support the applicant’s refugee claim, stating that “the applicant was informed by the Tribunal that on the evidence to date it was unable to accept his claims” (CB 78). The Court refers to page 64 of the Court Book which is the letter to the applicant dated 4 July 2005 where the applicant was told that
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 Tribunal continued on page 78 of the Court Book as follows:
There are a number of issues requiring more detailed evidence the Tribunal would like to discuss with the Applicant, before it could be satisfied that he holds a genuine fear of persecution, or that any fear that he claims to have, in this regard, is well founded.
Without the opportunity to question the Applicant about his activities in China, I cannot make findings of facts as to the nature and degree of the Applicant’s past or ongoing involvement (if any) with Falun Gong. I also cannot make findings as to whether the Applicant would practise Falun Gong if he returned to China or, if he did, whether this would attract the adverse attention of the Chinese authorities.
As I find the Applicant has not provided sufficient evidence to support his assertion that he is a Falun Gong practitioner, I am not satisfied that he 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 should he return to the PRC.
Accordingly, the Tribunal affirmed the decision of the delegate on 29 July 2005.
The applicant then filed the application in this Court seeking judicial review of the Tribunal’s decision pursuant to the Migration Act1958. In his application the applicant set out four grounds as follows:
i)The Department of Immigration did my decision before I give them eveidence (sic) and passport.
ii)No eveidence (sic) support RRT’s decision.
iii)Due to I didn’t make clear the meaning of RRT, so I lost the chance of hearing.
iv)I already became a Christian when I came to Australia. I have some eveidence (sic) will provide you soon.
In relation to that ground the Court has already stated that the Court is bound to consider whether the Tribunal made a mistake on the basis of the evidence put before it. The Court finds that all the evidence and material put before the Tribunal related to claims that the applicant was a Falun Gong practitioner. The Court cannot say now that the Tribunal was wrong because the applicant supplied the incorrect information to the Tribunal.
In his amended application filed on 9 November 2005 the applicant set out the following grounds:
i)DIMIA did decision of my application before I give them evidence and passport.
ii)Due to I didn’t make clear the meaning of RRT’s letter, so I lost the chance of hearing.
iii)No evidence support the RRT’s decision. They just copy DIMIA’s decision.
iv)I already become a Christian when I came to here. I provid (sic) some photo to you.
v)I think RRT had jurisdiction errors.
vi)My passport is overdue. I can’t extend it.

Findings as to the grounds in the application

Ground one complains that the Department made its decision before the applicant gave evidence. The Court finds that the applicant was invited to give evidence but failed to attend. The Tribunal advised him that if he failed to attend it could make a decision on the case without further notice. Section 424C and 426A (1) have been complied with.
The Court finds that s.425 (invitation to appear) and Reg 4.35D (7 days notice) were complied with. It is for the applicant to prove his case to the Tribunal: Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 144 ALR 567 per Kirby J.
The Tribunal found:
After considering the matter that I cannot accept the applicant would have a well founded fear of persecution for a convention reason should he return to the PRC. (CB 78)
The Court finds no error of law or denial of natural justice and dismisses this ground.
Ground two complains that there is no evidence to support the Tribunal’s decision. The Court finds that the applicant did not present evidence to prove his case, indeed the Tribunal found that:
The applicant has not provided sufficient evidence to support his assertion. (CB 78)
The finding by the Tribunal was properly open to it on the basis of the material presented to it by the applicant and on the basis of the applicant failing to attend the Tribunal and give evidence. The Court rejects this ground.
Ground three complains that the applicant lost his chance at a hearing. The Court finds that the applicant was invited and had a chance to attend a hearing but failed to attend. The Court finds no error of law and dismisses this ground.
Ground four claims that the applicant became a Christian when he came to Australia and will provide evidence in support. The function of this Court is to decide whether the decision of the Tribunal was properly open to it on the evidence and material before it. All the material before the Tribunal which was signed by the applicant stated that he was a Falun Gong practitioner. The Court finds no error of law in relation to this ground.

Findings as to the grounds in the amended application

Ground one complains that the Department made its decision before the applicant gave evidence. As found above, the applicant was invited to give evidence and he was alerted to the consequences of a failure to attend. He did not attend and give evidence. The Court finds no error of law or denial of natural justice and dismisses that ground.
Ground two appears to allege that the applicant did not understand the meaning of the letter inviting him to attend and give evidence. Today the applicant has stated to the Court that he saw the letter inviting him to attend and give evidence.
The Court finds that the applicant had a Migration Agent in the matter whose authority is set out at page 28 of the Court Book. The applicant could have sought advice on the contents of the letter if he did not understand it. The letter of invitation was sent to the applicant at the postal address he provided (CB 12). Nevertheless, the applicant stated today that he had seen the letter of notification before the Tribunal hearing occurred.
The Court finds no breach of the requirements of natural justice set out in Div 4 of Pt VII of the Migration Act 1958. The failure of the Tribunal to send the letter of invitation to the Migration Agent is not a breach of the relevant provision. The Court finds no error of law or denial of natural justice and dismisses this ground.
Ground three complains that the Tribunal had no evidence to support its decision and that it copied the delegate’s decision. The Court holds that if nothing is presented to the Tribunal to show that the decision of the delegate was wrong, the Tribunal was correct in affirming the decision. As stated above, the decision of the Tribunal was based on the applicant’s failure to produce evidence in support of his case. That is stated clearly on page 78 of the Court Book. The Court finds no error of law or denial of natural justice and rejects this ground.
Ground four alleges that the applicant became a Christian when he came to Australia, and he provides two photographs to the Court. The applicant is unclear as to whether or not those photographs were put before the Tribunal but no reference was made to the photographs in the decision of the Tribunal. As the photographs were put forward in support of the applicant’s claim that he is of Christian religion and not Falun Gong, and as there is no mention of that claim in the decision by the Tribunal, the Court infers that that information was not submitted to the Tribunal. It is therefore new material and cannot be relied upon by the applicant to say that the Tribunal’s decision was incorrect. The Court finds that if the claim by the applicant that he is of Christian religion was put to the Tribunal it would expect that some reference be made to that in the decision of the Tribunal. The Court rejects this ground.
Ground five complains that the RRT made jurisdictional errors. Nothing has been put to establish this claim and that ground is rejected.
Ground six complains that the applicant’s passport is overdue and he cannot extend it. As explained to the applicant previously, this Court cannot consider the wishes of the applicant as a ground of review; the function of the Court is to determine whether proceedings before the Tribunal were fair and whether any error of law occurred. Ground six raises no ground for review of the Tribunal’s decision and it is rejected.

Conclusion

The Court finds that the Tribunal’s decision is a privative clause decision and has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere. Accordingly, the application and the amended application are dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Turner FM

Deputy Associate: Mary Giang

Date: 21 March 2007