SZHDJ v Minister for Immigration

[2006] FMCA 527

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHDJ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 527

MIGRATION – RRT decision – Chinese Falun Gong practitioner – not believed by Tribunal – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 424A(3), 425A(3), 430D, 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

SZFIH v Minister for Immigration (2005) FMCA 1847

Applicant: SZHDJ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2623 of 2005

Judgment of: Smith FM

Hearing date: 4 April 2006

Delivered at: Sydney

Delivered on: 4 April 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr Z Chami

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2623 of 2005

SZHDJ

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 19 September 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. The decision was given orally to the applicant at the end of a hearing conducted by the Tribunal on 25 August 2005. Pursuant to provisions of the Migration Act, the decision was then given to the applicant in writing and a statement of reasons for the Tribunal was sent to the applicant (see s.430D). The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.

2. Section 483A of the Migration Act was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and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 has powers under s.483A which are the same as the Federal Court’s powers under s.39B of the Judiciary Act 1903 (Cth). Both 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 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 February 2005, and on

   
   

   21 February 2005 he applied for a protection visa.  The names of the people who helped him were not shown.  The application said that he would later provide “some of the evidence about my claim. They are from my home country”.  However, the applicant never provided to the Department nor to the Tribunal any evidence corroborating his claims. 

5. His application said that he entered Australia on a “business trip” and referred to his holding employment as a manager in a shopping centre.  In a short statement attached to the application the applicant claimed: “I am a Falun Gong practitioner and was a study group leader in charge of organising the practice and some other activities” in his province in China.  He said his involvement started in 2002, and from then: “I regularly attended the activities by Falun Gong organisation secretly”. 

6. He claimed to have recruited and trained new practitioners, distributed Falun Gong literature and set up a study group himself.  He said that in June 2004 he was detained for two weeks after police arrived and arrested people undertaking studies at a practitioner’s home.  He claimed:

   In January 2005 with help of my friends I obtained a visa and I successfully came to Australia. 

   After I came to Australia I became a member of the local Falun Gong organisation and are attending the movements often and enjoying a religious freedom.

7. A delegate refused the application on 2 May 2005.  In a statement of reasons which was posted to the applicant, the delegate referred to the information provided by the applicant as being “broad, vague and contains statements that are inconsistent with other information”.  The delegate drew attention to the lack of corroboration, and said that he was not satisfied that the applicant had given an entirely credible account of his circumstances in China. 

8. The applicant lodged an application for review on 16 May 2005, again not showing any involvement of an agent.  No further material was sent to the Tribunal, notwithstanding that the application form and the acknowledging letter from the Tribunal drew attention to the need to: “immediately send us any documents, information or other evidence you want the Tribunal to consider”. 

9. By letter dated 25 July 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. 

10. The letter invited the applicant to come to a hearing on 18 August 2005 at 9 am, and asked him to return to the Tribunal a “response to hearing invitation form” to tell it whether he was coming.  The letter also asked him to send the Tribunal “any new documents or written arguments you want the Tribunal to consider”. 

11. A Tribunal file note made on 18 August 2005 recorded:

    On request of case officer, spoke to applicant in front of the counter in Mandarin with the presence of the case officer.  Applicant turned up for hearing without replying his attendance.  Explained to him that as a result, no interpreter had been booked for his hearing which would therefore be unable to proceed.  His hearing had been rescheduled to 25.8.2005 to start at 9 am and he should arrive at 8.45 am and report to the reception.  Hearing rescheduled letter handed to him in person.  He confirmed that he would attend the rescheduled hearing next Thursday and need Mandarin interpreter.

12. The documents before the Court contain a copy of the letter given to the applicant telling him of his rescheduled hearing.  The applicant did attend at that rescheduled hearing and subsequently received the tapes.  A transcript of the hearing has not been put into evidence by either party, and the Court has only a brief description of the hearing given in the Tribunal’s statement of reasons.  As I have indicated, the applicant was told the Tribunal’s decision orally at the end of the hearing, and later that day was given the written notice of decision. 

13. In the Tribunal’s statement of reasons, it identified the claims made by the applicant and set out some background information about Falun Gong and the treatment of its practitioners in China.  It then described the hearing, in which the Tribunal questioned him about his statements. 

14. The applicant told the Tribunal that he had not gathered with other practitioners to perform exercises in public in Australia because “he and his friends did not have time as they had to work”.  He disclaimed having become a “member” of a local Falun Gong “organisation” after coming to Australia.  The Tribunal said that it asked the applicant several questions about Falun Gong practice and that his responses were “vague and undetailed”.  The Tribunal thought that he showed a lack of knowledge of the Falun Gong exercises.  The Tribunal said:

    The applicant claimed at the hearing he had been practising Falun Gong regularly for three years prior to coming to Australia.  However, he did not appear capable of showing any familiarity with actual Falun Gong practice. 

15. The Tribunal also referred to its questioning about the purpose of his visit to Australia.  It said:

    The Applicant told the Tribunal he was sent to Australia on a business trip by his company. He confirmed he was briefed about the business before he came but when asked who his business contacts in Australia were, he was evasive and ultimately refused to answer the question. When pressed he said he did not communicate with his company’s contacts after arriving here, but his answers served only to confirm that the company had briefed him to contact someone in particular. The Applicant claimed at several stages that he did not know who the contacts were because his real purpose in coming to Australia was to seek protection and to practice Falun Gong in freedom. However, other parts of his evidence indicated quite clearly that the company had a legitimate intention for him to conduct business here with certain business contacts.

    The Tribunal put it to the Applicant that, on his evidence, he did not make any arrangements to come to Australia before his company assigned him to come. He then said he applied to his company to send him here. His evidence appeared inconsistent on this point.

16. Under the heading “Findings and Reasons” the Tribunal gave brief reasons for having affirmed the delegate’s decision.  It said that it accepted that the applicant is a national of the PRC, but said:

    The Tribunal does not accept that the Applicant has any significant knowledge or appreciation of Falun Gong. The Tribunal finds that the Applicant’s claims about Falun Gong affiliation and about mistreatment by the PRC authorities in relation to Falun Gong are false claims. The Tribunal accepts that the Applicant was sent to Australia on a legitimate business trip and that he then absconded, but not for the reasons he claims. The Applicant is an unreliable witness in the present matter.

    The Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in the PRC. His claimed fear of such persecution is not well-founded. He is not a refugee.

    Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention.  Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

17. The Tribunal’s description of the hearing and its reasons are terse.  However, I am unable to infer nor identify any error in its procedures or reasoning.  Essentially, the Tribunal has sought to test the applicant’s uncorroborated claims by questioning him about his familiarity with Falun Gong practice.  I think this was open to the Tribunal, and that it was also open to the Tribunal to have formed an adverse view of the applicant’s credibility and, for that reason, not to accept his claims. 

18. The applicant’s application to this Court contains only one ground:

    The Refugee Review Tribunal failed to comply with the Migration Act 1958 and there are legal errors in its decision.

19. However, these contentions have not been given any meaning by particulars, and the applicant has not filed an amended application or written submissions, as was permitted by directions which I gave at the first Court date and at a subsequent directions hearing. 

20. He attended today and in effect made three contentions.  The first was that he had not been able to communicate to the Tribunal material corroborating his claims because it had not been received from China.  However, the chronology I have recounted above had allowed the applicant six months to obtain evidence to present to the Tribunal after his arrival in Australia, and he had not presented any such material.  I can see no error of procedure by the Tribunal in its proceeding to make a decision at the end of the hearing unaided by further material presented by the applicant. 

21. The applicant’s second contention was an oblique application for adjournment of today’s hearing on the ground that he had not received free legal advice under the pilot RRT legal advice scheme administered by the Federal Court registry.  The applicant was referred to the registry at the first Court date before me on 18 October 2005.  The Court’s file indicates that the applicant was sent a letter giving him the contact details of a barrister on 21 December 2005, and the barrister was sent the applicant’s contact telephone number he gave the Court, being a mobile telephone.  A letter from the barrister to the Court dated 8 February 2006 says in relation to this applicant that he attempted to contact the applicant unsuccessfully on three occasions during January but:

    I have failed to make contact with the relevant applicant … in the circumstances, I shall not be providing the applicant with advice. 

22. The barrister forwarded to the Court a letter sent to the applicant’s address on 24 January 2006 warning him that such a letter would be sent.

23. The applicant did not dispute that the advisor had not been able to contact him, but claimed that after receiving the barrister’s letter he had telephoned the barrister.  He initially said that he had not been able to communicate with the barrister, but he also said that he had spoken to the barrister and had been told that he would not be given advice.  I have not thought it necessary to explore the inconsistencies in these statements.  The matter was listed for final hearing today when the applicant appeared in front of me on 28 February 2006.  The applicant has been on clear notice since then of today’s hearing.  In all the circumstances, I consider that the applicant has been given a reasonable opportunity to obtain legal advice about the preparation of his case.  Taking into account the straightforward reasoning of the Tribunal which I referred to above, I do not consider that it is appropriate to adjourn the hearing.  I have myself attempted to identify arguments which could have assisted the applicant, but have been unable to find any. 

24. The written submission of the Minister raised two legal issues. The first concerned the circumstances of the rescheduling of the hearing which I have referred to above, and raised the question whether the Tribunal made a jurisdictional error by failing to provide the full period of notification of a hearing required under s.425A(3) and the relevant regulations. Whether such notification is required for a rescheduled hearing is a matter upon which differing opinions have been expressed in this Court. I consider the issue in SZFIH v Minister for Immigration [2005] FMCA 1847, where I concluded at [57] that the Act did not show an intention that every decision of a Tribunal should be found invalid where a rescheduling was not performed by a notice of listing strictly complying with s.424A(3). I expressed the opinion that invalidity would not occur where the rescheduling occurred at the request, or with the consent or acquiescence, of an applicant and where no failure of procedural fairness was apparent.

25. The issue is a matter which is currently before the Full Court.  However, I have applied my above opinion in several previous cases, and I propose again to apply it in this case.  On the evidence before me I am not satisfied that the rescheduling of the hearing by the Tribunal was not with the consent of the applicant or his acquiescence, and I find that it probably was.  In those circumstances, I accept the submission of the Minister that no invalidity resulted. 

26. The Minister’s written submission also raised whether the Tribunal had failed to comply with procedures required by s.424A(1) in relation to its use of information concerning the reasons for the applicant’s visit to Australia. However, I consider that the Tribunal’s conclusion about the reasons for the applicant’s visit was based only upon information given to it by the applicant at the hearing. The Tribunal was therefore not under any obligation under that provision (see s.424A(3)(b)).

27. For the above reasons, I have not been able to find jurisdictional error affecting the Tribunal’s decision. It therefore is a privative clause decision under s.474(1) and I must dismiss the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  13 April 2006