SZHDK v Minister for Immigration
[2006] FMCA 828
•7 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHDK v MINISTER FOR IMMIGRATION | [2006] FMCA 828 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – where applicant did not attend Tribunal hearing – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.425, 426, 474 |
| NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1195 VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 |
| Applicant: | SZHDK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2627 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $1,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2627 of 2005
| SZHDK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 August 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant claimed to be a citizen of the Peoples Republic of China and to fear persecution as a Falun Gong practitioner. His protection visa application was refused by a delegate of the first respondent.
The applicant sought review by the Tribunal.
In his application for review the applicant provided a residential address and a separate mailing address. He did not nominate an authorised adviser or recipient. He provided the Tribunal with a further statement reiterating his claims to fear persecution as a practitioner of Falun Gong.
On 15 June 2005 the Tribunal wrote to the applicant by letter sent by registered post to the address he had provided as a mailing address, inviting him to attend a hearing on a date, time and place specified. That letter advised the applicant that the Tribunal had considered the material before it but was unable to make a decision in his favour on that material alone and that if he did not attend the Tribunal hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice.
The Tribunal's reasons for decision record that no response was received to this letter and that the Tribunal's letter to the applicant was not returned unclaimed.
The applicant did not attend the Tribunal hearing. In those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth) (the Act), the Tribunal decided to make its decision without taking further action to enable the applicant to appear before it. The Tribunal also observed that the applicant had not provided it with a telephone contact number.
The Tribunal set out the applicant's claims to fear persecution based on his activities as a Falun Gong practitioner, including a threat of dismissal from his employment, the fact that after the government crackdown he claimed he had practised secretly in his home, that he had been warned by the police that if he practised Falun Gong again he would be sentenced to gaol for up to 10 years, and that one of his colleagues had been arrested and imprisoned. He had also claimed that he was forced to declare his “separation” from Falun Gong and that he had bribed a government officer to obtain his passport and to apply for a visa to travel to Australia.
In its findings and reasons the Tribunal accepted that the applicant was a national of China. However, it observed that he had provided scant detail of his claims. It set out aspects of the applicant’s claims in relation to which there was a lack of detail, including the absence of detail as to how he came to attention as a Falun Gong practitioner in 1998, why at that time his activities were the source of such difficulties or how he had managed to retain his employment. The Tribunal also observed that while the applicant claimed he practised Falun Gong in secret, he did not say how often he did so and provided no information about any problems he or others in his group of friends had experienced. Apart from his claim that the police had given him “one last notice” in August 2004, he provided no information about any other difficulties encountered between 1998 and August 2004. Nor did he explain how it was that he had used his passport to travel to other overseas countries, in particular Singapore and Malaysia in 2004.
The Tribunal found:
In view of the lack of detail contained in the protection visa application and the absence of a hearing to test the truthfulness of the applicant's claims and establish relevant facts, I am not satisfied that the applicant is or was a Falun Gong practitioner or that he suffered mistreatment. Indeed, on the information provided by the applicant, I am not satisfied that any of the claims with respect to Falun Gong are true. As I do not accept the applicant's claims on the facts, I cannot be satisfied that he has a well-founded fear of persecution for a Convention reason.
The applicant sought review of the Tribunal's decision by application filed in this court on 19 September 2005. The application claimed generally that procedures required by the Migration Regulations to be observed were not observed and stated the grounds of the application to be that the applicant met the refugee criteria and feared persecution as a member of Falun Gong.
In the hearing today, the applicant merely told the court that he was a Falun Gong practitioner and had suffered persecution in China. Insofar as the applicant seeks merits review, merits review is not available in this court. I invited the applicant to clarify what procedures it was that he said had not been observed. He was unable to do so. It is apparent that the Tribunal invited the applicant to attend a Tribunal hearing by invitation sent to the correct notified mail address. There is nothing in the material before the Court to suggest that any contravention of any of the procedures (in particular in sections 425 to 425A) of the Migration Act 1958. Hence the Tribunal was entitled to make a decision under s.426A of the Act (VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 at [14] and NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 at [16]). Further, as the applicant did not attend the Tribunal hearing, the Tribunal was not able to have the requisite state of satisfaction as to whether or not the applicant had a well-founded fear of persecution in the sense considered by the Full Court of the Federal Court in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 at 15 – 16 (also see NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208). The information before the Tribunal about the circumstances of the applicant was not the reason or part of the reason for the decision. As in SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 at [12] per Allsop J “The reason for the decision was simply, and no more than, the absence of material which [the Tribunal] required to reach a state of satisfaction”. The Tribunal’s appraisal of the material as inadequate was not information in section 424A(1) of the Act (SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1195 at [29] and SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [15]).
No failure to comply with procedures has been established. Nor is any other jurisdictional error apparent on the material before the court either in the decision of the Tribunal or in its procedures.
In those circumstances, the decision of the Tribunal is a privative clause decision under s.474 of the Act and the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. There is nothing in the circumstances before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The amount of $1,900 which is sought is entirely appropriate and reasonable and is considerably less than the costs sought in many cases of this nature.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Barnes FM
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