SZHEN v Minister for Immigration - [2007] FMCA 460

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHEN v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 460

MIGRATION – Applicant must satisfy the Tribunal that all of the statutory elements for the grant of a protection visa are made out – once the Tribunal complies with the statutory requirements of notifying the applicant of the hearing and inviting him to attend, the reason for failure to attend is not relevant – Tribunal may proceed to determine the matter.

Migration Act 1958, ss.426, 474

SZIGQ v Minister for Immigration & Citizenship [2007] FCA 328
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 134

Applicant:

SZHEN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2698 of 2005

Judgment of:

Turner FM

Hearing date:

16 March 2007

Date of last submission:

16 March 2007

Delivered at:

Sydney

Delivered on:

16 March 2007

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Ms V. McWilliam

Solicitors for the Respondent:

Ms S. Burnett of Clayton Utz

ORDERS

The application, amended application, and further amended application are dismissed.
The name of the first respondent is amended to the Minister for Immigration & Citizenship.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2698 of 2005

SZHEN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 23 September 2005 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of the delegate from the Minister for Immigration & Multicultural Affairs not to grant the applicant a protection visa.
The applicant filed an amended application on 25 January 2006 and another amended application on 12 May 2006.
The applicant was born on 15 December 1969 and claims to be from and of Chinese ethnicity and Sun Gong faith. The applicant’s wife (born 20 May 1980) and daughter (born 12 June 2002) remain in China.
The applicant arrived in Australia on 18 December 2004 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 25 January 2005. In this application he claimed that he had been practicing Sun Gong since 1990 (Court Book “CB” 27). The applicant claimed that his place of practice was closed by the police in 2000 and that he was forced to leave the area for a short while (CB 28). The applicant further claimed that he tried to organise different places of practice following the closure, but was detained by Chinese authorities in March 2001. The applicant claimed that he was released after one week after his friends were able to bribe the police, but that he was warned not to appear in the region again.
This application was refused by a delegate of the first respondent on

22 March 2005.
On 15 April 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. In a letter dated 5 July 2005 the applicant was advised by the Tribunal that it was unable to make a decision in his favour based solely on the information he provided in his application (CB 72-3). The applicant was invited to give oral evidence at a hearing on 15 August 2005 and was further advised that the Tribunal could make a decision on his case without further notice if he failed to attend. The Court quotes from the letter of 5 July 2005 as follows:
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. (CB 72)
No response was received by the Tribunal and the applicant did not appear at the hearing.
It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, the reason for non-attendance is not relevant: SZIGQ v Minister for Immigration & Citizenship [2007] FCA 328 per Downes J at para.5. The applicant has stated to the Court that at the time the letter was sent he was in Melbourne. Applying the law that the reason for non-attendance is not relevant once the Tribunal has complied with the Act, the fact that he was in Melbourne is not of relevance as to whether the Tribunal erred in law.
When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation the inevitable consequence was the rejection of the application: SZIGQ (ante) at para.4 per Downes J. In the absence of the applicant, the Tribunal, pursuant to s.426 of the Migration Act, made a decision without further notice to the applicant (CB 81).
On 15 August 2005 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims the Tribunal found at Court Book 86 as follows:
……based on the insufficient detail he provided, the Tribunal is not satisfied the applicant invokes protection obligations in Australia. For instance the applicant did not provide much if any detail on how he practiced ‘Sun Gong’; what were the tenets of his faith; and why he was inter-alia arrested if the alleged faith was able to be practised ‘in [a public] park on weekend’. (CB 86.2)
It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out [MIEA v Guo & Anor (1997) 144 ALR 567 @ 596]; and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making [Yao-Jing Li v MIMA (1997) 74 FCR 275 @ 288], the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her [Prasad v MIEA (1985) 6 FCR 155 @ 169-170; Luu & Anor v Renevier (1989) 91 ALR 39 at 45].
Accordingly, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements of the grant of protection are made out. Again, based on the evidence currently before me, I am not satisfied the applicant is a sincere and genuine ‘Sun Gong’ practitioner as claimed, nor that he was even a mere practitioner. Neither am I satisfied he was imputed with such practice in the PRC in the past, nor that he has a real chance of being imputed as a ‘Sun Gong’ practitioner should he return to the PRC. Accordingly, I do not accept the applicant has a well founded fear of persecution arising from his alleged practice of ‘Sun Gong’ in the PRC.
The applicant did not claim, nor do I find on the evidence, that he feared persecution for any other reason should he return to the PRC.
Accordingly, I do not accept the applicant has a well founded fear of persecution for a Convention reason in the PRC.
The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).

The application

In his original application, the applicant set out three grounds for review as follows:
1)I have well-founded fear from Chinese government. I disagree with DIMIA and RRT’s decision that I am not a refugee.
This ground is misconceived insofar as it seeks to review the Department’s decision; otherwise it seeks a review of the finding of fact by the Tribunal and is dismissed.
The second ground of the application states:
2)DIMIA’s officer did not deal with my application with due care as they did not give me any reason and explanation why I am not a refugee.
This ground is misconceived as it challenges the decision of the Department. Assuming it is intended to refer to the Refugee Review Tribunal, the ground is not substantiated. The Tribunal set out its reasons for finding that the applicant did not satisfy the criteria for a visa. The ground is rejected.
Ground three of the application states as follows:
3)RRT just agree DIMIA’s decision they did not use the correct law. The letter that tell me hearing date was returned to Tribunal.
Court Book 74 contains a form which is a check list that is completed when no reply to a hearing invitation is received by the Department. The form indicates that checks were made but does not indicate that the letter was returned to the Department. The Tribunal set out the circumstances relating to the invitation (CB 84.5). The letter sent to the applicant was not returned (CB 74 and 84.6). It was sent to the correct address (CB 68 and 72). The Tribunal did not make any error of law in that regard. The Court applies the decision of Downes J in SZIGQ (ante) at para.5 that
the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with s.425 and s.425A of the Migration Act in inviting an applicant to attend the hearing, it may proceed under s.426A of the Act to consider and decide the matter without making further enquiries.
This principle was approved in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 134 at para.16. This ground is rejected.
In his amended application filed on 25 January 2006, the applicant set out the following grounds:
1)The RRT and the DIMIA did not give me enough time to collect evidence from my home country.
2)The RRT and the DIMIA ignored my education level and my lack of English proficiency. Thus I lost opportunities in hearing.
3)The necessary procedure was not observed during the RRT and the DIMIA’s decision making.
4)The RRT has made jurisdictional errors and I believe the DIMIA abused the power delegated under the Migration Act 1958.
No particulars of the grounds are provided.
The Court invited the applicant to make submissions to it to expand on the applicant’s submissions and applications, but nothing was provided to particularise the grounds of the application.
As to Ground 1, it is misconceived insofar as it refers to the decision of the Department. The application for a protection visa was lodged on

25 January 2005. That was refused on 22 March 2005. The application to the Tribunal for review was made on 15 April 2005 and the hearing took place on 15 August 2005. In the letter to the applicant on 5 July 2005 (CB 72) the applicant was advised that:
The tribunal will only change its hearing date for good reasons. If you think you might be unable to attend the hearing, you must contact the tribunal immediately.
There is nothing to show that the applicant requested additional time to prepare and that he was refused that time. No error of law occurred and this ground is rejected.
Ground 2: This ground is misconceived insofar as it seeks to challenge the decision of the Department. The Tribunal complied with the Act as to the notification of the hearing and the applicant did not attend. No error of law occurred and the ground is rejected.
Ground 3: This ground is misconceived insofar as it seeks to challenge the decision of the Department. The ground alleges that the necessary procedure was not observed during the decision making. No particulars of this ground have been provided and it is not made out. It is rejected.
Ground 4: This ground is misconceived insofar as it seeks to challenge the decision of the Department. It alleges jurisdictional error and abuse of power. Nothing has been put to the Court to substantiate either of those allegations. The Court finds no jurisdictional error and rejects the ground.
In his amended application filed on 12 May 2006, the applicant set out the following grounds and particulars:
1)The Tribunal had the following information which was the reason for affirming the decision and failed to give particulars of that information to the applicant. Explain why it was relevant and give the applicant an opportunity to comment upon it: “that he was able to re-enter the PRC without being detained which he claimed he would be.”
2)The Tribunal failed to review the applicant’s application.
The Court takes the following three allegations on page 2 of the application to be particulars of the second ground:
i)     The Tribunal’s decision was based on unwarranted assumptions reasoning which was irrational.
x)    The Tribunal failed to carry out its decision in a bona fide manner.
xi)   The Tribunal misrepresented my evidence.
Ground 1: The reason the Tribunal affirmed the decision of the delegate was the insufficient detail provided by the applicant. The Tribunal found that “Based on the insufficient detail he provided, the Tribunal is not satisfied that the applicant invokes protection obligations in Australia” (CB 86.2). The alleged finding that “he was able to re-enter the PRC without being detained, which he claimed he would be,” was not the reason or part of the reason for affirming the decision under review. Section 424A was not breached. Ground 1 is rejected.
Ground 2: This ground is alleges irrational reasoning and bias. No particulars were provided apart from those that the Court assumes to be particulars on page 2 of the amended application. It is clear from the decision that the Tribunal reviewed the applicant’s application. It sent him a s.424A letter after reviewing his case (CB 72) and invited him to attend a hearing. Notwithstanding his non-attendance, the Tribunal went on to consider his claims and found that it was not satisfied that he was a Sun Gong practitioner, or that he was imputed with such practice in the past, nor that he has a real chance of being imputed as a Sun Gong practitioner should he return to China (CB 86.7). The Tribunal then found that the applicant did not claim to fear persecution for any other reason. The Tribunal concluded that the applicant does not satisfy the criterion for a protection visa. The Court finds that no bias has been shown nor any irrational reasoning. The reason for the decision of the Tribunal was “insufficient detail provided by the applicant”.
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 filed on 21 September 2005, the amended application filed on 25 January 2006, and the further amended application filed on 12 May 2006 are dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Sarah James

Date: 27 March 2007