SZHET v Minister for Immigration - [2006] FMCA 565

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHET v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 565

MIGRATION – RRT decision – Chinese claiming persecution for Falun Gong practice – did not attend Tribunal hearing – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425A, 426A, 426A(1), 441A(4), 441C(4), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant:

SZHET

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2702 of 2005

Judgment of:

Smith FM

Hearing date:

11 April 2006

Delivered at:

Sydney

Delivered on:

11 April 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms E Palmer

Solicitors for the Respondents:

Clayton Utz

ORDERS

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2702 of 2005

SZHET

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 23 September 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 August 2005 and handed down on 23 August 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and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).
The Court’s powers under s.483A are the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Pt.8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back 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.
The applicant arrived in Australia on a temporary business visa in February 2005. On 10 March 2005 he lodged an application for a protection visa. The forms do not disclose who assisted the applicant. He gave a residential address at Campsie and a postal address in Pitt Street, Sydney.
A short typed statement attached to the application contained the applicant’s claims for protection in Australia against return to the country of his nationality, The People’s Republic of China. In very general terms, he said: “since I knew FaLun Gong eight years ago, I have never stopped practicing it”. He said:
I was running a small business in [a province], China. I was fined a large amount of money by Chinese government just because I am FaLun Gong practitioner.
He said he continued to practise Falun Gong secretly, and:
For several weeks, I and my FaLun Gong colleagues practiced FaLun Gong at my home. One night many policemen surrounded my home and arrested us. Fortunately, I escaped under my friends’ help.
No details of these events were contained in his statement, nor did he provide any supporting evidence.
The delegate refused the application on 1 April 2005. In the statement of reasons which was sent to the applicant, the delegate referred to the general nature and lack of detail in the applicant’s statement as a reason for not accepting that the applicant would have come to the attention of Chinese authorities in the manner which he claimed.
The applicant filed an application for review in the Tribunal on 2 May 2005, again not disclosing the help of any agent. He gave his previous Campsie home address without any telephone contact numbers, and gave a new Pitt Street address as his mailing address to which he requested correspondence about his application to be sent.
The Tribunal sent to the applicant at his mailing address a letter dated 7 July 2005. The letter told the applicant:
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 letter invited the applicant to come to a hearing on 2 August 2005, and told him:
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.
The letter asked the applicant to: “send us any new documents or written arguments you want the Tribunal to consider”, and also to return a “Response to Hearing Invitation” form.
However, the applicant did not contact the Tribunal in any manner, and did not attend the hearing. The Tribunal, in its statement of reasons said:
No response was received and the letter was not returned unclaimed. On 27 July 2005 the Tribunal checked that the invitation had been sent to the recipient’s most recent address for service and checked the Department’s movements database to confirm that the Applicant was still in Australia. No telephone or fax contact numbers were provided by the Applicant in his review application.
The Applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.
The applicant today confirmed that he did get the hearing invitation letter, but claimed: “I couldn’t understand it so I did not attend”. He did not elaborate how this came about. He did not suggest that the Tribunal was aware of any circumstances which rendered improper or unfair its decision to proceed under s.426A(1).
On the evidence, I consider that the Tribunal had that power, since the procedures for the sending of the invitation were complied with. The address to which the letter was sent was the last address given to the Tribunal as his address for service in connection with the review, and I consider that the letter complied with the requirements of s.425A and s.441A(4) and reg.4.35D of the Migration Regulations 1994 (Cth). Receipt of the letter was therefore deemed to have occurred pursuant to s.441C(4), and it is irrelevant to the existence of the Tribunal’s power under s.426A(1) whether in fact the invitation came to the applicant’s actual notice (see VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [16], applied in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12]).
It is therefore unnecessary for me to make any finding on whether, in fact, the applicant actually became aware of the appointed hearing. I note, however, that the Tribunal’s decision was sent to the same address, and apparently came to the applicant’s actual attention without any delay, since he brought the present application within a short time. He has also given the same address as his address for service in this Court.
The Tribunal’s reasons for affirming the delegate’s decision referred to various aspects of the applicant’s claims which were vague. It said, in conclusion:
The Applicant’s vague and unsubstantiated claims do not provide a sufficient basis for the Tribunal to be satisfied that he has ever been a Falun Gong practitioner or leader or has ever had any significant involvement with the Falun Gong faith or that he has ever suffered any harm for this reason in China.
In my opinion it was well open to the Tribunal to form that assessment of the applicant’s claims. I am unable to identify any jurisdictional error arising from the Tribunal’s procedures or reasons.
The applicant’s application filed in this Court contained only a repetition of the assertion that he meets refugee criteria. However, that is not an issue which I am able to decide.
His amended application alleges a failure to give natural justice and bias, with the following three particulars:
(a)The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the applicant.
(b)The tribunal based its findings on the information, or lack of information, contained in the Applicant’s for a visa.
(c)The tribunal not satisfied that I am a Falun Gong practitioner, but actually I am a practitioner.
Those particulars do not support any claim of failure of procedural fairness or bias, and do not identify any other ground upon which I can set aside the Tribunal’s decision.
For the above reasons I consider that the Tribunal’s decision was not affected by jurisdictional error. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

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

Associate: Lilian Khaw

Date: 26 April 2006