SZHPX v Minister for Immigration
[2006] FMCA 1057
•27 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHPX v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1057 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application fore review of decision of the RRT affirming a decision of a delegate of the minister not to grant a protections visa to the applicant – where applicant did not attend Tribunal hearing – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 426A, 474 |
| SZFHC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 73 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 |
| Applicant: | SZHPX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3390 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 July 2006 |
| Date of Last Submission: | 24 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3390 of 2005
| SZHPX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on
18th October 2005.
Background
The applicant is a citizen of China who arrived in Australia on
8th February 2005. He applied for a protection (class XA) visa on
1st March, claiming a well-founded fear of persecution because he was a Falun Gong practitioner. A delegate of the Minister refused his application on 19th May 2005, so the applicant applied to the Refugee Review Tribunal for a review of that decision.
Application for review by Refugee Review Tribunal
The applicant lodged an application for review with the Refugee Review Tribunal on 22nd June 2005. He gave an address in Sydney as his address for service of documents. This was not his residential address. The applicant lodged with his application for review a typed statement setting out his claims that he was a Falun Gong practitioner who was detained by the police in China for four months, tortured and eventually placed in a re-education centre for 20 days. He claimed that after his release he was visited at his home by police from time to time, and was required to pay more tax. The applicant claimed that he continued to practise Falun Gong in secret. He also claimed that some friends helped him to obtain a passport and a visa. He feared that if he had not come to Australia he would have again been imprisoned.
The Tribunal wrote to the applicant on 24th August 2005, inviting him to attend a hearing at 2.00 p.m. on Friday 23rd September 2005.
The Tribunal received two documents from the applicant, both in Chinese without a translation, on 6th September. The Tribunal again wrote to the applicant on 8th September 2005, asking him to contact the Tribunal. Both of those letters were addressed to the applicant at the Sydney address that he gave as his mailing address.
The applicant did not attend the Tribunal hearing on
23rd September 2005. The Tribunal decision shows that, as the applicant did not contact the Tribunal about his failure to appear, the Tribunal proceeded to exercise its power under s.426A of the Migration Act to make its decision without taking any further action to enable the applicant to appear.
The tribunal’s findings and reasons
The Tribunal’s findings and reasons are set out on pages 72 through to 74 of the Court Book. The Tribunal noted, at page 72, that:
The applicant presented his claims poorly with only a brief statement in his protection visa application and essentially the same statement to the Tribunal. He submitted documents to the Tribunal indicating he had difficulties with the authorities in 2001 but he neglected to refer to those difficulties in either his protection visa application or the review application.
The Tribunal consulted information from external sources, which appears on pages 69 to 72 of the Court Book, supporting the applicant’s claim that the Chinese government targets Falun Gong practitioners. The Tribunal was satisfied from the information that the Chinese government did not target former Falun Gong practitioners.
The Tribunal stated that it was not able to determine the full extent of the applicant’s association with Falun Gong or if he were still involved with the group. The Tribunal found that the applicant did not provide information that would satisfy it that at the time he left China he was involved in any activity that gave him the profile of a Falun Gong activist or that he was involved in any activity that would attract the adverse interest of the Chinese authorities. The Tribunal had no information to enable it to be satisfied that the applicant intended to be involved with Falun Gong in the reasonably foreseeable future.
The Tribunal noted that the applicant was put on notice that the Tribunal was not satisfied by the evidence he had provided in support of his application. The applicant did not provide further information to the Tribunal and did not attend the hearing to enable the Tribunal to explore his claims. The Tribunal affirmed the delegate’s decision not to grant a protection visa.
The application for judicial review
The applicant filed an application under s.39B of the Judiciary Act 1903 on 21st November 2005 making the following claims:
i)That the decision of the Refugee Review Tribunal be set aside;
ii)That there be a decision that he is a refugee;
iii)That procedures required by the Migration Regulations were not observed; and
iv)There was no evidence or other materials to justify the making of the decision.
The application contained the following grounds:
i)I am a refugee.
ii)I am a common Falun Gong practitioner when I was in China. I was ever prosecuted by the Chinese Government.
The applicant did not file any written submissions. At the hearing he told the court that he did not attend the Tribunal hearing because no one told him to attend. He said that he never had a chance to see the external information that the Tribunal relied on. He submitted that the decision was not fair because he was a Falun Gong practitioner.
Conclusions
The applicant provided an address for service in Sydney and it is clear that the Tribunal wrote to the applicant at that address. The Tribunal complied with the requirements of s.441A of the Migration Act by writing to the applicant at his address for service. In my view the Tribunal complied with the requirements of ss.425 and 425A: see SZFHC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 73 at [39]. It was under no obligation to take any further steps to inform the applicant of the hearing.
It is clear that the Tribunal was entitled to rely on its power under s.426A when it proceeded to determine the application for review without making any further effort to enable the applicant to appear before it. The Tribunal had advised the applicant of the hearing and the applicant, or someone on his behalf, had forwarded the documents in Chinese to the Tribunal.
There is no jurisdictional error on the part of the Tribunal. The Tribunal considered the applicant’s statement provided with his application for review, which was essentially the same as the applicant’s original statement. The Tribunal also considered independent country information, some of which actually supported his claim. There is no breach of s.424A of the Migration Act.
The Tribunal was not satisfied on the information before it that the applicant’s claimed fears of persecution were well-founded. There is no error in that approach: see Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.
The applicant appears to be seeking merits review, which is not available to him on an application for judicial review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). The court cannot make a declaration that he is a refugee (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559).
I have read through the Tribunal’s decision in detail, mindful that the applicant is not legally represented, although he was able to obtain some legal advice under the Refugee Review Tribunal legal advice scheme. I am unable to discern any jurisdictional error not mentioned by the applicant.
In my view there is no reviewable error. The Tribunal decision is a privative clause decision as set out in s.474(2) of the Migration Act. The application will be dismissed and I will hear submissions on costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 27 July 2006
0
5
2