SZHTA v Minister for Immigration
[2006] FMCA 1388
•7 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHTA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1388 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of RRT affirming decision of a delegate of the Minister not to grant the applicant a protection – applicant is a citizen of the People's Republic of China – applicant claims to be a Falun Gong practitioner – where applicant failed to attend RRT hearing – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A, 424C, 425, 426A, 474 Federal Magistrates Court Rules 2001 |
| Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476 Yo Han Chung v University of Sydney [2002] FCA 186 |
| Applicant: | SZHTA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3556 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 September 2006 |
| Date of Last Submission: | 7 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3556 of 2005
| SZHTA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for a review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 11th October 2005.
It handed the decision down on 1st November 2005. The Tribunal affirmed the decision of a Delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of the People's Republic of China. He arrived in Australia on 29th May 2005. On 24 June in that year he applied for a protection visa. On 26th July 2005 a Delegate of the Minister refused that application. On 30th August 2005 the applicant applied to the Refugee Review Tribunal for a review of the Delegate's decision.
In his application he gave his residential address, which is the same residential address that appears on his application to the Court. He did not provide any telephone numbers. He gave as his mailing address an address in Pitt Street, Sydney. It is an address that appears quite frequently in applications to this Court. He did not nominate any person to be his authorised recipient.
The applicant submitted a type-written statement with his application for review. He gave as his reasons the facts that he is a Falun Gong practitioner in the People's Republic of China, but practising Falun Gong, or Falun Dafa is illegal in that country. He said that he went to the Great Wall and practised the Falun Gong exercises. He said that he was arrested, and was sentenced to one year of forced labour.
He was incarcerated at the Tianjin City Forced Labour Camp. He said that he suffered all kinds of inhuman torture whilst he was there.
He was forced to renounce his faith against his will. He said that he suffered as a result of that.
When he was released from the labour camp he returned to work, but eventually returned to the practice of Falun Dafa. He said that as a result two cruel female police officers from the labour camp went to his workplace and threatened to continually reform him, saying that they would arrest him if he did not again renounce Falun Dafa. He realised, he said, that he would be sent to jail again. He said that his father bribed a Government official to issue him with a passport and he applied for a business visa to travel to Australia.
The Tribunal wrote to the applicant on 31st August 2005 acknowledging receipt of his application. The Tribunal wrote again on 15th September. This time the Tribunal told the applicant that it had information that would, subject to any comments that he might make, be the reason, or part of the reason for deciding that he was not entitled to a protection visa.
In the letter, the Tribunal asked the applicant about entries in his passport. In particular, whilst the applicant had said in his protection visa application that he had not travelled outside China before coming to Australia, the passport showed that the applicant had travelled to Germany in 2004.
The applicant was also asked a number of other questions about the dates of obtaining his passport visa, and the fact that he was able to obtain a passport. The Tribunal pointed out that his written statement of claims had not been signed or dated, which could lead the Tribunal to conclude that it had been fabricated by another person, and does not represent a true account of his experiences.
The Tribunal told the applicant that he had provided no evidence with his application to support any of his claims. The Tribunal could conclude from that that he was not a genuine practitioner of Falun Dafa.
The Tribunal invited the applicant to comment on the information, and said that those comments were to be in writing, in English, and to be received by the Tribunal by 10th October 2005. The Tribunal also asked the applicant, under s.424 of the Act, to submit his original passport for examination by the Tribunal.
The letter told the applicant that if he did not give the comments required by 10th October, or did not provide the information required by that date, that the Tribunal may make a decision on the review of his case without further notice. No information was provided.
The Tribunal wrote to the applicant on 11th October, telling him that it had considered all the material and had made a decision which would be handed down on 1st November 2005.
In the decision, the Tribunal set out the applicant's claims and evidence on pp 61 through to 62 of the Court Book. The Tribunal referred to the letter sent to the applicant on 15th September pursuant to s.424A of the Migration Act inviting his comments on potentially adverse material. The Tribunal noted that the letter was sent by registered mail to the address nominated by the applicant for the service of correspondence.
The Tribunal noted that no reply had been received, and made the decision to proceed to a hearing without taking further action to enable the applicant to appear.
The Tribunal's findings and reasons are set out on pp 63 through to 65 of the Court Book. The Tribunal noted that the applicant claimed to have been a practitioner of Falun Gong, but had provided no information which would indicate that he had any association with Falun Gong, apart from a reference to truthfulness, compassion, forbearance.
The Tribunal noted that whilst the applicant said that he had never previously travelled outside China, an entry in his passport indicated that he had made at least one journey outside China in 2004 when he travelled to Germany.
The Tribunal noted that the applicant's passport was issued in September 2002 before he claimed that he had been threatened by two female police officers in early 2003. As a result, the Tribunal found that his claim that the threats by the police officers prompted him to obtain a passport was false.
The Tribunal noted that the applicant had held a passport since September 2002, and that he would have been able to apply for a visa to travel overseas if he genuinely needed to seek protection.
The applicant's visa to travel to Australia was issued in April 2005.
The Tribunal found that the alleged acts of harm that the applicant says took place in late 2001 and early 2002 and threats he said he received in early 2003 did not take place. The Tribunal noted that if the applicant had been in fear of persecution, he could have sought protection when he was in Germany in April 2004. The applicant had made no claims about any acts of persecution directed at him since he returned to China from Germany at that time.
The Tribunal found that the applicant did not have a genuine fear of persecution and was not a refugee. The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant filed his application on 5th December 2005. He seeks orders for a decision that he meets the refugee criteria, and that the Tribunal's decision be set aside. I informed the applicant that the Court did not have the jurisdiction to find that the applicant met the refugee criteria.
The applicant sets out three grounds, one of which is an application for an order that a particular Tribunal Member not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter.
The other two grounds - if such they be - are these:
I am a Falun Gong practitioner when I was in China; I was prosecuted by the Chinese Government because I am a Falun Gong member.
No other grounds given.
The applicant has attended Court, told the Court that he had not received the letter sent to his mailing address by registered post, nor had he received the outline of submissions sent to that same address, by courier, by the solicitors for the respondent Minister.
The applicant has provided no grounds showing any jurisdictional error, the only matters raised relating to his being a Falun Gong practitioner, merits review, and did not of themselves identify jurisdictional error.
I am aware of the fact that the applicant is not legally represented in these proceedings. I note from the Court file that he was referred to a legal practitioner on the Refugee Review Tribunal panel for legal advice on 2nd May 2006. Nevertheless, the applicant is not legally represented today, so I have conducted my own independent assessment of the material before me in order to ascertain whether an arguable case can be made showing any jurisdictional error.
I am mindful of the decision of the Federal Court in Yo Han Chung v University of Sydney [2002] FCA 186. I am not able to discern that there is an arguable case for any jurisdictional error that appears from the decision and not mentioned by the applicant. The application does not refer to any jurisdictional error.
I am satisfied that the Tribunal complied with s.424A of the Migration Act when it brought to the applicant's attention the information referred to and sought his comments. I am satisfied that the Tribunal complied with s.424 when it asked the applicant to provide his original passport at the same time. I am satisfied that the applicant did not comply with the invitation under s.424 or the invitation to comment under s.424A set out in the Tribunal's letter.
Under s.424C of the Migration Act if a person is invited under s.424 to give additional information and does not give the information before the time for giving it has passed, or if a person is invited under s.424A to comment on information and does give the comments before the time for giving them has passed, in each case the Tribunal may make a decision on the review without taking any further action to obtain the additional information, or obtain the applicant's views on the information which was the subject of comment.
In my view, the Tribunal has complied with s.424C of the Migration Act. In such a circumstance, the Tribunal is not required under
sub-s.425(2)(c) of the Migration Act to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Sub-s.425(2) provides that the Tribunal is not obliged to invite the applicant to a hearing if sub-s.424C (1) or sub-s.424C(2) applies to the applicant.
I am satisfied that both sub-s.424C (1) and sub-s.424C(2) apply to the applicant. Thus, under the provisions of sub-s.425(3) the applicant is not entitled to appear before the Tribunal, and the Tribunal has not breached the Migration Act in the way it dealt with the matter.
The fact is that the Tribunal's decision was based on a lack of credibility on the part of the applicant's information about which the Tribunal sought his comments under s.424A, and about a lack of information which meant that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
I am satisfied that no jurisdictional error has been made out.
In Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476 the High Court upheld the validity of s.474 of the Migration Act.
The solicitor for the respondent Minister refers me to the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ where their Honours held at 76 that the expression:
Decisions made under this Act must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction, nor an excess of the jurisdiction conferred by the Act. Indeed, so much is required as a matter of general principles.
In my view, the solicitor for the respondent Minister, Ms Quinn, is stating the law correctly when she says that s.474 validly operates to prevent the judicial review of all decisions under the Act except those officiated by jurisdictional error.
As there is no jurisdictional error, the decision of the Refugee Review Tribunal is a privative clause decision as defined by sub-s.474(2) of the Act. Under sub-s.474(1) a privative clause decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed, or called into question in any Court, and is not subject to prohibition, mandamus, injunction, declaration, or certiorari in any Court on any account.
The decision is a privative clause decision. There is no jurisdictional error. The application will be dismissed. I will hear submissions on costs.
There is an application for costs on behalf of the first respondent Minister. The amount sought is $2,500.00. The applicant has not offered any argument against a costs order other than he needs to prepare further material.
In my view, as the applicant has been wholly unsuccessful, it is appropriate that I should make an order for costs in favour of the first respondent Minister. The amount sought is $2,500.00. It appears to me to be a very modest amount, and certainly well within the scale envisaged by the Federal Magistrates Courts Rules, and I propose to make an order that the applicant should pay the first respondent's costs in that amount.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 15 September 2006