SZHWJ v Minister for Immigration & Anor

Case •

[2006] FMCA 1328

•

31 August 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHWJ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1328
MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa - applicant is a citizen of China claiming fear of persecution as a Falun Gong practitioner – where applicant did not attend the Tribunal hearing – insufficient evidence to satisfy Tribunal – breach of Migration Act 1958 (Cth) s.424A claimed – no evidence of any breach – no reviewable error.

Judiciary At 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss. 424A, 426A, 476

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27
SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287

Applicant: SZHWJ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: ftr:///?location=%22JMT%C2%A0-%C2%A0Court%C2%A07B%22?date=%2231-Aug-2006%22?position=%2215:11:48%22?Data=%225bf9bcb7%22SYG 3717 of 2005
Delivered on: 31 August 2006
Delivered at: Sydney
Hearing date: 31 August 2006
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Watson
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration and Multicultural affairs.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,800.00.

  4. I allow six (6) months to pay. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3717 of 2005

SZHWJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refuge Review Tribunal. The decision was signed on the 9th of November and handed down on 29th November 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa. 

  2. The Applicant seeks a writ of prohibition, interestingly enough, prohibiting the Second Respondent, the Refugee Review Tribunal, from proceeding further with any action in respect of the decision of the Tribunal; a writ of certiorari quashing the decision of the Refugee Review Tribunal; an order that the decision of the Tribunal was made in excess of jurisdiction and is therefore null and void; and an order that the matter be remitted to the Tribunal to be reconsidered by a differently constituted Tribunal. 

Background

  1. The applicant is a citizen of the People's Republic of China.  He arrived in Australian on 14th April 2005 and on the 20th of May lodged an application for a Protection (Class XA) visa. That application was refused on 17 August 2005.  On the 20th September the Applicant applied to the Refugee Review Tribunal for a review of that decision. The Applicant did not supply any documentation with the application for review. 

  2. The Tribunal wrote to the Applicant on 14th October 2005 in accordance with section 425 of the Migration Act, saying:

    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.

  3. The Tribunal invited the Applicant to attend a hearing at 9:30am on Wednesday the 9th November. 

  4. The Applicant replied by way of completing the response to hearing invitation on 1st November 2005.  He placed a cross in the box saying yes, he did want to come to a hearing.  He indicated that he needed an interpreter in the Mandarin language.

  5. Unfortunately, for no apparent reason, the Applicant did not appear before the Tribunal on the day and at the time and place at which he was schedule to appear.  As it turned out, the Applicant told the Court today that he was in Canberra that day.

  6. The Tribunal decided to exercise its power under s.426A of the Migration Act to make a decision on the review without taking any further action to enable the Applicant to appear before it.

  7. The Tribunal considered at page 59 and 60 of the Court Book that the Applicant sought a protection visa fearing persecution in the People's Republic of China arising from his practice of Falun Gong. He claimed to have been detained by the authorities after he participated in the Falun Gong demonstrations in Tiananmen Square.  He complained that after being detained he was sent to the Feng Tai district in Beijing and returned to Hailin City, where he was investigated by the police.  He claimed to have been detained and suffered physical and mental tortures. He claimed that just before he travelled to Australia he received information that the police had started to investigate him and he paid a large sum of money for his passport.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out on pages 60 and 61 of the Court Book. The findings and reasons are very short because the Applicant did not attend and there is very little detail upon which the Tribunal could have been satisfied. 

  2. The Tribunal set out that dilemma on page 60:

    That said, based on the insufficient detail he had 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 Falun Gong, when he was detained in Tiananmen Square, why he was detained, how long he was detained, what he actually did, what mental and physical tortures he suffered and why the police recently commenced to investigate him

  3. The Tribunal, based on the Applicant's claims, was not satisfied that the statutory elements of the granted protection were made out. The Tribunal did not accept that the Applicant had a well-founded fear of persecution arising from his alleged practice of Falun Gong in the People's Republic of China. The Tribunal affirmed the decision not to grant a protection visa.

Application for Judicial Review

  1. The Applicant filed an Amended Application on 7th March 2006 in which he claimed that the Tribunal failed to carry out its statutory duty. The applicant alleges a breach of s.424A of the Migration Act and refers to the decisions of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. The Amended Application also refers to the decision in Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27. The Applicant was unable to tell the Court how those cases were relevant to his claim and was unable to explain what the breach of s.424A of the Migration Act was.

  2. The Amended Application is a photocopied document based on an old form application that seems to have some currency in some parts of the community. It is a document that is regularly seen in the Federal Magistrates Court.  It certainly does not appear to have been corrected, because it contains some familiar errors which include the apparent belief that the High Court handed down a decision in SAAP on


    18th May 2001 and a rather lengthy misdescription of the portfolio of the Minister. Whilst the title of the Minister's Department has changed, the Minister's portfolio has changed many times over the last 10 or 12 years, it is not my understanding that the Minister has ever combined Immigration and Multicultural Affairs with Industrial Affairs. 

  3. The Amended Application provides no clue as to how the Tribunal could have made an error in the decision where the Applicant did not attend the Tribunal and had not submitted any documentation or given any evidence other than the original protection visa application. 

  4. I refer to the decision of Bennett J in SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 at [16], where her Honour said:

    By not attending the hearing, the applicant has, in effect, waived his opportunity to provide further comment on adverse information.  Re Refuge Review Tribunal; Ex parte Aala [2000] 2004 CLR 802 he cannot then complain that by that action on his part the Tribunal has denied him procedural fairness.

  5. It is a situation where the Tribunal, having made it pellucidly clear that it was unable to make a decision in the Applicant's favour on the basis of the information before it but when the Applicant failed to accept the opportunity to elaborate on that information at the scheduled hearing the inevitable consequence was the rejection of his application.  (See SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [16] and also NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287).

  6. The Applicant accepted the fact that by choosing to go to Canberra he did not attend the Tribunal hearing.  He indicated that he was in some financial difficulties and asked the Court for an extension of time. He indicated that he had borrowed money and if he were to return to China he would be unable to pay that money back.  That may well be true but the Court does not have the power to extend an applicant's visa and the submissions that the Applicant has made do not show any jurisdictional error on the part of the Tribunal.

  7. I have read the decision myself in detail as I have read other relevant documents in the Court Book in order to satisfy myself that there is no arguable case for any other jurisdictional error not referred to by the applicant. He is not legally represented. There is no reviewable error.

  8. In my view the decision is a privative clause decision as described in sub-s.474(2) of the Migration Act. As it a privative clause decision no writ of prohibition, certiorari or mandamus can be issued. The application will be dismissed.

  9. There is an application for costs on behalf of the First Respondent Minister.  The Applicant has been wholly unsuccessful in his claim and in my view there is no reason why the Court would depart from the practice that a successful party should be entitled to an order for costs against the unsuccessful party.  I propose to make the Applicant should pay the First Respondent's costs. 

  10. Having made that decision it is now appropriate to consider the amount of those costs.  The amount that is sought is $3,800.00. 

  11. The amount sought, $3,800.00, is to my mind an appropriate figure.   The Applicant is not in employment and has been unemployed for 20 days.  I accept the fact that he would have great difficulty in meeting an order for costs at this stage.  That is a matter I should take into account and I propose to allow time to pay.  I propose to allow six months to pay.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  7 September 2006

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