SZHYJ v Minister for Immigration
[2006] FMCA 817
•23 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHYJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 817 |
| MIGRATION – RRT decision – Chinese person claiming persecution as Falun Gong practitioner – did not attend Tribunal hearing – no arguable jurisdictional error raised – application dismissed at show-cause hearing. |
| Migration Act 1958 (Cth), ss.426A(1), 476. Federal Magistrates Court Rule 44.12 |
| Applicant: | SZHYJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3812 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 23 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3812 of 2005
| SZHYJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under r.44.05 of the Federal Magistrates Court Rules seeking an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal handed down on 22 November 2005. The Tribunal affirmed the decision of a delegate refusing to grant a protection visa to the applicant.
The application was returnable at a first court date before me on 25 January 2006, when the applicant attended in person with the assistance of an interpreter. The nature of the proceedings was explained to her in an information sheet and by myself. Orders were made giving the applicant an opportunity to receive legal advice after obtaining a bundle of relevant documents, and to file an amended application and additional affidavits by 18 April 2006. She was clearly warned of today’s listing, and that her application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has received advice under the Free Legal Advice Scheme, and has filed an amended application but no additional affidavits.
I have considered the documents in the Court Book, as well as the documents filed by the applicant.
The applicant’s application for a protection visa was supported only by a brief typed statement, in which it claimed that she was a Falun Gong practitioner in China. She claimed that she had avoided arrest, and came to Australia after being warned that the police were collecting information “to demonstrate I was a practitioner of Falun Gong.” Very few details of these claims were contained in the statement, and no supporting material was presented to the delegate, nor subsequently to the Tribunal.
The applicant’s application for review of the delegate’s decision did not appoint an authorised agent, nor give any telephone contact numbers.
A letter dated 20 September 2005 and sent to her specified address for correspondence told her:
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.
She was invited to a hearing on 20 October 2005. She was told that if she did not attend, the Tribunal could make a decision without further notice.
The applicant did not attend the hearing, and no contact was made to the Tribunal explaining her absence. The Tribunal in its reasons indicates that it proceeded to decide the case under s.426A(1). In my opinion, on the material before me the Tribunal clearly did have that power, and I can see no arguable contention that its exercise was attended by any jurisdictional error.
The Tribunal’s reasons for affirming the Tribunal’s decision were summarised by it at the conclusion of its “findings and reasons”:
As I find the applicant has not provided sufficient evidence to support her assertion that she is a Falun Gong practitioner, I am not satisfied that she is a genuine and sincere practitioner of Falun Gong as claimed.
Accordingly, I cannot accept the applicant would have a well-founded fear of persecution for a Convention reason should she return to PRC.
I have considered the Tribunal’s reasoning, and consider it was clearly open to the Tribunal. I can discern no arguable jurisdictional error affecting its decision.
The application originally filed in this Court has as its grounds:
1. The decision involved an important exercise of the power conferred by the Migration Act and Regulations.
2. There was no evidence or the other materials to justify the making of the decision.
3. I face a risk of being jailed if I go back to China.
Only paragraph 2 makes an assertion capable of amounting to jurisdictional error. However, plainly it has no substance, given the path of reasoning actually followed by the Tribunal which I described above.
The affidavit which accompanied the application contained only an assertion of refugee status, which does not advance her case in this Court.
The amended application filed on 10 April 2006 contains one ground:
The Tribunal made the finding which is biased.
The particulars of this assertion rely on the outcome of the Tribunal’s decision and its reasons.
Paragraph (b) complains:
The Tribunal are not satisfied I am genuine and sincere Falun Gong practitioner just because I have not provided sufficient evidence.
This indeed identifies the reasoning followed by the Tribunal, but in my opinion it is incapable of supporting an allegation of bias on the part of the Tribunal or any other jurisdictional error.
The remaining paragraphs of the particulars contain factual assertions as to the applicant’s situation in China, which are incapable of supporting the ground of bias.
The applicant today was unable to present any submissions showing an arguable case.
I have considered all the material presented by the applicant, and I am not satisfied that the application has raised an arguable case for the relief claimed. In the circumstances I consider it appropriate for me to exercise the power given to me under r.44.12(1)(a) to dismiss the application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM.
Associate: Iliya Marovich-Old
Date: 8 June 2006
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