SZHZT v Minister for Immigration - [2007] FMCA 1159

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHZT v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1159

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – where applicant did not attend the Tribunal hearing – applicant elected not to attend the Tribunal hearing – no reviewable error.

Migration Act 1958, ss.424A, 425, 426A, 474(2), 36(2)

SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287

Applicant:

SZHZT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3783 of 2006

Judgment of:

Scarlett FM

Hearing date:

3 July 2007

Date of Last Submission:

3 July 2007

Delivered at:

Sydney

Delivered on:

3 July 2007

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondents:

Ms Mansour

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00 and I will allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3783 of 2007

SZHZT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 31^st October 2006 and handed down on 15^th November 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant now seeks judicial review of that decision.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 16^th June 2006. He applied for a protection (Class XA) visa on 21^st June 2006. When his application for a visa was refused on 7^th August 2006, the applicant applied to the Tribunal for a review of that decision. That application for review was received on

6^th September 2006, although I note an error in the Tribunal decision which wrongly identifies 6^th June 2006 as the date of the application for review. That is clearly an error as it is 10 days before the applicant arrived in Australia. Nothing turns on that point.
The applicant applied for a visa on the basis that he claimed a well-founded fear of persecution as a Falun Gong practitioner. The Tribunal wrote to the applicant on 6^th September 2006, the day it received his application for review. That letter told the applicant that a member of the Tribunal would look at the information that he provided and either make a decision in his favour or invite him to attend a hearing of the Tribunal. The letter went on to tell the applicant that a hearing was his opportunity to give the Tribunal evidence to support his application.
On 18^th September 2006 the Tribunal wrote to the applicant telling him:
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 went onto say:
We now invite you and any persons listed below to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.
The letter told the applicant that the hearing would take place on

18^th October 2006 at 1:00 pm.
On 16^th October 2006, the Tribunal received a “Response to Hearing Invitation”. A tick had been placed in the box beside the words:
No, I do not want to come to a hearing.
The document bore a signature in Chinese script and bore the date that appears to be 9^th October 2006.
The Tribunal considered the application noting that the applicant had chosen not to attend the hearing. A copy of the Tribunal decision record appears at pages 65 to 70 of the Court book. The Tribunal noted that the applicant had informed the Tribunal that he did not wish to attend the hearing but submitted a document whose English translation said that it was a patient record issued by Tong Zhou, number 5 People's Hospital, relating to the applicant. The document stated that he was admitted to that hospital on 12^th February 2006 suffering from a scalded left shoulder. That document was accompanied by some photographs. The Tribunal decision record sets out at page 68 of the Court Book that the applicant provided no explanation as to the significance of the report and photographs.
The Tribunal considered what little evidence there was and I note that the applicant did not provide any additional evidence to the Tribunal when he lodged his application for review. The Tribunal's Findings and Reasons are set out on pages 69 to 70 of the Court book.
The Tribunal noted that the applicant described himself as a national of China and arrived in Australia on a Chinese passport. The Tribunal assessed the applicant’s claims against China as the applicant's country of nationality.
The Tribunal went onto say, however:
The applicant's claims, quoted above, are lacking in detail in significant respects. They relate to a generalised fear that he will be unable to practise Falun Gong exercises with impunity if he returns to China. The Tribunal notes that the applicant has not provided any detail in relation to his claimed involvement in or commitment to Falun Gong activities and groups. He has offered no evidence of his experience or competence in Falun Gong exercises or of any knowledge of Falun Gong teachings and precepts other than three photographs taken on 5 October 2006.
Nor has the applicant provided much detail in relation to his alleged detention and ill treatment for three months from January 2006, and the Tribunal is not satisfied on the evidence that he was incarcerated or ill-treated as he claims.
As the Tribunal noted above, the relevant facts of the individual case must be supplied by the applicant himself or herself in as much detail as is necessary to enable the decision maker to establish the voracity and merits of the claim. Having carefully considered the available evidence the Tribunal is not satisfied that the applicant is or ever has been a Falun Gong practitioner, has suffered any harm in the past for religion or any other Convention reason or faces a real chance of serious harm for reason of religion or any other Convention ground in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution in China, his country of nationality for any Convention reason. (See Court Book pages 69 to 70).
The applicant filed an application for judicial review and an affidavit in support on 18^th December 2006. The applicant first came before the Court on 15^th February 2007 and was adjourned to a call over before a Registrar of the Court on 27^th April 2007. It was then listed for final hearing before me. The applicant has attended the Court today. He has not filed any written outline of submissions nor filed any amended application. He relies on his original application which sets out three grounds which I will quote in full:
1. I was denied procedural fairness in connection with the making of the decision.
2. The decision otherwise contrary to law.
3. It is not reasonable for the Tribunal to deny that I am or was ever a Falun Gong practitioner.
No particulars are provided of any those grounds.
The solicitor for the first respondent Minister filed a written outline of submissions on 26^th June 2007. In that submission the Minister’s solicitors submit that the first two grounds of review in the absence of particulars cannot be meaningfully responded to and ought to be dismissed. The third ground of review is a merits claim which cannot be entertained by this Court and ought to be dismissed.
The applicant told the Court when asked to expand on his claims that he and another person had come to Australia at the same time.

The other person got a protection visa but he did not. He asked the Court rhetorically “why is that?” The applicant later told the Court that the other applicant had attended a hearing of the Tribunal but he conceded that he had not. He told the Court that his migration agent had told him that he had a choice as to whether or not to attend the hearing and that he could just supply written information instead.

The applicant said that he provided the written document and the photographs.
He initially denied that he had told the Tribunal that he did not wish to attend the hearing but identified his signature on the response to hearing invitation, a copy of which appears on page 58 of the Court Book. He told the Court that his migration agent had asked him to sign the document and he had done so without knowing what was in it.
The applicant claimed that the Tribunal had deprived him of an opportunity to attend a hearing. That is quite incorrect. The applicant acting on what he said was the advice of his migration agent elected not to attend the hearing. It is well established that applicants who choose not to attend a Tribunal hearing place themselves at a serious disadvantage. In SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16], Healy J stated:
The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant’s favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.
The applicant's claim that the Tribunal decision is otherwise contrary to law is not supported by any particulars whatsoever. I am mindful of the fact that the applicant is not legally represented and on the basis of his own submissions appears to have been very poorly advised by his migration agent.
I have read through the decision and supporting documents myself independently of both the applicant's and the first respondent's claims in order to ascertain whether any arguable case for a jurisdictional error has been made out. There is no breach of s.425 of the Migration Act 1958 (“the Act”). The Tribunal invited the applicant to attend a hearing and the applicant chose not to. It was as I, and many of my judicial colleagues have said, in cases such as this, a most unwise decision. There is no breach of s.424A of the Act because the Tribunal’s decision was based entirely on the inadequacy of the information before it. There is no breach of s.426A of the Act. There is no breach of any Act or any of the Migration Regulations 1994 (“the Regulations”) that I am able to discern in a judgment.
The applicant's claim that it is not reasonable for the Tribunal to deny that he is or ever was a Falun Gong practitioner is no more than a challenge to the Tribunal's finding. The fact is that the applicant did not provide sufficient information to satisfy the Tribunal that he met the criterion in s.36(2) of the Act to be granted a protection visa. The applicant's claim that another person who arrived from China at the same time who applied for a protection visa and got one is no argument at all as to why the Tribunal or the delegate of the Minister should have granted the applicant a protection visa.
Where applicants do not take the opportunity to provide sufficient information in support of their claims to the Tribunal whose task it is to conduct the merits review of their decisions, it is hardly surprising that their claims are unsuccessful. There is no jurisdictional error.

The Tribunal's decision is a private clause decision as defined by s.474(2) of the Act. The application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The amount sought is $3,500.00 which is in the circumstances a relatively modest sum and well within the scale provided by the Federal Magistrates Court Rules 2001. The applicant has been wholly unsuccessful on his claim. He has told the Court that he does not have the money to meet the amount sought in the costs order. I see no reason to disbelieve that claim. Nevertheless, it is not a reason not to deprive a successful party of an order for costs. I will make the order for costs as sought but I will allow time to pay.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: