SZIBN v Minister for Immigration
[2006] FMCA 912
•13 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIBN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 912 |
| MIGRATION – RRT decision – Chinese applicant claiming political persecution – did not attend Tribunal hearing – no arguable case – application dismissed at show‑cause hearing. |
Federal Magistrates Court Rules 2001 (Cth), rr.44.05, 44.12(1)(a)
Migration Act 1958 (Cth), ss.424A(1), 425(1), 426A(1), 476
| Applicant: | SZIBN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG69 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 13 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr B Cramer |
| Solicitors for the Respondents: | Blake Dawson Waldron |
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 $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG69 of 2006
| SZIBN |
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 2001 (Cth) 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) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 6 December 2005. The Tribunal affirmed a decision of a delegate refusing the applicant a protection visa.
The application was returnable at a first court date before me on 8 February 2006. I explained the nature of the proceedings to the applicant, and he was given the opportunity to get free legal advice after receiving a bundle of relevant documents. The orders I made allowed him to file an amended application and any affidavit evidence, but he has not availed himself of those opportunities. At the first court date I warned the applicant that his application might be dismissed today if I were not satisfied that it had raised an arguable case for the relief claimed.
The applicant’s application for a protection visa was accompanied by a typed statement, in which he claimed that he feared that he would be persecuted if he returned to his country of nationality, The People’s Republic of China, “because I openly support and promote the highly controversial issue of the Taiwanese Government and their movement for independence and the liberation from the Chinese government”. His statement made vague references to his participating in actions of “overt protest/demonstrations, web publishing’s and verbal promotion of our understanding”. He claimed to have been dismissed from his employment, and to have been told by his relatives since coming to Australia that “government officials are looking for me”.
No detailed statement was ever provided to the Department and Tribunal, and there was no corroborative evidence provided. A delegate refused the application on 3 August 2005.
The applicant’s application for review by the Tribunal did not appoint an agent nor nominate an authorised recipient for correspondence. It requested the Tribunal to post any correspondence to a post office box at Belmore.
By letter dated 19 September 2005 posted to that address, the Tribunal invited the applicant to attend a hearing on 1 November 2005. The letter informed the applicant that the Tribunal had considered the material before it but was unable to make a decision in his favour on that information alone.
The Tribunal received no response to that invitation, and there was no appearance at the hearing. The Tribunal then proceeded under s.426A(1) to make a decision without taking any further action to enable the applicant to appear. I can see no arguable contention that the Tribunal lacked that power, or that its discretion to follow it miscarried.
The Tribunal’s reasons for affirming the delegate’s decision were stated by it in summary at the conclusion of its “Findings and Reasons”:
Without the opportunity to question the Applicant about his activities, I cannot make findings of fact as to the nature and degree of the Applicant’s past or ongoing involvement (if any) with this particular cause. I also cannot make findings as to whether the Applicant would continue to carry out the claimed activities if he returned to China or, if he did, whether this would attract the adverse attention of the Chinese authorities.
Accordingly, I cannot accept the Applicant would have a well founded fear of persecution for a Convention reason should he return to the PRC.
I can see no arguable jurisdictional error in the Tribunal following that reasoning.
The applicant has filed only one application in the Court. The first ground alleges that the Tribunal was in breach of s.424A(1) of the Migration Act. However, there is no substance to that contention shown in the application nor upon my reading of the reasons of the Tribunal. The reason for the Tribunal affirming the delegate’s decision was its inability to make findings of fact, due to the vagueness of the material of the applicant’s original claims and his absence from a hearing to provide further evidence. No obligation under s.424A(1) can arguably arise in that circumstance.
The second ground is that the Tribunal “failed to invite the applicants to appear before the Tribunal” and was in breach of s.425(1) of the Migration Act. However, it is clear that the Tribunal did comply with its obligation to invite the applicant to a hearing, and there is no arguable substance shown for this ground.
The application says: “the applicant claims he was unaware of such invitation” without providing sworn evidence to explain this. The applicant’s unsworn statements to me today gave three different reasons for his absence from the hearing, each of them inconsistent with the previous one. He first claimed that he did not get the letter. He secondly claimed that he did receive the letter, but did not go because he feared he would be arrested. He thirdly claimed that he did not attend because his lawyer had said that it did not matter if he did not go.
The established interpretation of the Tribunal’s power to proceed under s.426A(1) means that it would be unnecessary for a Court at a final hearing to explore the truth of any of the three explanations presented by the applicant. He has not contended that the Tribunal was aware of any circumstance which rendered inappropriate its use of s.426A(1), and in my opinion he has not raised any arguable ground of jurisdictional error in relation to the Tribunal’s reliance upon that provision.
I am not satisfied that the application has raised an arguable ground for the relief claimed, and I consider it is appropriate for me to exercise the power to dismiss this application at an interlocutory stage under r.44.12(1)(a).
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 5 July 2006
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