SZIGW v Minister for Immigration - [2006] FMCA 1829

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIGW v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1829

MIGRATION – Review of Refugee Review Tribunal decision – failure of applicant to appear at Tribunal hearing – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss.426A, 441(A), 474

MIEA v GUO & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Applicant:

SZIGW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 381 of 2006

Judgment of:

Turner FM

Hearing date:

20 November 2006

Date of last submission:

20 November 2006

Delivered at:

Sydney

Delivered on:

20 November 2006

REPRESENTATION

The applicant appearing in person

Solicitors for the Respondent:

Ms Johnson of Sparke Helmore

THE COURT ORDERS THAT:

The application is dismissed.
The applicant is ordered to pay the first respondent's costs for this application fixed at $2,500.
I direct the registry not to enter these orders until I have settled my reasons for decision.
I direct the solicitors for the first respondent to prepare draft orders for settling and supply to my chambers by email within seven days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 381 of 2006

SZIGW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 7 February 2006 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 3 February 1955 and claims to be from China and of Chinese ethnicity and Falun Gong faith.
The applicant has one child who remains living in China, born on

23 September 1982. There is little other evidence before the Court in relation to the applicant's family background although, in her protection visa application form, the applicant stated she was divorced in March 2003 in Shandong.
The applicant arrived in Australia on 17 June 2005 on a visitor's visa which was issued in Beijing on 25 May 2005.
The applicant lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs which was received on 7 July 2005. In this application she claimed she was a Falun Gong practitioner and would be imprisoned if she returned to China. She claimed to have already been in prison and tortured after going with a group of other practitioners to protest against the government.
The application was refused by a delegate for the first respondent on

17 September 2005. On 18 October 2005 the applicant filed an application for review of the decision of the minister's delegate with the Refugee Review Tribunal. The applicant was invited by letter, dated 3 November 2005, to give oral evidence before the tribunal. However, she failed to attend the hearing on 12 December 2005.
Pursuant to s.426A of the Migration Act 1958:
If the applicant is invited to appear before the tribunal and does not appear before the tribunal on the day on which the applicant is scheduled to appear, the tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
In this case the Tribunal proceeded to make a decision on the review without taking any further action to allow the applicant to appear before it. The Tribunal therefore complied with s.426A of the Migration Act.
On 5 January 2006 the Tribunal handed down its decision dated

12 December 2005, affirming the decision of the Minister's delegate refusing to grant the applicant a protection visa. The Tribunal noted in it’s reasons:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is well founded or that it is for the reason claimed. It remains for the applicant to satisfy the tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant's case for him or her. Nor is the tribunal required to accept uncritically any and all allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-170). (Court Book (“CB” page 54).
The Tribunal continued:
SZIGW has made serious allegations about her problems in China; in particular that she was a member of a banned group and subjected to three months of detention and torture in 2002/2003. However, apart from a description of the ill-treatment she faced, she has submitted almost no detail about her experiences. She has provided no medical evidence of any injuries nor any evidence from anyone associated with Falun Gong that she was a practitioner. She has not stated whether she was subjected to any further ill-treatment during the period of over two years after her release from detention. She does not claim to have participated in any Falun Gong related activities since her arrival in Australia some six months ago. Given the brevity and vagueness of her account the tribunal is unable to establish the relevant facts.
The tribunal is not satisfied on the evidence before it that SZIGW has a well-founded fear of persecution within the meaning of the Convention. (CB pp.54-5).
The tribunal then proceeded to affirm the decision not to grant a protection visa.
Today the Court has asked the applicant to provide further detail in support of her grounds of application. What has been said today does not establish that the Tribunal has made any error of law in reaching its decision.
The applicant acknowledges that the letter dated 3 November 2005, advising her of the hearing, was sent to her correct address at 148-460 Pitt Street, Sydney. In that letter the Tribunal wrote to the applicant pursuant to s.425 of the Migration Act, advising that it was unable to make a favourable decision on the information before it, and invited her to give oral evidence and present arguments at a hearing as detailed in the letter. The letter gave the applicant notice of the specified day, time and place at which the applicant was scheduled to appear, and was given to the applicant by one of the means specified in s.441A of the Act, namely by pre-paid post. It also provided a period of notice to the applicant that was at least the prescribed period of 14 days provided for under the regulations, before the date the hearing was due to take place (CB 44-45)
The letter also contained a statement to the effect of s.426A regarding the options available to the Tribunal if the applicant failed to appear before it.
The applicant at one stage of her submissions to the Court stated that she had decided not to proceed with her appeal before the Refugee Review Tribunal. She then changed that evidence and said that was only her initial view, and that she wanted to proceed with that review. However, as stated earlier in my reasons, the Tribunal complied with s.426A of the Act in that, when the applicant failed to appear before it as invited, the Tribunal made a decision on the review without taking any further action to allow the applicant to appear before it.
In her application the applicant has set out two grounds as follows:
i)The decision involved an error of law in that procedures that were required by the migration regulation to be observed in connection with the making of the decision were not observed.
The applicant was invited by the Court to provide details in support of that ground but did not provide any detail which showed that the tribunal had made an error of law.
The Court rejects this ground.
The second ground in the application of the applicant is:
ii)That the Tribunal failed to carry out its statutory duty as the Tribunal member, Ms Phillipa McIntosh, could not demonstrate that I do not face a risk of being prosecuted if I return to China.
It is not for the Tribunal to establish that the applicant did not face a risk of being persecuted. The applicant was invited by the Court to provide detail in support of that ground but did not provide any detail that established that the Tribunal had made an error of law.
The Court rejects this ground.
The Tribunal's decision is a privative clause decision and has not been affected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere. Accordingly, the application is dismissed.

RECORDED : NOT TRANSCRIBED

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Dian Neligan

Date: 20 November 2006