SZIHV v Minister for Immigration - [2006] FMCA 1699

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIHV v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1699

MIGRATION – Protection visa – Falun Gong member – whether jurisdictional error.

Applicant:

SZIHV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 415 of 2006

Judgment of:

McInnis FM

Hearing date:

9 November 2006

Delivered at:

Sydney

Delivered on:

9 November 2006

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Ms Z Brauer

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 415 of 2006

SZIHV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 13 December 2005.

In its decision the Tribunal affirmed a decision of a delegate of the First Respondent not to grant to the Applicant a protection visa.
The background details in this application have been appropriately set out in the First Respondent’s outline of submissions. It is noted the Applicant is a citizen of the People’s Republic of China and he arrived in Australia on 27 July 2005. On 19 August 2005 he made an application for a protection visa. A delegate of the First Respondent refused to grant the protection visa on 28 September 2005.

The Applicant then made an application to the Tribunal on 31 October 2005 seeking to review the delegate’s decision. As indicated, the Tribunal in a decision dated 13 December 2005 affirmed the delegate’s decision. It is significant in the present case, however, also to note that on 10 November 2005 the Tribunal invited the Applicant to attend a hearing to be held on 13 December 2005. The Applicant did not attend the hearing.
The Applicant’s claims, which appear in the Court Book and which I accept have been accurately summarised in the First Respondent’s submissions include the following:
·That he is a Falun Gong practitioner and was arrested in Tiananmen Square in October 2002 and was sent to a labour camp for two and a half years.
·During the time of the camp he claimed to have suffered unfair treatment and assaults to his mind and body.
·He wrote to pledge not to practise Falun Gong and was released on 23 October 2002 and had then bribed a government officer to issue a passport and to apply for a visitor’s visa to Australia.
The application to the Tribunal effectively repeated the same claims. Before this court the Applicant had filed an application for judicial review on 9 February 2006. In that application he set out the grounds of application as follows:
“1.The decision involved an error of law in that: There was no evidence or the other materials to justify the making of the decision
2. The Tribunal failed to carry out its statutory duty
3.The tribunal cannot make a decision that I am not a Falun Gong practitioner without further information.”
The Applicant then filed an Amended Application on 24 April 2006.

It is noted that the Amended Application clearly does not provide what could be regarded as grounds of application. Since the Applicant is self‑represented and has appeared this day with the assistance of an interpreter, I determined that I should consider the Amended Application together with the original application. It is evident from the Amended Application that whilst not containing any further grounds it does to a large extent restate the claims presented originally by the Applicant and restated in his application for review before the Tribunal. It is useful to set out the grounds of application in the Amended Application. Whilst noting that they do not properly represent grounds for judicial review, they do however add further to the background information. In the Amended Application the Applicant states the following:
“1.I am a common Falun Gong Practitioner. The group was outlawed on 22^nd July 1999. The government accused Falun Gong of “spreading fallacies, hoodwinking people, inciting and creating disturbances and jeopardizing social stability”. Since then, the government has arrested thousands of Falun Gong practitioners and is proceeding with show trials. Some have been sent directly to labour camps without trials.
2In October 2002 I travelled to Tiananmen Square to practice the Falun Dafa exercises. As a result, I was arrested and sent back to my hometown. After several transfers I was then sent to the Shandong Labour Camp. In the following two and half years I suffered all sorts of unfair treatment and assaults on both my body and mind. I was released on 23 October 2002 after I wrote the so-called pledge of giving up Falun Gong.
3.I understand that if I was still in China I would definitely be prosecuted and put into jail.”
It is evident from the extracts set out above in this judgment that those matters essentially seek to restate substantially the facts which were set out in the Applicant’s claim and repeated before the Tribunal.
The Tribunal in its decision after setting out relevant legislation made significant findings that on the material both in relation to the general nature of the material on Falun Gong and specific contradictions that exist in the claims, namely the Applicant had been in prison in October 2002 for two and half years but released on 23 October 2002, there was insufficient information to make a favourable decision without a hearing. As indicated the Applicant did not attend the hearing.

It should be noted that before this court the Applicant relevantly stated:
“The last time I did not attend. I missed the opportunity.”
Indeed, it is apparent that the Applicant did miss the opportunity to attend the hearing and not only did he miss the opportunity to attend the hearing but clearly missed the opportunity it provided to raise further issues and answer questions raised by the Tribunal concerning apparent contradictions and other matters.
The Tribunal was not satisfied the Applicant was a Falun Gong practitioner and had come to the unfavourable attention of the Chinese authorities because of any association with Falun Gong. It was not satisfied otherwise in relation to the claims that the Applicant was arrested in October 2002 and mistreated in labour camps or that he had to pay a bribe to obtain a passport. It accordingly concluded that it was not satisfied that the Applicant had a well-founded fear of persecution.
The First Respondent after noting the three grounds of review in the original application, which I accept as submitted by the First Respondent are not particularised, then submits that in this case there is no ground which identifies appropriately any jurisdictional error, and again appropriately submits that the grounds set out earlier in this judgment without particulars are effectively meaningless.
In my view the Tribunal in this matter has approached its task in a manner which is free of jurisdictional error. It has issued an appropriate invitation to the Applicant to attend the hearing and even up to the present date there has been no explanation for the failure of the Applicant to attend the hearing which resulted in what he accurately described as a missed opportunity. The Tribunal when faced with the prospect of an Applicant not attending a hearing is entitled to then proceed to consider the material before it and express, as it has done in this instance, its dissatisfaction with the material and then make findings of a kind reasonably open to it that it is not satisfied in relation to the essential claims made by the Applicant.
By proceeding in that manner I can see no basis upon which this court is able to conclude that the Tribunal has in fact made a decision of a kind where it could be suggested that there is jurisdictional error. Indeed I can detect no error of any kind in the Tribunal’s process and the manner in which it conducted the inquiry in this instance.
Accordingly it follows that the application as amended should be dismissed with costs. The orders of the court are:
(1) The application as amended be dismissed;
(2)The Applicant shall pay the First Respondent’s costs which I fix in the sum of $5,000.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 9 November 2006