SZIIQ v Minister for Immigration

[2006] FMCA 972

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIIQ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 972

MIGRATION – RRT decision – Chinese applicant did not attend Tribunal hearing – no arguable case – application dismissed at show cause hearing.

Migration Act 1958 (Cth), ss.424A, 426A, 426A(1), 474, 476, 483A

Federal Magistrates Court  Rule 13.10(c), 44.05, 44.12(1)(a)

S357 of 2003 v Minister for Immigration [2005] FCA 1684

Applicant: SZIIQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 462 of 2006

Judgment of: Smith FM

Hearing date: 20 June 2006

Delivered at: Sydney

Delivered on: 20 June 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms K McNamara

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.

2. The applicant must pay the first respondent’s costs in the sum of $1,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 462 of 2006

SZIIQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under r.44.05 filed on 13 February 2006. It seeks an order that the respondents show cause why a remedy should not be granted under s.476 Migration Act1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 13 December 2005 and handed down on 5 January 2006. The Tribunal affirmed the decision of a delegate refusing to grant a protection visa to the applicant.

2. The application was returnable before me at a first Court date on 14 March 2006.  The applicant attended on that day and was assisted by a Mandarin interpreter.  The nature of the proceeding was explained to him by me and in an information sheet.  I made orders allowing the applicant to file an amended application and affidavits by 26 May 2006 after receiving a bundle of relevant documents and a referral to a lawyer under the free advice scheme.  I listed the matter today for a hearing under r.44.12, and I warned the applicant that his application might be dismissed if I were not satisfied that it had raised an arguable case for the relief claimed. 

3. The applicant has not filed any additional material. 

4. The applicant's original application for a protection visa contained only very brief statements explaining why he sought protection in Australia against return to his country of nationality, China.  He said:

   40.    Why did you leave that country?

   Applicant claims that he left China because he found it very difficult to have a good life in China. 

   He was a self-employed businessman in China, but the business environment was very hard in China for people like him who have no power and have no connection with the authorities. 

   He claims that he was often blackmailed by police and other authorities.

   41.    What do you fear may happen to you if you go back to that country?

   The applicant claims that he hates the Chinese government.  When he saw the democratic exhibition in Australia, he felt that he could voice his hatred toward the Chinese government. 

   He is also interested in Falun Gong for two reasons.  First Falun Gong members have the same hatred against the Chinese government.  Second, Falun Gong people are very kind, and he feels like those people were his close family members.  In many occasion he participated in the protests against the Chinese government.  The recent one was on 26 June 2005 near the Chinatown McDonalds. 

   He believes Chinese government is aware of his activities in Sydney.  If he goes back to China, he will be persecuted.

   42.    Who do you think may harm/mistreat you it you go back?

   He believes the Chinese government will mistreat him.

   43.    Why do you think this will happen to you if you go back?

   He believes that Chinese government monitors overseas Chinese regularly.  So his activities in Australia may have been videotaped and reported to the Chinese government.

5. No further details or supporting documents were sent to the Department, nor subsequently to the Tribunal.

6. The applicant's application for review by the Tribunal did not appoint an agent or authorised recipient for correspondence.  It requested the Tribunal to send all correspondence to an address at Kogarah, which the applicant identified as his residential address.

7. The Tribunal sent a letter dated 3 November 2005 to that address, inviting the applicant to attend a hearing on 13 December 2005 at 12 pm.  The letter informed the applicant that

   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.

8. The letter was returned to the Tribunal ‘unclaimed’ on 28 November 2005.  It received no other communications from the applicant, and he did not attend the hearing.  His application had not provided the Tribunal with any telephone contact details. 

9. In its statement of reasons the Tribunal refers to the sending of its invitation, and the absence of the applicant at the appointed time. It said that pursuant to s.426A it decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

10. The Tribunal referred to the applicant's claims, and the difficulty of identifying a Convention ground for the problems referred to by the applicant.  It said:

    ... apart from his own assertions he has submitted no evidence that he has participated in any activities in Australia which might have attracted the adverse attention of the PRC authorities to him.  He claims to have participated in many protests but specifies only one.  He does not state what "democratic exhibitions" he witnessed.  He does not claim to wish to become a Falun Gong practitioner or to have participated in any Falun Gong-related activities.  Given the brevity and vagueness of his account, and the absence of any supporting information, the Tribunal is unable to establish the relevant facts.

    The Tribunal is not satisfied, on the evidence before it, that (the applicant) has a well-founded fear of persecution within the meaning of the Convention.

11. I have considered the procedures followed by the Tribunal and its reasoning, and am unable to identify any arguable jurisdictional error affecting its decision. 

12. The applicant's application to this Court contains three grounds:

    1.The Tribunal failed to give me information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review and the Tribunal failed to invite me to comment on it. By failing to do so the Tribunal breached the Section 424A(1) of the Migration Act 1958.

    2.The Tribunal failed to invite me to appear before the Tribunal. By failing to do so the Tribunal breached the Section 425(1) of the Migration Act 1958. The Tribunal also failed to properly notify me of the decision. It sent decision to my previous address after I have notified the Tribunal of my new address.

    3.The Tribunal failed to conduct a fair and unbiased review of my application.

13. There is no substance to the first ground. The reason for the Tribunal affirming the delegate's decision was its inability to establish and to make findings of relevant fact, due to the inadequacy of the material supplied by the applicant and his absence from a hearing. This does not reveal reliance on any information requiring a notice under s.424A(1).

14. The second ground was not elaborated or supported by any evidence giving it substance.  The applicant's affidavit merely says:

    The Tribunal sent the decision to my previous address after I had notified it of my new residential and postal address.

    No details of the suggested communication to the Tribunal are given, and there is no support for the contention in the Court Book. In my opinion, the applicant’s affidavit does not establish a sufficient factual basis to show an arguable error by the Tribunal in its exercise of its discretion to proceed under s.426A(1). I consider that it amounts to no more than the assertion of a claim without sufficient support to show an arguable case (c.f. Emmett J in S357 of 2003 v Minister for Immigration [2005] FCA 1684).

15. In any event, on the unsworn statements of the applicant to me today, he does not have available evidence which would make out jurisdictional error arising from the Tribunal's decision to proceed to under s.426A(1). The Court Book filed by the Minister shows only one change of address form being forwarded to the Tribunal. That was first received by the Tribunal by facsimile at 17:23 on 5 January 2006. However, the Court Book indicates that the Tribunal had handed down its decision on the same day at an earlier time. The Tribunal therefore had become functus officio by the time that the change of address was notified. It cannot be argued that its failure to take it into account vitiated its decision to proceed under s.426A(1) without appointing a rescheduled hearing.

16. The applicant in his statements today did not contest that this was the first time that he attempted to notify the Tribunal of a change to his address, and he accepted that the Tribunal had already made its decision by the time he notified it. I therefore do not consider that the applicant has, whether formally or informally, pointed to any facts which could provide him with an arguable case for the relief claimed in relation to ground 2 of the application. Even if the applicant did not have actual notice of the hearing invitation, there are now clear authorities which support the validity of a decision to proceed under s.426A(1) (see VNAA v Minister for Immigration (2004) 136 FCR 407 at [14-15]).

17. In relation to ground 3, the applicant has presented no evidence at all to give any substance of the complaint of bias.  I

18. For the above reasons, I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it is appropriate for me to exercise the power to dismiss the application at an interlocutory stage under r.44.12(1)(a).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  10 July 2006