SZIMB v Minister for Immigration

[2006] FMCA 998

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIMB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 998

MIGRATION – RRT decision – Taiwan businessman 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, 44.12(1)(a)
Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(a), 426A(1), 476

Applicant: SZIMB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG707 of 2006

Judgment of: Smith FM

Hearing date: 4 July 2006

Delivered at: Sydney

Delivered on: 4 July 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

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 $1,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG707 of 2006

SZIMB

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 filed on 9 March 2006 under r.44.05 of the Federal Magistrates Court Rules 2001 (Cth). It seeks 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 relation to a decision of the Refugee Review Tribunal (“the Tribunal”) which was dated 17 January 2006 and handed down on 9 February 2006.  The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant. 

2. The application was returnable at a first court date before me on 11 April 2006.  On that occasion the applicant appeared and was assisted by a Mandarin interpreter.  He declined an invitation to be referred to a lawyer for free advice, but I gave him an opportunity to consider his arguments after receiving a bundle of relevant documents.  He has filed an amended application which I shall refer to, but no additional affidavits. 

3. At the first court date, I warned the applicant that the matter was listed today for a hearing under r.44.12, and that his application might be dismissed if I were not satisfied that it had raised an arguable case for the relief claimed.

4. The applicant’s application for a protection visa was filed on 2 August 2005 without any apparent assistance from an agent.  It contained only a brief history upon which the applicant claimed protection in Australia against return to his country of nationality, the Republic of China (Taiwan).  He said in answer to questions:  

   40Why did you leave that country? 

   I left Taiwan because I supported “Guoming Party” in Taiwan.  I was not a politician, however, I was very active to promote “Guoming Party”, after “Min Jin Party” was in power of Taiwan, “Min Jin Party” started their revenge activities to people who support “Guo Ming Party”.  As I was a Merchant, and was doing business in Taiwan, I had power to influence some people around to support “Guoming Party”, in order to stop me from doing this, people from “Min Jin Party” sent people to interrupt my usual business activities, they tried to scare away my customers and I could hardly continue my business.  I had to come to Australia for protection. 

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

   If I return to Taiwan, I will suffer the same as before I came to Australia.  Because the people from “Min Jin Party” would continue persecute people supporting “Guo Min Party” the political situation in Taiwan has been uneasy for most of the time.  I don’t have confidence to continue to live in Taiwan.  There is the danger of war with People Republic of China, and there is the danger of being persecuted from “Min Jin Party”. 

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

   I will suffer mental and financial persecution from the “Min Jin Party” of Taiwan. 

5. No further details of these claims nor supporting evidence was ever provided to the Department or the Tribunal.  The delegate refused the application on 21 September 2005. 

6. The applicant lodged an appeal to the Tribunal from the delegate’s decision, without appointing an advisor or person authorised to receive correspondence.  It gave a residential address at Homebush West, but asked that correspondence should be sent to a mailing address in Pitt Street, Sydney. 

7. The Tribunal sent to that address a letter dated 14 November 2005 inviting the applicant to attend a hearing on 9 December 2005.  The letter informed the applicant: “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 applicant was invited to return a “Response to Hearing Invitation” form and any new documents or written arguments he wanted the Tribunal to consider. 

8. In its statement of reasons, the Tribunal said that there was no response to the invitation, and the applicant did not appear on the date and at the place of hearing to which he was invited.  It said: 

   In these circumstances and pursuant to S.426A of the Act, the Tribunal has decided to make its decision on a review of the papers without taking any further action to enable the applicant to appear before it. 

9. The Tribunal then identified the claims made by the applicant in his protection visa application. It also referred to country information concerning Taiwan. It noted that Taiwan is a multi‑party democracy, and that there were no reports of arbitrary or unlawful deprivation of human rights by the government or its agents, and the Constitution provides for an independent judiciary, freedom of speech and of the press.

10. The Tribunal said that, because the applicant had not attended the hearing, the Tribunal was “unable to test the applicant’s very brief claims”.  It concluded: 

    As the Tribunal was unable to interview the applicant it cannot assess his claims in a favourable light and in view of the substantial country information from reputable sources which points to Taiwan being a well governed multi‑party democracy, with a human rights record among the best in Asia, it is unable to accept the applicant’s claims that he faces persecution on his return to Taiwan. 

    The Tribunal is not satisfied that the applicant faces the risk of persecution for a Convention reason now or in the foreseeable future if he returns to Taiwan.  

11. I have considered the procedures followed by the Tribunal and its reasoning, and am unable to identify any arguable ground of jurisdictional error which could allow the applicant to succeed in his application. 

12. The applicant today informed me that his absence from the Tribunal’s hearing occurred because he did not receive the invitation letter due to his absence on business in Melbourne. He did not claim that he had made any attempt to contact the Tribunal before it gave its decision. In those circumstances, I consider that he has no argument that the Tribunal erroneously held that it had the power to proceed under s.426A(1), nor that its decision to exercise that power miscarried.

13. The applicant’s application in this Court contains five grounds:  

    1.The Tribunal failed to carry out its statutory duty. 

    2.The Tribunal failed to consider my claims. 

    3.The Tribunal did not observe Migration Act 1958 properly to making the decision.

    4.The Tribunal did not refer to any independent information for the consideration of my application. 

    5.The Tribunal failed to assess the chance of my persecution on my return to Taiwan. 

14. No arguable substance is shown in the application nor in any other document or submission made by the applicant in relation to Grounds 1, 2 or 3.  Ground 4 and 5 are incorrectly premised, in my opinion.  The Tribunal did refer to relevant independent information, as it was entitled to.  It did attempt to assess the applicant’s chance of persecution if he returned to Taiwan, but was unable to be satisfied for the reasons which I have indicated above.  I can see no arguable error in the Tribunal reasoning in that way. 

15. The grounds set out in the applicant’s amended application are: 

    1.The Tribunal failed to carry out its statutory duty. The Tribunal was required to provide particulars of the information for affirming the decision according to S424A of the Migration Act 1958. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.

    2.The above particulars had to be provided in writing (SAAP V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDUSTRIAL AND ETHNIC AFFIRS (2005) HCA 24 *18 May 2001) para 208 “ … whether those steps would be judged to be necessary or even desirable in the particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”

    3.The Tribunal did not refer to any independent information for the consideration of my application. 

    4.The Tribunal failed to assess the chance of my persecution on my return to Taiwan. 

16. The contention that there was a failure to observe procedures required by s.424A, in my opinion, has no arguable substance. As I have indicated, the reason for the Tribunal affirming the delegate’s decision was its inability to assess the claims made by the applicant due to their vagueness and his absence from a hearing. The Tribunal did not take information which was specifically about the applicant and use that as a reason for affirming the delegate’s decision.

17. In relation to the independent information referred to by the Tribunal, it was not obliged to follow the s.424A(1) procedure (see s.424A(3)(a)).

18. In relation to the ground numbered 4, as I have indicated above, the Tribunal did attempt to assess the applicant’s claim, and I consider that it made no jurisdictional error when doing so. 

19. 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 dismiss the application at an interlocutory stage under r.44.12(1)(a).

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  18 July 2006