SZISB v Minister for Immigration - [2006] FMCA 1110

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZISB v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1110

MIGRATION – RRT decision – Chinese person claiming persecution for political opinions and Falun Gong practice – did not attend Tribunal hearing – no arguable case – application dismissed at show cause hearing.

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

Federal Magistrates Court Rule 44.12(1)(a)

SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195

Applicant:

SZISB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1116 of 2006

Judgment of:

Smith FM

Hearing date:

25 July 2006

Delivered at:

Sydney

Delivered on:

25 July 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the First Respondent:

Mr Bird

Solicitors for the Respondents:

Phillips Fox

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 $1,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1116 of 2006

SZISB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 13 April 2006 seeking an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth). The application is in respect of a decision of the Refugee Review Tribunal dated 21 February 2006 and handed down on 14 March 2006. The Tribunal affirmed the decision of a Delegate refusing to grant a Protection Visa to the Applicant.
The application was given a first Court date before me on 23 May 2006. The Applicant attended on that occasion and was assisted by a Mandarin interpreter. The nature of the proceedings was explained to him by me and in an information sheet. I gave him an opportunity to file an amended application and any additional evidence by 18 July after receiving a bundle of documents and a referral to a lawyer for free legal advice. He was informed that his application might be dismissed at today's listing if I were not satisfied that it had raised an arguable case for the relief claimed.
The Applicant subsequently filed an amended application to which I shall refer below.
The Applicant's application for a Protection Visa attached a brief typed statement explaining why he sought protection in Australia against return to his country of nationality, The Peoples Republic of China. He claimed to have come from a family which was persecuted because of the "one party dictatorship in China" and had suffered during the cultural revolution. He claimed that in 1989 "I organised farmers and businessmen for donations for the students". He claimed in 1990:
The coordinator was detained, and I became one of the victims. The government heavily penalised me. I was illegally detained for2 days for investigation.
He also claimed that in 1996 he became a Falun Gong member, and said: "I promoted Falun Gong from one town to another as I believe in Falun Gong". He claimed that "the Chinese government paid more attention to me" and "police targeted me and once detained me for 1 day for questioning in 2005. I had to come to Australia for protection." No greater detail of these events was provided in the application nor subsequently to the Department or the Tribunal.
The Applicant's application for review by the Refugee Review Tribunal did not appoint an agent or authorised recipient in the proceeding, but requested that correspondence should be sent to a mailing address in Pitt Street, Sydney. The Tribunal sent to that address on 18 January 2006 a letter informing 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.
The Applicant was invited to attend a hearing on 15 February 2006 to present his case. The Applicant does not dispute that he received that invitation. However, the Tribunal in its reasons said that he did not appear, and:
He has not contacted the Tribunal to explain his failure to appear. Previous correspondence sent to the address nominated by the applicant has apparently been received, and there is nothing to indicate that the applicant did not receive the hearing invitation letter that was sent to him at the nominated address. The applicant has not provided a phone number at which he could be contacted. The Tribunal has discharged its obligation to invite the applicant to attend a hearing. In these circumstances, and pursuant to s.426A of the act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
In my opinion it was open to the Tribunal under s.426A(1) to proceed without taking any further action. I can see no arguable contention that it lacked that power or that its discretion to exercise it miscarried.
In its statement of reasons, the Tribunal addressed each of the elements in the Applicant's refugee claims. It indicated that based on the scanty information provided by the Applicant in the protection visa application it was unable to be satisfied that he had a well-founded fear of persecution based either on his family background, the events of the cultural revolution, his claimed detention in 1990 or his claimed involvement in Falun Gong.
I have read the Tribunal's reasons and can see no arguable error made by it which could provide the basis for a remedy in this Court.
The Applicant's application for review originally filed followed a precedent which stated four grounds:
1. The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to China based on the member of a particular social group in China.
2. The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
3. The Tribunal failed to consider my claims.
4. The Tribunal failed to carry out its statutory duty.
These grounds have no substance in their allegations that the Tribunal failed to address the Applicant's claims, and that the Tribunal did not provide rational reasons for affirming the Delegate's decision.
No particulars are given of an alleged failure to carry out a statutory duty, and it has no apparent prospects.
The Applicant's amended application contains in effect three grounds. The first is that:
The Tribunal had bias against me because I did not attend the hearing.
The application says:
The reason I did not attend the interview was because I had worried that the spies from the Chinese Government around RRT, I would rather answer the questions from RRT in writing.
The Applicant today repeated this explanation for his absence, and told me that he subsequently regretted his decision not to attend. However, his explanation does not demonstrate any failure by the Tribunal to follow procedures required of it by law. Regrettably the Applicant has lost his opportunity to attend a hearing by a decision on his part not to attend.
I cannot see anything in the circumstances that, even arguably, might reveal an appearance of bias or actual bias on the part of the Tribunal.
The second contention in the amended application is, as I understand it, that the Tribunal failed to follow the procedure required under s.424A to invite the applicant to respond in writing to information relied upon by the Tribunal. However, I can see no argument available to the Applicant that the Tribunal did use relevant information as a reason for affirming the Delegate's decision. It is clear, in my opinion, that the reason for the Tribunal affirming the Delegate's decision was its assessment of the Applicant's claims as being inadequate to allow the requisite satisfaction to be reached. It is established that such reasoning does not reveal a failure to follow s.424A (see SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, and SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801).
The third contention in the amended application is that:
The Tribunal failed to consider my claims according to s 91R of the Migration Act 1958.
However, no particulars of this contention are shown and in my view it has no arguable substance.
For the above reasons, I am not satisfied that the applicant has raised an arguable case for the relief claimed, and I consider it is appropriate to dismiss the application today under r.44.12(1)(a).

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 7 August 2006