SZIVW v Minister for Immigration
[2006] FMCA 1198
•08 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1198 |
| MIGRATION – RRT decision – Chinese Falun Gong practitioner – did not attend Tribunal hearing – no arguable case – dismissed at show cause hearing. |
| Migration Act 1958 (Cth), ss.424A, 424A(1), 426A, 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: | SZIVW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1424 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 08 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 08 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms Bautista |
| Solicitors for the Respondents: | Sparke Helmore |
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 $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1424 of 2006
| SZIVW |
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 17 May 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) in respect of the decision of the Refugee Review Tribunal dated 28 March 2006 and handed down on 18 April 2006. The Tribunal affirmed a decision of a Delegate refusing to grant a protection visa to the applicant.
The application was given a first Court date before me on 14 June 2006. The applicant attended on that occasion and was assisted by a Mandarin interpreter. The nature of the proceeding was explained to him by me and in an information sheet. I gave the applicant an opportunity to file an amended application and affidavits after receiving a bundle of relevant documents and a referral for free legal advice. The applicant was told that his application might be dismissed today if the Court was not satisfied that it raised an arguable case for the relief claimed.
The applicant did file an amended application which I shall consider below.
The applicant lodged his application for a protection visa on 22 December 2005. He did not disclose any person assisting him, and attached a brief typed statement explaining his reasons for seeking protection in Australia against return to his country of nationality, the People’s Republic of China. The applicant claimed to have become a Falun Gong member in 2000, and:
I practised Falun Gong with other members in their homes and we had frequent contacts with overseas branches. I worked for a clothing factory, we developed almost all our female workers to be members of Falun Gong, as they believed that Falun gong can improve their health especially after they gave birth to their child and had to accept the operation of birth control. The above mentioned attracted the attention of the police, and they came to investigate this. When police targeted me, I left the company and hide myself at a friend’s home in countryside. I spent RMB 120,000 to get my passport and visa to come to Australia for protection. My wife has called me again and again not to return to China as police were still waiting for me. They have got enough evidence to charge me. I don’t want to take the risk to return to China. I will face persecution for the Chinese authorities on my return to China.
No corroboration of these brief claims was provided to the Department or the Tribunal, and no further details were ever supplied. The delegate drew attention to the lack of evidence in her decision dated 12 January 2006, which was sent to the applicant.
The applicant filed an application for review by the Tribunal on
13 February 2006, again not appointing an agent or authorised recipient for correspondence. He gave a mailing address in Pitt Street, Sydney.
The Tribunal sent to that address a letter dated 22 February 2006, inviting the applicant to attend a hearing on 22 March 2006. The letter informed the applicant that it had considered the material before it but was unable to make a decision in his favour on that information alone. The applicant was invited to attend the hearing and also to “send us any documents or written arguments you want the Tribunal to consider”.
The applicant returned a signed ‘response to hearing invitation’ on 2 March 2006, indicating that he did wish to attend. He did not send any written material.
In its statement of reasons, the Tribunal said:
The applicant responded to the Tribunal’s letter indicating that he wished to appear before the Tribunal. The Tribunal is therefore satisfied that the applicant was aware of the time, date and place of the scheduled hearing. The applicant did not, however, attend the scheduled hearing. He did not contact the Tribunal to seek a postponement, nor did he contact the Tribunal to give any reasons why he could not attend at the scheduled time and date. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before it.
The applicant, in the documents he has filed and in his submission to me today, has not disputed these facts. He accepted that he knew about the hearing, but said in his application:
I suddenly became aware that Chinese spies were around. I worried about that and did not attend the hearing, but I wanted to communicate with the Tribunal in writing. However, the Tribunal was not interested in doing so.
The applicant has not contended that he made any contact with the Tribunal that might render its decision to proceed under s.426A(1) invalid. I can see no argument available to him to show this. Contrary to the assertion that the Tribunal was not interested in receiving written communication, its correspondence sent to the applicant invited him to do that very thing.
In its statement of reasons explaining why it affirmed the delegate’s decision, the Tribunal referred to the absence of important details in the statement accompanying the visa application. It said:
Given the lack of details in the applicant’ claims, the Tribunal is not satisfied that the applicant has been or is a practitioner of Falun Gong. The Tribunal is not satisfied that the applicant was or is a person of interest to the police in China.
The Tribunal is not satisfied on the evidence before it that the applicant has experienced serious harm in China amounting to persecution for a Convention reason. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if he returns to China.
I can see no arguable jurisdictional error arising from the Tribunal’s reasons.
The applicant’s original application and his submission to me today claimed that the Tribunal: “had bias against me because I failed to attend the hearing invited”. However, in my opinion, no evidence as to a closed mind is suggested by any of the procedures or reasoning of the Tribunal. I can see no arguable ground of bias available to the applicant on the material he has presented to the Court.
The second ground in the application contends that the Tribunal failed to carry out its statutory duty to invite the applicant to comment in writing on information pursuant to s.424A(1). However, in my opinion this contention has no substance in the reasons provided by the Tribunal. As I have indicated above, its reasoning did not rely upon any information, but followed from its inability to be satisfied about the claims presented by the applicant due to their lack of detail and the applicant’s absence from the hearing. No arguable error could arise (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 applicant’s amended application repeated the contention of a breach of s.424A, without providing any particulars.
It also contained contentions that quote “my case was not considered in accordance to s 91R of the Migration Act”; that the Tribunal relied upon out of date country information, and that it did not “provide sufficient grounds for refusal of my application”. However, there is no arguable substance shown for any of these contentions.
Taking into account all the material and submissions presented by the applicant, 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 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: 21 August 2006
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