SZIWI v Minister for Immigration - [2006] FMCA 1339

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIWI v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1339

MIGRATION – RRT decision – Chinese person claiming persecution as member of underground church – did not attend Tribunal hearing – no arguable case – application dismissed at show cause hearing.

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

Applicant:

SZIWI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1473 of 2006

Judgment of:

Smith FM

Hearing date:

29 August 2006

Delivered at:

Sydney

Delivered on:

29 August 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms G Broderick

Solicitors for the Respondents:

Clayton Utz

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 1473 of 2006

SZIWI

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 23 May 2006 which seeks an order that the respondent show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 30 March 2006 and handed down on 20 April 2006. The Tribunal affirmed a decision of a delegate dated

30 December 2005 refusing to grant a protection visa to the applicant.
The applicant attended the first Court date before me on 20 June 2006. I gave him an opportunity to file an amended application and any affidavits by 18 August 2006, after receiving a bundle of relevant documents and a referral for advice under the free legal scheme. The nature of the proceedings was explained to the applicant by me and in an information sheet, and the applicant was warned that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
According to the Court's file the applicant was referred to a barrister for free legal advice on 26 June 2006, and advice was posted to the applicant on 19 July 2006. The barrister was unable to contact the applicant because his mobile telephone was switched off on each occasion when he attempted to call. The applicant did not file any amended application nor additional affidavits.
The applicant's application for a protection visa was filed on

21 October 2005. Although it disclosed assistance given by a non-migration agent called Qiang Li, the application requested that all correspondence should be sent to the applicant himself.
It attached a brief typed statement, in which the applicant explained why he sought protection in Australia against return to China. He claimed in 2002 to have started visiting “our underground Church on regular basis”. He claimed that in August 2004:
Five members were detained at different locations on the same day and we were forced to dismiss all the gatherings afterwards. All those five members were unable to return from the police station until the day I left China, which was almost one year afterwards, and we didn't have any information from them.
He claimed to have come to Australia “because of such dangerous situation facing in front of me”. Details of these events were not provided to the Department nor the Tribunal, and no corroboration was presented.
The applicant's application for review did not disclose any agent, and requested that correspondence should be sent to the applicant at a post office box at Eastwood.
The Tribunal mailed a letter to that address on 20 February 2006, inviting the applicant to attend a hearing on 28 March 2006 at 9.30 am. 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.
No response to the letter was received by the Tribunal, and the Tribunal said:
The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. 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.
The Tribunal's reasons for affirming the delegate's decision were summarised at the end of its statement of reasons:
On the basis of the scanty information provided by the applicant, and without the opportunity to obtain further information at a hearing, I am unable to be satisfied that he is indeed a genuine and committed Christian. I cannot be satisfied that he experienced mistreatment or persecution because of his religion prior to his departure; indeed, I am not able to be satisfied, based on the information provided, that the applicant was of adverse interest to the PRC authorities prior to his departure, or that he might be if he were to return.
The applicant has been put on notice that the Tribunal was unable to decide his application favourably on the basis of the information provided, but has not taken the opportunity to provide additional information to the Tribunal, or to attend a hearing and give evidence about his claims.
Because of the deficiencies in the information provided by the applicant in relation to all of these matters, and without the opportunity to obtain further information at a hearing, I am unable to be satisfied that he was a Christian in the PRC, whose activities were known to the authorities, and who was therefore at risk of persecution. In these circumstances, I am not satisfied that the applicant has a well founded fear of persecution in the PRC for reason of his religion.
I have considered the evidence before me as to the procedures and reasoning of the Tribunal, and am unable to identify any arguable ground of jurisdictional error affecting the Tribunal's decision.
The applicant's original application had three grounds:
1. My application was not assessed fairly as some claims I put forward wasn’t considered on full weight. Some were simply ignored without even mentioning in officer’s decision letter.
2. The time for me to arrange going to the hearing wasn’t long enough which led me to failing to attend. However my friend David did ring RRT on my behalf regarding extending the hearing date. The request was declined. I think RRT failed to provide me a fair opportunity for my application to be better heard in front of him.
3. The officer only re-cited some information I put forward against the information he obtained from country information. He failed to assess it against the reality. I don’t think the case officer had any first hand experience about China. All country information was provided to be read by any public, including the Chinese government. I don’t think any person who wrote those information was able to get very close to the real Chinese life. Therefore their opinion could only take as an opinion instead of as the only rules to assess a refugee application.
In relation to ground 1, I consider that the applicant has no argument with any prospect of success to show that the Tribunal ignored any of his claims. The Tribunal identified what they were from his visa application, and pointed out their deficiencies. I consider this ground has no arguable substance.
The second ground was unsupported by any sworn evidence giving details of the alleged request for a re-scheduled hearing. It has no support in the documents filed by the Tribunal. Moreover, the applicant today told me that, in fact, he never received the invitation and was unaware that he had been invited to a hearing.
Whether the applicant did or did not receive the invitation letter, I do not consider that any arguable ground of review is shown in relation to the Tribunal’s decision to proceed under s.426A(1). The Tribunal followed the required procedures for the posting of a hearing invitation to the address for service of an applicant, and the applicant failed to attend. The Tribunal, in my opinion, unarguably had the power to proceed under s.426A(1). Even if the applicant did receive the invitation and was refused an adjournment as alleged in the application, no jurisdictional error would be made out.
The third ground has no basis on the reasoning in fact followed by the Tribunal. This did not rely on country information, but was based on an assessment of the inadequacies of the applicant's protection visa claims in the light of his failure to attend the Tribunal's hearing or to present additional information to the Tribunal.
The applicant has not filed any amended application nor written submissions. As I have indicated above, his oral submission to me was that he did not receive the invitation letter at all. However, that contention cannot provide him with an arguable ground of review in circumstances where the preconditions to s.426A(1) were satisfied.
He also complained that the free advice he received was pessimistic, and that he wanted more advice. However, I consider that he has been given sufficient opportunity to get any further legal advice if he wished.
For the above reasons I am not satisfied that the application has raised an arguable case for the relief claimed and I consider it appropriate to dismiss the application under rule 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: Iliya Marovich-Old

Date: 8 September 2006