SZIWZ v Minister for Immigration
[2006] FMCA 1369
•5 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1369 |
| MIGRATION – RRT decision – Chinese applicant fearing persecution for Falun Gong practice – did not attend hearing – no arguable case – application dismissed at show‑cause hearing. |
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), ss.424A, 424A(1), 426A, 476
| Applicant: | SZIWZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1550 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 5 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J Wright |
| 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 $1,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1550 of 2006
| SZIWZ |
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 30 May 2006, in which the applicant seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 11 April 2006 and handed down on 4 May 2006. The Tribunal affirmed a decision of a delegate made on 12 January 2006 refusing to grant a protection visa to the applicant.
The application was returnable at a first court date before me on 4 July 2006. The applicant appeared on that day and was assisted by a Mandarin interpreter. The nature of the proceedings was explained to him by me and in an information sheet. My orders gave the applicant leave to file an amended application and affidavits in support after receiving a bundle of relevant documents and a referral for free legal advice.
The applicant has filed an amended application, which I shall address below, and the Minister’s submissions in favour of the dismissal of the case today have been reduced to writing and served on the applicant.
I explained to the applicant at the first court date that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant’s application for a protection visa was lodged on 22 December 2005. His claims for protection in Australia against return to the People’s Republic of China were contained in a very brief typed insertion. He claimed that he had commenced to practice Falun Gong after the banning of that movement in 1999. He claimed that he had practised “secretly”, and that in June 2005 police detained the leader of his group and his home was searched. The statement said: “I could not return to my home, and went to hide myself at my relative’s home before I came to Australia”. He claimed that since arrival his wife had told him that “police had got enough evidence to charge me”. No further details of these events were provided to the Department nor subsequently to the Tribunal, and no corroborative evidence was ever provided.
The applicant’s application for review by the Tribunal, as with his visa application, did not appoint a migration agent or other recipient for correspondence. It requested the Tribunal to send correspondence to the applicant at a mailing address, being a Haymarket post office box.
The Tribunal posted to that address a letter dated 24 February 2006 inviting the applicant to attend a hearing on 30 March 2006. The letter told 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 asked to return a “Response to Hearing Invitation” form. He did that, indicating that he would attend. However, the Tribunal noted that he did not attend nor contact the Tribunal to explain his absence. The Tribunal said that: “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”.
I can see no arguable contention that the Tribunal did not have that power or that it did not exercise it according to law.
The applicant has not presented any evidence to explain his absence from the hearing, although his original application said: “I did not attend the interview due to my worries about my safety”. If that were true, then the applicant made an unwise decision, but that cannot provide grounds for setting aside the Tribunal’s decision.
In the Tribunal’s statement of reasons under the heading “Findings and Reasons”, the Tribunal referred to the absence of pertinent details of the applicant’s claims, and said:
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 the applicant is indeed a genuine and committed Falun Gong practitioner. I cannot be satisfied that he experienced mistreatment or persecution as a Falun Gong practitioner prior to his departure, and indeed, he does not claim to have been persecuted prior to his departure. I cannot be satisfied that he has participated in Falun Gong activities in Australia. In these circumstances, I am not satisfied that the applicant has a well founded fear of persecution in the PRC for reason of his belief in Falun Gong.
I have considered the reasoning of the Tribunal and can see no arguable jurisdictional error affecting its decision.
The applicant’s application and amended application make three contentions. The first is that the Tribunal based its decision upon information which was not put to the applicant in writing pursuant to the provisions of s.424A. However, the Tribunal’s reasoning, in my opinion, unarguably did not rely upon information which was covered by s.424A(1).
The second contention is that the Tribunal “failed to consider my application according to S91R of the Migration Act”. However, I can see no argument with any prospects of success that the Tribunal failed to correctly apply the provisions of the Migration Act.
The third contention is that “the Tribunal misunderstood my claims, and had bias against me when considering my application for a protection visa”. However, in my opinion the Tribunal identified the claims in fact before it, and the manner in which it decided those claims provides no arguable substance for a claim of bias.
The applicant attended today but had no additional submissions to make.
Considering all the material before me, 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 r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 18 September 2006
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