SZIXO v Minister for Immigration

[2007] FMCA 1616

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIXO v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1616

MIGRATION – Review of decision of RRT – where applicant claims fault of migration agent –where no agent specified on the application to Tribunal.

NAST v Minister for Immigration [2004] FCA 86
SZFDE v Minister for Immigration [2007] HCA 35

Applicant: SZIXO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1612 of 2006

Judgment of: Raphael FM

Hearing date: 17 September 2007

Date of last submission: 17 September 2007

Delivered at: Sydney

Delivered on: 17 September 2007

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Ms R Francois

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1612 of 2006

SZIXO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 4 July 2005.  On 3 August 2005 he applied to the Department of Immigration & Multicultural Affairs for a protection (Class XA) visa.  On 19 December 2005 the delegate of the Minister refused to grant the visa.  On 9 January 2006 the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.  In his application for review which commences at [CB 59] and concludes at [CB 62] the applicant gives an address in Burwood and a mobile telephone number.  Section C which relates to him having an adviser is completed with the information that he does NOT have an adviser.  Section D is not completed.  Section F is completed by the applicant’s signature in Chinese.  Regrettably section G is not completed.  One has to wonder about the applicant’s understanding of the form given that he appears not to understand English and is assisted in this court by an interpreter.  In any event the effect of the way in which the form was completed was that all correspondence with the applicant had to be sent to him at his address in Burwood.  He told me today that he had been at that address at the relevant time.

2. The applicant’s claims to be person to whom Australia owed protection obligations arose out of his alleged association with Falun Gong in his home city.  He had been introduced to Falun Gong in 1994 and was elected to a position of authority in his community in 1996.  On 26 April 1997 he claimed to have led practitioners from his community to Zhoingnahai where he was arrested and placed in a detention centre in Beijing and abused by the police.  He said that when he returned to his home city he lost his job and was abused.  The applicant was asked to attend an interview with the Immigration Department delegate on 13 October 2005 but he did not do so.  On 7 November 2005 the delegate wrote a letter to the applicant asking for his comments by 28 November 2005.  He did not respond.  It was therefore perhaps not surprising that the applicant did not attend the hearing before the Tribunal.  Because of his non-attendance the Tribunal was unable to take up with him certain matters upon which it wished to be informed before it could feel satisfied that the applicant had a genuine claim to be a refugee:

   “The applicant claims that because of his involvement in Falun Gong he was “put to police detention centres” however he mentions being detained only on one occasion.  He provides no detail about other instances of detention.  He also claims to have been “beaten up by the police” - but provides little information about that either - he makes vague mention of being “abused” by the police in 1997 but provides no details of what this “abuse” entailed and provides no other instances. 

   He claims that his house and property were taken away from him but provides no detail about when these incidents occurred and by whom they were taken.  He also claims that his family has been “adversely affected” because of him - but again, the applicant has not elaborated on this claim - there is no detail about how they were affected, or even when they were affected.”

3. It will be seen from the above that the Tribunal had difficulty in coming to the required state of satisfaction:

   “Apart from flimsy and unsupported allegations, the applicant has provided no real detail about his claim to fear harm arising from his supposed association with Falun Gong.  The applicant failed to attend his scheduled hearing and present oral arguments and evidence to explain himself and:

   ·    Without the opportunity to question the applicant to ascertain the depth of his personal knowledge of an commitment to the practice of Falun Gong and;

   ·    In the light of his failure to provide any documentary evidence to support his claims and;

   ·    Without the Tribunal being able to question the applicant to ascertain answers to the questions raised through his written claim [and discussed above] and;

   ·    Without being able to ascertain what he has been doing since 1997;

   The tribunal cannot be satisfied on the evidence before it, that the applicant is a genuine adherent to Falun Gong or that he would face harm in the reasonably foreseeable future upon return to the PRC.”

4. The role of the court in cases such as this was explained by Allsop J in NAST v Minister for Immigration [2004] FCA 86 where his Honour said:

   “[6]  My task in an application such as this is to ensure that the Tribunal has approached the matter lawfully so that it can be assessed one way or the other whether the claims of the applicants have been lawfully and properly considered. What it is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well-founded fear of persecution under the Refugee Convention.

   [7]  Pursuant to the statute, if the Tribunal is satisfied of all relevant things it must grant a visa. Also, if the Tribunal is not satisfied of all relevant things, it must not grant a visa. Here, the Tribunal had the claims of the applicant in writing before it. It gave notice of a hearing to the applicant because the Tribunal said that it was not satisfied on the papers alone of the version of events given by the applicant.”

5. It is the same situation that I have before me.  The Tribunal was not satisfied on the papers.  It asked the applicant to come to a hearing and he did not do so.  The Tribunal’s consequent inability to be satisfied of the required matters was almost a foregone conclusion.  There was no jurisdictional error in the manner in which the Tribunal came to that decision.

6. Today before me the applicant said that the invitation to the hearing had been taken to his migration agent and that the migration agent had done everything and that the migration agent had told him that he could apply for an adjournment of the proceedings because he was working outside of Sydney at the time.  He told me that he had told the migration agent to do that and it had not happened.  I did not ask the applicant to go into the witness box to give evidence on oath nor for him to be cross-examined by counsel for the Minister because it seemed to me that it was clear from the face of the document that I have already referred to that there was no migration agent and even if there was one it was not a fault of the Tribunal that he had acted in the manner in which he did.  It was not the fault of the Tribunal that the migration agent had not been informed of the hearing and it was not the fault of the Tribunal that the alleged migration agent had not asked it for an adjournment.  Whilst the High Court has taken the view that third party fraud could unravel a Tribunal decision when an appellant did not appear at a hearing on the fraudulent advice of a purported migration agent; SZFDE v Minister for Immigration [2007] HCA 35 I do not believe that this case comes anywhere near the facts cited in that decision.

7. I am therefore not satisfied that the applicant has made out any grounds upon which I should review this decision.  I dismiss the application.  I order that the applicant pay the first respondent’s costs which I assess in the sum of $4000.00.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: