SZJDQ v Minister for Immigration - [2006] FMCA 1753

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJDQ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1753

MIGRATION – RRT decision – Chinese applicant claiming 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(1), 426A(1), 476

Applicant:

SZJDQ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2151 of 2006

Judgment of:

Smith FM

Hearing date:

7 November 2006

Delivered at:

Sydney

Delivered on:

7 November 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr O Young

Solicitors for the Respondents:

Blake Dawson Waldron

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 $2,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2151 of 2006

SZJDQ

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 7 August 2006, in which the applicant applies for 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”). The applicant seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 June 2006 and handed down on 18 July 2006. The Tribunal affirmed the decision of a delegate made on 31 March 2006 which refused to grant a protection visa to the applicant.
The application was returnable at a first court date before me on 30 August 2006. There was no attendance by the applicant, but I adjourned the hearing until 13 September 2006 when the applicant did attend. He was assisted by a Mandarin interpreter. The nature of the proceedings was explained to him by me and in written information, and he was given an opportunity to file an amended application and evidence, after receiving a bundle of relevant documents and a referral for free legal advice. He did receive a referral to an experienced immigration practitioner, but has filed no further documents.
The applicant arrived in Australia in February 2006, and on 27 February 2006 lodged an application for a protection visa. His application did not identify any person who assisted him. He attached a typed statement explaining his claims for protection in Australia against return to his country of nationality, the People’s Republic of China.
The statement claimed that he had commenced to practise Falun Gong exercises in 1998. He claimed that in October 1998 he was watching videos about police suppression of Falun Gong “exercises”, when:
In the same time, I heard some one knock on my door, two bobbys come to my home, in fact they were track me for long time. They saw I am watching, and then said now we have evidence to catch you. I have been catch to the prison. They criminal assault me to forcing me explain the motivation to practise Fa Lun Gong.
The applicant claimed that he was released after his father paid his bail. He claimed that he lost his job because of his exercising Falun Gong, and cannot find a new job. He therefore asked a friend to help him to come to Australia.
No details of his Falun Gong practices in China or Australia were provided, and there were no details of what happened to him between 1998 and his coming to Australia. No corroborative evidence was provided either to the Department or on appeal to the Tribunal.
The applicant’s application for review by the Tribunal was lodged on 13 April 2006. He did not appoint an agent or authorised recipient, but requested the Tribunal to send correspondence to a mailing address, being a post office box at Auburn.
The Tribunal sent an acknowledgement of the application to that address, which explained to the applicant about the importance of a hearing and that he could send further documents to the Tribunal.
It also sent to that address a letter dated 4 May 2006 informing 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 letter invited the applicant to attend a hearing on 27 June 2006 and informed him that, if he did not attend, the Tribunal could make a decision on his case without further notice. He was again invited to send any new documents or written arguments.
The Tribunal in its statement of reasons said that no response was received to that letter, and the applicant did not attend before the Tribunal at the appointed hearing date and time. It decided to make a decision on the review without taking any further action to enable the applicant to appear before it. I am satisfied that the Tribunal had that power under s.426A(1) of the Migration Act, and can see no error in its decision to exercise the power.
The applicant today, when invited to explain his absence, declined to give any explanation.
In its statement of reasons, the Tribunal referred to the absence of any significant details in his claims, and concluded:
The applicant was placed on notice by the Tribunal’s letter of invitation to a hearing that, on the basis of the evidence before it, the Tribunal was unable to make a favourable decision. Without more than the vague assertions before it, the Tribunal cannot be satisfied that the applicant has any significant knowledge of, or experience in, the practice of Falun Gong. As it is not satisfied that the applicant was a practitioner of Falun Gong in China, it follows that the Tribunal cannot be satisfied that he experienced any of the acts of harm that he claims resulted from his adherence to Falun Gong.
All his claims are founded upon the assertion that he was a Falun Gong practitioner, about which the Tribunal is not satisfied, and there is nothing else before the Tribunal upon which it could conclude that the applicant has a well‑founded fear of persecution.
I can see no arguable jurisdictional error affecting the Tribunal’s decision.
The applicant’s application to this Court contains three grounds:
1.The Tribunal failed to carry out its statutory duty. The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. S.424A of the Migration Act 1958.
2.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.
3.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.
I can see no arguable merit in the first ground, since in my opinion the Tribunal’s decision undoubtedly did not rely upon information falling within s.424A(1). The reason for the Tribunal’s decision was its inability to be satisfied by the claims which had been made, due to their lack of detail and the absence of the applicant from a hearing to give further explanations.
In relation to the second ground, I can identify no aspect of the applicant’s claims which arguably the Tribunal overlooked or did not address.
In relation to the third ground, the Tribunal’s reasoning in my opinion was clearly both rational and had a logical foundation.
The applicant today had no submissions which sought to identify jurisdictional error. 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) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 30 November 2006