SZJMB v Minister for Immigration
[2007] FMCA 62
•16 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJMB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 62 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – did not attend Tribunal hearing – no arguable case – application dismissed at show‑cause hearing. |
Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.424A, 426A(1), 476
| Applicant: | SZJMB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2853 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 16 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2007 |
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 $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2853 of 2006
| SZJMB |
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 5 October 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) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 August 2006 and handed down on 12 September 2006. The Tribunal affirmed a decision of a delegate made on 13 June 2006 refusing to grant a protection visa to the applicant.
The applicant arrived in Australia in March 2006, and on 30 March 2006 he lodged an application for a protection visa. His application did not disclose any assistance in making the application, but attached a short typed statement in English claiming that he had been an employed member of the Falun Gong since 2000. He claimed:
I helped to promote Falun Gong, and I received basic financial support from Falun Gong. From 2000 to 2006, I introduced more than 500 members to Falun Gong, I helped to print numerous promotion leaflets for Falun Gong, and sent them to people around and members secretly stopped. That was my job and my belief. However, when I was distributing some leaflets to members, police detained me. I was physically harmed by the Chinese authorities for more than ten days. Soon after I was released, I got my passport and visa to come to Australia for protection. As I was a professional Falun Gong member, I would subject to more severe persecution from the Chinese authorities.
No details of these claims were provided to the Department or the Tribunal, and no corroboration was ever provided.
The application for visa and the review application gave the applicant’s residential address at Campsie, but both of them requested that correspondence should be sent to an address in Pitt Street, Sydney.
The Tribunal sent to that address a letter dated 25 July 2006 informing the applicant that:
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 22 August 2006, and informed him that if he did not attend the Tribunal could make a decision without further notice.
The Tribunal received “by hand” on 3 August 2006 a “Response to Hearing Invitation” signed by the applicant informing it that he would attend. However, he did not attend nor make any contact with the Tribunal, and the Tribunal proceeded to decide the matter pursuant to its powers under s.426A(1).
In its statement of reasons, the Tribunal said that it thought that the applicant’s claims were “vague, very general and lacking in detail in significant respects”. It concluded:
In view of the lack of detail contained in the protection visa application the Tribunal cannot be satisfied that the applicant was a Falun Gong practitioner or a member or that he was otherwise involved with Falun Gong. On the basis of the limited evidence and the lack of details regarding all the claims made, the Tribunal is not satisfied that the applicant faces a real chance of persecution within the meaning of the Convention. Looking to the reasonably foreseeable future, the Tribunal is not satisfied that the applicant’s claimed fear of a Convention‑related persecution is well founded.
I have considered the reasoning and procedures followed by the Tribunal, and can see no arguable jurisdictional error affecting its decision.
The applicant has filed an application and an amended application which follow precedents making unparticularised allegations that the Tribunal had bias, that it failed to consider claims, that it failed to carry out its statutory duty, and that it was in breach of its obligations under s.424A. However, I can see no arguable substance to any of these contentions in this matter.
The application is listed today pursuant to orders I made at the first court date on 31 October 2006, which the applicant attended and had the assistance of a Mandarin interpreter. I gave him opportunity to file the amended application and written submissions after receiving a referral for free legal advice and a bundle of relevant documents. I informed the applicant on that occasion that his application might be dismissed today if it did not raise an arguable case.
For the reasons I have given above, I do not consider that it does. I also consider that it is appropriate for me to exercise my power to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 29 January 2007
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