SZJMK v Minister for Immigration
[2007] FMCA 67
•16 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJMK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 67 |
| MIGRATION – 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
NBBL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1045
VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407
| Applicant: | SZJMK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2881 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 A Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
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 $1,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2881 of 2006
| SZJMK |
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 9 October 2006 seeking 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 30 March 2006 refusing to grant a protection visa to the applicant.
The application was returnable before me at a first court date on 31 October 2006. The applicant attended and was assisted by a Mandarin interpreter. I explained the nature of the proceedings to the applicant and he was given an information sheet. I made orders allowing him to file an amended application with any evidence by 15 December 2006, after receiving a referral for free legal advice and a bundle of relevant documents. I warned the applicant that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has received advice, and has filed an amended application which I shall consider below.
The applicant arrived in Australia in February 2006, and lodged an application for a protection visa on 17 March 2006. His application did not disclose any person who had assisted him. It attached a brief typed statement in English explaining why he sought protection in Australia against return to the People’s Republic of China.
He claimed that he become a Falun Gong member in 1998. He said:
After Falun Gong was banned in 1999, I became a senior member and spent a lot of time for Falun Gong. I became working part‑time as self‑employer from then on. In 2003, when we were organizing Falun Gong activities at a friend’s home, police came to detain all of us. We were detained at a nearby centre for ten days. During the ten days, we were constantly questioned. We were not allowed to sleep and had limited food. They physically tortured us so as to make us confessed. Ten days later, I was released after relative’s signing declaration for me.
He claimed then to have gone into hiding, and “early this year, I used my trip to come to Australia for protection”.
Both the visa application and the appeal to the Tribunal gave a residential address at Sans Souci, and requested that correspondence should be sent to a postal address in Pitt Street, Sydney.
The Tribunal sent to that address a letter dated 4 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 applicant was invited to attend a hearing on 21 August 2006, and was informed that if he did not attend the Tribunal could make a decision without further notice.
The Tribunal received “By Hand” on 11 July 2006 a “Response to Hearing Invitation Form” which appears to be signed by the applicant indicating that he intended to attend. However, the applicant did not attend, and the Tribunal proceeded to decide the matter pursuant to its powers under s.426A(1) of the Act.
In its statement of reasons, the Tribunal referred to the absence of details and any supporting evidence accompanying the applicant’s refugee claims. The Tribunal said that it found his claim to have been subject to persecution “lacks sufficient detail to establish the relevant facts. … Due to the lack of evidence, the Tribunal is not satisfied that the applicant was or is a practising adherent of Falun Gong”.
It said:
The Tribunal is unable to be satisfied that the applicant suffered persecution in China for his religious beliefs.
The Tribunal is not satisfied that the applicant is a follower of Falun Gong; that he suffered persecution in China because of his religion, or that upon his return to China there is a real chance that he will face persecution for reasons of his following Falun Gong or for any other Convention related reason.
I have considered the procedures followed by the Tribunal and its reasoning, and I am unable to see any arguable ground of jurisdictional error affecting its decision.
The applicant has not filed any evidence to explain his absence from the Tribunal’s hearing. Today, from the Bar table, he suggested that he did not get the Tribunal’s letter. However, even assuming that he could establish that as a matter of fact, this would not provide any arguable jurisdictional error since it is well‑established that in circumstances such as the present the Tribunal is entitled to rely upon the proper despatch of its invitation to the applicant’s nominated address for correspondence (see VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14]‑[15], and NBBL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1045).
The applicant’s application and his amended application follow precedents which contain unparticularised allegations of bias, failure to consider claims, breach of s.424A, and other general criticisms of the Tribunal’s decision. In the absence of particulars, I am unable to find any arguable substance in any of the contentions in these documents.
The applicant today was unable to identify any arguable error in the Tribunal’s decision or procedures, but made a series of submissions which essentially sought to protract the proceedings further. I rejected his application for an adjournment, since I consider he has had sufficient opportunity to prepare his case in this Court.
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 r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 30 January 2007
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