SZJTH v Minister for Immigration

[2007] FMCA 1089

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJTH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1089

MIGRATION – RRT decision – Chinese applicant claiming persecution as member of underground Church – did not attend hearing – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12
Migration Act 1958 (Cth), ss.425, 425(1), 426A(1), 476

VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant: SZJTH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3487 of 2006

Judgment of: Smith FM

Hearing date: 2 July 2007

Delivered at: Sydney

Delivered on: 2 July 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms M Palmer

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed. 

2. The applicant must pay the first respondent’s costs in the sum of $2,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3487 of 2006

SZJTH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 24 November 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 29 September 2006 and handed down on 19 October 2006. The Tribunal affirmed a decision of a delegate made on 10 May 2006, refusing to grant a protection visa to the applicant.

2. The application to this Court was transferred into my docket after several listings before a Registrar.  The applicant has been given an opportunity to file an amended application, after receiving a bundle of relevant documents and a referral for free legal advice.  She has been sent advice by an experienced barrister. 

3. Her case was listed today under orders made by a Registrar on 27 April 2007.  The applicant attended before the Registrar with a Mandarin interpreter, and was warned that her application might be dismissed today if the Court was not satisfied that it raised an arguable case for the relief claimed. 

4. The applicant arrived in Australia in January 2006, and on 12 April 2006 lodged an application for a protection visa.  Her application did not identify any person assisting her, and attached a brief typed statement setting out her reasons for seeking protection in Australia against return to the People’s Republic of China. 

5. She claimed: “I was a pious Christian and a key member of an underground church in my town”.  She claimed to have been baptised in 1998, and said:  

   One day in October 2005, while I and some others were at church, a lot of police suddenly broke into.  We were denounced to have illegal religious gathering.  As a result, we were taken to the local Public Security Bureau, where we were interviewed and warned not to conduct any religious activities in the future. 

   Later our church was forced to be closed and we were prohibited from having any religious gatherings and activities.  But as a Christianity adherent, I find it impossible to live without my Christianity belief.  I told myself I must find a place where I could practise my Christianity freely. 

   In January 2006 I arrived in Australia.  Soon after my arrival I starting going to the local Christian church. 

   As a Christian of the underground church, if I return to China I will be subjected to persecution.  I wish to seek protection from Australia government.  

6. A delegate refused the application on the ground that the applicant’s claims were not detailed, and that she had not provided any documentary evidence of her involvement in Christianity in China or Australia. 

7. The applicant’s application to the Tribunal was filed on 12 June 2006.  It did not appoint an agent, and requested the Tribunal to send correspondence to the applicant at an address which was her residential address at Northmead. 

8. The Tribunal sent to that address a letter dated 28 June 2006.  The letter informed 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 a hearing on 14 August 2006.  The Tribunal’s file shows that no response to that letter was received, and there was no appearance at the hearing. 

9. The Tribunal posted a letter to the applicant on 14 August 2006, inviting her written comments on certain information she had given to the Department, including the dates indicating a delay in lodging her protection visa application. There was also no response to that letter, and the Tribunal then proceeded to make a decision pursuant to s.426A(1). That section allows the Tribunal to make a decision if an applicant fails to attend a hearing after being properly invited.

10. I am satisfied in the present case that the applicant does not have an argument with any prospects of success that the Tribunal did not have the power under s.426A(1).

11. In its “Findings and Reasons”, the Tribunal pointed to the deficiencies in the claims made with the protection visa application, and concluded: 

    It follows that from the extremely limited and unsupported claims made by the Applicant, the Tribunal finds that there is not a sufficient basis on which it can satisfy itself about her claims or be able to find that she has a well‑founded fear of serious harm amounting to persecution for a Convention reason because she is a Christian, a member of the underground church in China, or for any other Convention related reason.  Further, the Tribunal is satisfied that if the Applicant had a well‑founded fear of serious harm amounting to persecution for a Convention reason she would have applied for a protection visa on or shortly after her arrival in Australia, and not waited until 2 [sic: 12] April 2006, some 81 days later. 

    The Tribunal said that it was not satisfied that she was a person to whom Australia had protection obligations. 

12. I have considered the procedures and reasons of the Tribunal, and am unable to identify any jurisdictional error which is reasonably arguable by the applicant. 

13. The applicant has filed only her original application, and no amended application. The single ground in her application is that the Tribunal has failed to comply with s.425(1), being the Tribunal’s obligation to invite an applicant to attend a hearing. However, in my opinion, the Tribunal’s letter inviting her to a hearing did meet the requirements in relation to s.425, and I can see no argument that the Tribunal did not have power to proceed in her absence.

14. The applicant today maintained that she did not receive the Tribunal’s invitation letter. Sworn evidence to this effect has not been presented to the Court, and the circumstances have not been explained. However, assuming that this could be proved, it would not provide her with an arguable ground of jurisdictional error. It is now well‑established that the Tribunal has power to proceed under s.426A(1) even where an applicant has not received actual notice of a hearing (see VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14]‑[15]).

15. For the above reasons I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application today. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  11 July 2007