SZKAQ v Minister for Immigration
[2007] FMCA 629
•4 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKAQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 629 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution as Christian – did not attend Tribunal hearing – no arguable case for judicial review – application dismissed at show‑cause hearing. |
Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.425, 425A, 426A(1), 476
| Applicant: | SZKAQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG124 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 4 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms S Hanstein |
| 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 $1,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG124 of 2007
| SZKAQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 15 January 2007, 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”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 November 2006 and handed down on 12 December 2006. The Tribunal affirmed a decision of a delegate made on 1 August 2006, refusing to grant a protection visa to the applicant.
The application was returnable before me at a first court date on 7 February 2007. The applicant attended, and had the assistance of a Cantonese interpreter. The nature of the proceeding was explained to him by me and in an information sheet. I gave him an opportunity to file an amended application and evidence after receiving a bundle of relevant documents and a referral for free legal advice. He was warned that his application might be dismissed today if it did not raise an arguable case for relief.
The applicant was sent a referral to a barrister on 12 February 2007, but the Court is informed by the barrister that there was no response to the barrister’s attempts to arrange a conference. The applicant has not filed an amended application, additional evidence, nor a written submission.
The applicant arrived in Australia in June 2006, and lodged his application for a protection visa on 11 July 2006. His application did not identify the person who assisted him. It gave a residential address in Auburn, and a current postal address in Pitt Street, Sydney.
A brief statement attached to the application explained why the applicant sought protection in Australia against return to the country of his nationality, the Peoples’ Republic of China. He said: “before I came to Australia, I would be a Christian and an active member of a house church in my town”. He claimed that between 1995 and 2003 he and his wife attended church, and that he was baptised in 1998. He said:
In May 2003, while we were congregating at one of church members’ home, the local police knocked on our door and raided us. We were denounced to have conducted illegal religious activities and warned to be dismissed. Since then it has become impossible to attend our church again.
The applicant did not explain what had happened at that time and before he came to Australia, and gave no more details of his claims. He provided neither the Department nor the Tribunal with any corroboration of his claim to be a Christian at risk of persecution.
A delegate refused the application on the basis that he was not satisfied as to the overall credibility of the applicant’s claims, and gave good reasons for that doubt.
The applicant’s application to the Tribunal was lodged on 31 August 2006. It did not identify an adviser or authorised recipient for correspondence, but requested that all correspondence should be sent to the applicant at the previously given Pitt Street address. It also gave his previous residential address in Auburn.
The Tribunal sent an acknowledgement of the application to the Pitt Street address, but this was returned on 20 September 2006 with the marking “left address/unknown”.
On the previous day, the Tribunal had sent to the same address an invitation to attend a hearing on 23 October 2006. The invitation letter informed 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 to present oral evidence and arguments, and to present witnesses. It is clear, in my opinion, that the invitation letter was properly sent in accordance with the requirements on the Tribunal under ss.425 and 425A of the Migration Act and the relevant regulations. As a result, the applicant was deemed to have received the invitation, and the Tribunal acquired the power under s.426A(1) to dismiss the application without taking further action if the applicant did not attend at the appointed hearing.
After the Tribunal became aware that the nominated postal address might not be effective, it sent a copy of the hearing invitation to the applicant at his residential address, although it was not required to do that. This was done on either the 25th or 29th September 2006. However, no response to either of the invitations was received, and there was no attendance at the appointed hearing. The Tribunal therefore proceeded to decide the case.
Not unexpectedly, the Tribunal formed the view that “the applicant’s claims are vague and lack detail”. It said:
The applicant’s unsubstantiated assertions contain insufficient particulars as to the detail of his claims to enable the Tribunal to establish the relevant facts.
The Tribunal was not satisfied, on the evidence before it, that he was a Christian or that he was unsafe or in danger in China. It was not satisfied that he was unable to practise his religion in China. It was not satisfied that there was a real chance that he would be persecuted by reason of his real or imputed adherence to Christianity if he returned to China now or in the reasonably foreseeable future.
I have read the reasons of the Tribunal, and have considered its procedures, and can see no arguable ground of jurisdictional error affecting its decision.
The applicant has not presented any evidence to explain his absence from the hearing. Curiously, the Tribunal’s statement of reasons was sent only to the nominated Pitt Street postal address, but appears to have come to the applicant’s attention since he applied to this Court within the period required. He gave confused statements to the Court when he attended today as to why he had not attended. However, whatever that reason was, and even if the applicant had no actual notice of the appointed hearing, the law is clear. The Tribunal had power, which it exercised, to proceed in his absence under s.426A(1).
I therefore do not accept to be arguable, the sole ground in the application filed in the Court:
The Tribunal committed jurisdictional error of law in that it further failed to comply with S425 of the Migration Act 1958.
I am not satisfied that his application raises 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 26 April 2007
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