SZKDE v Minister for Immigration - [2007] FMCA 494

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKDE v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 494

MIGRATION –Refugee Review Tribunal – Practice and procedure – whether application should be reinstated – no appearance at previous hearing

Federal Magistrates Court Rules 2001 r.16.05; 13.03A(c)
Migration Act 1958 (Cth) s.426A

Applicant:

SZKDE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG341of 2007

Judgment of:

Emmett FM

Hearing date:

2 April 2007

Date of last submission:

2 April 2007

Delivered at:

Sydney

Delivered on:

2 April 2007

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent:

Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG341 of 2003

SZKDE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks an order pursuant to r.16.05 of the Federal Magistrates Court Rules 2001 that the order of this Court made on 1 March 2007 dismissing the applicant's proceeding, pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 by reason of the failure of the applicant to appear at Court, be set aside.
The applicant filed an application for reinstatement on 13 March 2007 and an affidavit sworn by him on 2 March 2007. The affidavit is in the following terms:
“1. I have traffic congestion and cannot turn up on time. Please arrange another Date & Time for further processing of application.
2. The place I lived in very far away from the court.”
The applicant was cross-examined on his explanation for delay which essentially amounted to evidence that he left Roselands at about 7 am on 1 March 2007 and arrived at Court at 9.45 am. There is no evidence of any transport delays or problems. It is the applicant's responsibility to ensure that he has informed himself as to where he is required to be and at what time. I do not accept that, in the ordinary course, it takes two hours and 45 minutes by public transport to get from Roselands to this Court. However, even if I were to accept that explanation, I have regard to the utility in making any such reinstatement application.
I note that the applicant claims to be a citizen of China and arrived in Australia on 23 May 2006. On 6 July 2006, the applicant lodged an application for a protection visa and provided an undated statement in support of that application.
At the heart of the applicant's application for a protection visa is a claim that he fears persecution by reason of being a Falun Gong practitioner in China. The applicant claimed that in May 2005 he was questioned by local security people about practising Falun Gong. The applicant claimed that in January 2006 he was warned again by his local security and his home was checked. The applicant claimed that he was told he would lose his job and would be arrested if he continued to practise Falun Gong.
The applicant claimed he bribed a local government official to obtain a passport and came to Australia and that his family asked a friend to tell him not to return because they believed he would be put in gaol.
On 14 September 2006, a delegate of the first respondent refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations.
On 10 October 2006, the applicant lodged an application for review of that decision with the Refugee Review Tribunal (“the Tribunal”). The applicant made no new claims and did not submit any further material or information with his review application.
On 19 October 2006, the Tribunal wrote to the applicant inviting him to attend a hearing and to give oral evidence and present arguments. That hearing was to take place on 22 November 2006. That letter informed the applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter also invited the applicant to send any new documents or written arguments that he wished the Tribunal to consider.
On 13 November 2006, the Tribunal received a written request from the applicant to postpone the hearing. On 21 November 2006, the Tribunal received a medical certificate, covering the period from

21 November 2006 to 7 December 2006, in respect of the applicant.
On 21 November 2006, the Tribunal wrote to the applicant again postponing the 22 November 2006 hearing and inviting the applicant to come to a hearing on 8 December 2006. The letter informed the applicant that, if the applicant requested a postponement of the hearing due to medical reasons, he would be required to provide a detailed medical certificate explaining reasons why he was unable to attend the hearing. That letter was sent to the applicant at the address identified in the earlier request for a postponement, dated 13 November 2006, as his new address.
On 7 December 2006, The Tribunal received from the applicant a further copy of a medical certificate previously provided on

21 November 2006, relating to the period of 21 November 2006 to

7 December 2006.
In its decision to proceed with its review on 8 December 2006, the Tribunal noted the claims made by the applicant in support of his protection visa application and noted the above history. The Tribunal also noted that there was no further information attached to the certificate received by it on 7 December 2006. The Tribunal noted that the applicant had not responded to the Tribunal's invitation and did not appear before it on the day and at the time and place at which he was scheduled to appear. Accordingly, the Tribunal proceeded to exercise its discretion, pursuant to s.426A of the Migration Act 1958 (Cth), to make its decision on the review without taking any further action to enable the applicant to appear before it.
The applicant has not asserted that there was any error by the Tribunal in its decision to proceed to make a decision on the review without taking any further action to enable the applicant to appear before it and certainly no error is apparent on the face of the review process, as disclosed in the Court book, being exhibit 1R in the proceeding.
The Tribunal found that the applicant's claims in his application were brief and lacked detail in relation to his involvement with Falun Gong. In particular, the Tribunal noted the applicant's claims to have been of interest to authorities were in “lacking in crucial details”.
The Tribunal noted that the applicant had been invited to attend the hearing and to provide further evidence or information, which the applicant had not done. The Tribunal also noted that the applicant had not made any further contact with the Tribunal to seek a postponement of the hearing. The Tribunal concluded that, given the lack of details in the applicant's claims and the lack of opportunity to explore the details of the claims or their veracity, the Tribunal is not satisfied that the applicant's claims were genuine.
The Tribunal concluded that, having considered the evidence as a whole, it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees' Convention, as amended by the Refugees' Protocol.
On 5 February 2007 the applicant filed an application in this Court relying on the following grounds.
“1. Genuine fear of the persecution by Chinese government if the applicant goes back because of his practice of Falun gong.
2. The basis of DIMIA decision that “that ordinary practitioners of Falungong are unlikely to be targeted for serious mistreatment from authorities if they engage in private practice” cannot stand in accordance to the fact that practice of Falungong is illegal in China and any activities related to the belief, practice and promotion of Falungong will be considered as unlawful and anti-government. Chinese authorities and its police force are ordered to suppress these activities by all means. Therefore, it is irrelevant to the question that whether the applicant would face potential mistreatment of government, if he would practice Falungong in public or in private.
3. The local authorities already obtain the knowledge that the applicant is a Falungong practitioner and his belief and behaviours already constitute illegal acts according to the point of view of Chinese government, therefore, even he can practice Falungong in private, he would be considered as a political criminal by Chinese authorities.
4. As above, the applicant is unsatisfied with the decisions made by the first and second respondents and sincerely expects the federal court to review previous judicial decisions and restore the justice.”
None of the grounds specified identify an error capable of judicial review by this Court. The decision of the Tribunal appears to be one made in accordance with the legislative regime.
The applicant appeared unrepresented this morning, although had the assistance of an interpreter. The applicant made no meaningful submission in respect of any error in the Tribunal's decision, other than to say that he did not have a good knowledge of procedure.
The Tribunal's conclusions would appear to be open to it on the material before it. The applicant has not satisfied this Court that his application has any reasonable prospects of success or, indeed, any prospects of success. In the circumstances, there would be no utility in granting the applicant's application for reinstatement.
Accordingly, the application filed by the applicant on 13 March 2007 is dismissed.

RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty-wo (22) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 16 April 2007