SZKFB v Minister for Immigration
[2007] FMCA 738
•8 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 738 |
| MIGRATION – RRT decision – Chinese applicant claiming political persecution – 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
SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
| Applicant: | SZKFB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG488 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 8 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms M Jolley |
| Solicitors for the Respondents: | Sparke Helmore |
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 $2,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG488 of 2007
| SZKFB |
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 14 February 2007, seeking 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 respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 December 2006 and handed down on 16 January 2007. The Tribunal affirmed a decision of a delegate made on 6 September 2006, refusing to grant a protection visa to the applicant.
The application was returnable before me at a first court date on 6 March 2007. The applicant appeared and had the assistance of a Cantonese interpreter. The nature of the proceeding was explained to him by me and in an information sheet, and the applicant was given an opportunity to file an amended application and evidence after receiving a bundle of relevant documents and a referral for free legal advice. I warned the applicant that his application might be dismissed today if I were not satisfied that he raised an arguable case for the relief claimed.
The applicant was sent a referral for advice on 8 March 2007. He has not filed an amended application, and I shall consider the grounds in his application below.
The applicant arrived in Australia in May 2006 and an application for a protection visa was lodged on 4 July 2006. It did not disclose any assistance being given, and attached a typed statement explaining his reasons for claiming protection in Australia against return to the People’s Republic of China.
The applicant claimed that in 2004 his local government acquired his house for inadequate compensation. He “protested” before the government office with hundreds of other residents, and “the protest led to a fighting between the police and local residents. The police finally arrested some of us and dismissed the others. I was almost arrested but I successfully escaped”. He said: “after I escaping from arresting, I went to Australia under the help of one of my best friends in Guangzhou”.
Details of these events were not provided, and no supporting evidence was given to the Department nor on appeal to the Tribunal. The delegate rejected the claims as “not credible as his claims lack sufficient detail and are unsubstantiated by any prima facie evidence”.
The applicant’s appeal to the Refugee Review Tribunal did not appoint an advisor or authorised recipient for correspondence, but requested that correspondence should be sent to an address in Elizabeth Street, Surry Hills. The Tribunal sent to that address a letter dated 23 October 2006, inviting the applicant to attend a hearing on 13 December 2006. The 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 in this information alone”. The applicant was asked to return a response to the hearing invitation.
No response was received, and there was no attendance at the appointed hearing. In its statement of reasons, the Tribunal indicated that it proceeded pursuant to s.426A(1) to “make its decision on the review without taking any further action to enable the applicant to appear before it”.
I can see no arguable basis upon which the Tribunal’s procedural decision was affected by any legal error. The applicant has not in any document filed in the Court or statement to the Court sought to explain his absence from the hearing. However, it is clear on established authorities that, even if he did not receive actual notice of the invitation, the Tribunal had the power to proceed in the manner in which it did.
The Tribunal’s reasons for affirming the delegate’s decision were stated briefly:
The claims before the Tribunal are lacking in essential detail. While the applicant referred to a lack of respect for human rights by the government and a fear that he would be targeted by the police if he claimed reasonable compensation, there is no detail in his application in relation to anything that has happened to him since July 2004. The applicant referred to protests in July 2004 however he has not claimed that police continued to investigate or pursue him for his part in the protests from 2004 until he left China. There is insufficient detail in relation to whether the applicant’s claimed fear is for reasons of race, religion, nationality, membership of a particular social group or political opinion. The applicant was invited to appear before the Tribunal but did not do so. As a consequence, the Tribunal has been unable to question him further leaving his claims unclarified and the Tribunal’s questions unanswered. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well‑founded fear of persecution for reasons of race, religion, nationality, or because of his membership of a particular social group or political opinion if he returns to China in the foreseeable future.
I can see no arguable jurisdictional error affecting the decision of the Tribunal.
The application filed in this Court has two grounds:
1.The RRT decision was affected by jurisdictional error in that the RRT acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning.
2.The RRT failed to invite the applicant to comment on relevant information, as required by the S424A of the Migration Act.
Particulars: The Tribunal questioned the applicant has not claimed that the police continued to investigate or pursue him for his part in the protests from 2004 until he left China. The information is relevant to the application and the Tribunal failed to put this information before the applicant and invite him to comment on it.
There is no substance whatsoever in the suggestion that the Tribunal “acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning”.
Nor is there any prospect of success in an argument that the Tribunal based its decision on information which was required to be put to the applicant under s.424A. The Tribunal’s reasoning, which referred to the contents of the protection visa application, did not use information from that document as a reason for affirming the delegate’s decision, but explained an assessment of the visa application which identified its inadequacies in the absence of the applicant’s attendance at a hearing (compare Allsop J in SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 and in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195).
The applicant had no submissions to make to me today to show an arguable case. He sought further time to stay in Australia, but I have explained to him that it is not the function of the Court to give him permission to stay in Australia.
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 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: 22 May 2007
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