SZKQO v Minister for Immigration

[2007] FMCA 1275

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKQO v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1275

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong practice – did not attend hearing – no arguable case – application for reinstatement refused.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a)
Migration Act 1958 (Cth), ss.426A(1), 476

Applicant: SZKQO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1555 of 2007

Judgment of: Smith FM

Hearing date: 24 July 2007

Delivered at: Sydney

Delivered on: 24 July 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms G Broderick

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The applicant’s application under r.16.05(2)(a) to set aside orders made on 12 June 2007 is refused.

2. The applicant must pay the first respondent’s costs in the sum of $600. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1555 of 2007

SZKQO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The substantive application in this proceeding is an application under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) for orders by way of judicial review in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 April 2007 and handed down on 26 April 2007. The Tribunal affirmed a decision of a delegate made on 16 December 2006, refusing to grant a protection visa to the applicant.

2. The application to the Court was made returnable at a first court date before me on 12 June 2007. There was no attendance at the time listed at 9.30 am, nor before I completed my list and commenced another list at 10.15 am, and I therefore dismissed the application under r.13.03A(c) due to the applicant’s absence from a hearing. This is an order which I would not normally make at a first court date, but in the present case the application appeared to be wholly without merit, for reasons which will appear below.

3. The applicant on 2 July 2007 filed an application, in effect, seeking an order to set aside my dismissal of his principal application.  It is supported by an affidavit, which claims that he was wrongly directed in relation to finding the Court, and arrived at the Court “too late for my hearing”.  This appears to be confirmed by a note on the Court’s file suggesting that the applicant may have arrived at Court between 10.15 am and 10.20 am.  The applicant therefore has shown a reason for being absent, which would cause me to reinstate his application if it had any arguable merit.  However, in my opinion it is manifestly hopeless, and it would be futile for me to reinstate his application.  

4. The applicant arrived in Australia in November 2006, and his application for a protection visa was lodged on 11 December 2006 by a registered Migration Agent, Mr Songtao Lu.  The application requested that correspondence should be sent to the agent. 

5. The application attached a statement purporting to explain why the applicant sought protection in Australia against return to the People’s Republic of China.  It made vague claims that the applicant had become a practitioner of Falun Gong in 1998, and had been dismissed from his work in December 1999 because of his practice of Falun Gong.  It did not narrate the circumstances of that event, nor of any subsequent hardship suffered in China as a result of practicing Falun Gong in the subsequent years.  The visa application showed that the applicant had travelled to Australia from China on his own passport.  The delegate refused the application on the ground of its vagueness and the fact that he had travelled unhindered. 

6. The application for review by the Tribunal was lodged on 16 January 2007 by Mr Lu as the applicant’s authorised recipient, and it requested that all correspondence in connection with the review should be sent to Mr Lu at his post office box in the Haymarket.  Correspondence was sent to that address, including an invitation to the applicant to attend a hearing on 26 March 2007.  That invitation was posted on 1 February 2007, addressed to the authorised recipient.  It allowed more than the prescribed notice of the hearing, and was in the usual form, informing the applicant that the Tribunal was unable to make a decision in his favour on the information before it alone. 

7. The Tribunal received a completed “Response to Hearing Invitation” form which has a signature on it, which the applicant today acknowledged was his. It indicated that he did wish to attend a hearing. However, there was no appearance at the hearing and no contact was made to the Tribunal to explain his absence. The Tribunal proceeded to make a decision exercising its power to do so under s.426A(1) of the Migration Act.

8. In its statement of reasons, the Tribunal pointed to the deficiencies in the claims presented with the protection visa application, and concluded:  

   … the Tribunal is not satisfied on the evidence before it that the applicant is or ever was a Falun Gong practitioner, or would practice if he returned to China.  Likewise, the Tribunal is not satisfied on the evidence before it that there is a real chance that the applicant will be persecuted for reasons of his real or imputed adherence to Falun Gong if he returns to China now or in the reasonably foreseeable future, whether that claim is regarded as falling under the Convention ground of religion, membership of a particular social group or political opinion. 

9. Considering the material now before the Court, I can see no arguable basis to show jurisdictional error affecting the Tribunal’s decision. 

10. The grounds in the application filed in the Court are insufficient to do this.  They assert without any particulars: 

    1.Jurisdictional error has been made.  RRT ignored my evidences. 

    2.Procedural Fairness has been denied.  I am Falun Gong practitioner.  I fear to go back. 

11. The applicant today was unable to point to any possible basis for arguing that the Tribunal’s decision was legally invalid.  He seemed to admit that he was aware of the hearing invitation and had decided not to attend, but complained that his agent had not sufficiently explained the Tribunal’s correspondence to him.  He also suggested that the agent had asked him to sign a document which he did not understand, but this was not explained and is unsupported by any sworn evidence. 

12. He requested that the Court give him a further opportunity to present his claims to the Tribunal.  However, as I have explained to him, the Court would not have that power, absent any legal defects in the procedures followed by the Tribunal. 

13. For the above reasons I consider it would be futile to reinstate the application, and I therefore refuse the application before me today. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  10 August 2007