SZLBP v Minister for Immigration

[2007] FMCA 1731

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLBP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1731

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong practice – did not attend Tribunal hearing – no arguable case – application dismissed at show-cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r. 44.12(1)(a)

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Applicant: SZLBP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2200 of 2007

Judgment of: Smith FM

Hearing date: 9 October 2007

Delivered at: Sydney

Delivered on: 9 October 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms A Mansour

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed under Rule 44.12(1)(a) 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 $2,300. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2200 of 2007

SZLBP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant has applied for a protection visa on the ground that he fears persecution if he returns to the People’s Republic of China. His visa application attached a brief statement, in which he claimed that he had been a Falun Gong practitioner, and was fired by his factory in 2000 because he did not wish to stop practising Falun Gong. He also claimed that on an unspecified date he was arrested and sent to gaol for three months. No details of his practice of Falun Gong and of his persecution were provided, nor was any supporting evidence given to the Department of Immigration or to the Refugee Review Tribunal.

2. A delegate of the Minister refused the application on 24 February 2007, and the Tribunal affirmed that decision in a decision handed down on 12 June 2007.

3. The applicant, both when bringing his application for a visa and his review application, did not appoint a migration agent or authorised recipient for correspondence. He asked the Tribunal to send letters to him at an address in Elizabeth Street, Surry Hills.

4. The Tribunal sent to that address an invitation to the applicant to appear at a hearing on 23 May 2007. The letter was dated and posted on 4 April 2007, and it clearly complied with the requirements of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth). A copy of the invitation was later sent to another address, of which the applicant notified the Tribunal after the letter had been sent. However, there was no appearance by the applicant at the hearing.

5. The Tribunal said in its statement of reasons that the refugee claims before the Tribunal were lacking in essential detail. It said that the Tribunal had been unable to question the applicant further as to the veracity of his claims, “leaving his claims unclarified and the Tribunal’s questions unanswered”. On the evidence before it, the Tribunal was not satisfied that the applicant had suffered persecution in the past, nor that he had 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 returned to China in the foreseeable future.

6. The applicant now asks the Court to set aside the Tribunal’s decision and to order it to reconsider his refugee claims. His application was listed today to consider whether it raises an arguable case for the relief claimed. The applicant has been given an opportunity to amend the grounds of his application and to file further evidence, after receiving a bundle of relevant documents and referral for free legal advice.

7. He has not filed any documents other than his original application. It contains unparticularised allegations of error of law, and that the member purporting to constitute the Tribunal did not lawfully constitute the Tribunal. (It is possible that the second ground was in fact a misapplication of a precedent which seeks an order for the reconstitution of the Tribunal upon a remitter, rather than challenging its previous constitution). Neither of these contentions appears to have any arguable support in the material before me.

8. The applicant today had no arguments to present to show jurisdictional error. For myself, I am unable to identify any arguable jurisdictional error arising from the procedures or reasoning of the Tribunal.

9. I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under rule 44.12(1)(a).

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  18 October 2007