SZLCP v Minister for Immigration

[2007] FMCA 1775

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLCP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1775

MIGRATION – Chinese applicant claiming persecution for Falun Gong activities – did not attend Tribunal hearing – no arguable case – application dismissed at show‑cause hearing.

Migration Act 1958 (Cth), ss.425, 426A
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant: SZLCP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2307 of 2007

Judgment of: Smith FM

Hearing date: 16 October 2007

Delivered at: Sydney

Delivered on: 16 October 2007

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms T Quinn

Solicitors for the Respondents: DLA Phillips Fox

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 $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2307 of 2007

SZLCP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in February 2007, and applied for a protection visa on the ground that he feared persecution if he returned to the People’s Republic of China. He included a brief statement in his application, saying that he had joined Falun Gong in 1996, and had actively taken part “in all kinds of Falun Gong activities” until 2007.  He said:

   Recently the Chinese authorities began investigating my involvement in Falun Gong in China.  I became fully aware of the consequences of the authorities’ investigation and decided to flee overseas from China to avoid persecution.

2. The applicant never gave details of his claims, nor any supporting evidence, to either the Department of Immigration or to the Refugee Review Tribunal. A delegate refused the application on 24 February 2007, and this decision was affirmed by a decision of the Tribunal, handed down on 21 June 2007.

3. The applicant now asks the Court to set aside the Tribunal’s decision, and to order it to reconsider his refugee claim. His application has been listed today to consider whether it raises an arguable case for the making of these orders.

4. 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 a referral for free legal advice. However, he has not filed any evidence, nor an amended application, to support the central ground of his original application, which contends that the Tribunal failed to comply with its obligation under s.425(1) to invite the applicant to attend a hearing.

5. I am not satisfied that there is any substance raised to support that complaint.

6. The applicant, both when making his original application and in his application to the Tribunal, did not appoint a migration agent or person to receive correspondence. His application to the Tribunal requested the Tribunal to send correspondence about his application to him at an address in Campsie.

7. The file before me suggests that the Tribunal did send an invitation to the applicant to that address in a letter dated 24 April 2007, which met all requirements of the Migration Act and Regulations. It appointed a hearing on the 28 May 2007 at 10.30am. The applicant was asked to return a ‘Response to Hearing Invitation’ form, but did not do that. The Tribunal’s records indicate that the procedures were checked, and that there was no attendance at the appointed time.

8. The applicant today made unsworn statements about this, but did so in a frank manner. He said that he was aware of the invitation to the hearing, and wished to attend, but that he was running late after looking for his file at home. He said that when he arrived at the Tribunal, he found his hearing was over. He did not give any account of conversations with Tribunal officers, and told me that he had not asked for a rescheduled hearing. Nothing he said indicated to me that he has evidence which might establish a failure by the Tribunal to consider rescheduling a hearing, vitiating its decision to affirm the delegate’s decision.

9. According to the Tribunal’s statement of reasons, it decided to proceed under s.426A on the basis of his non-attendance at the hearing. Although its statement of reasons contains an erroneous paragraph about the circumstances of the hearing invitation, apparently copied from a different case, I am satisfied that its statement of reasons properly identified and addressed the applicant’s claims.

10. The Tribunal found that it was not satisfied, based on the evidence before it, that his claims were true, and was not satisfied that he had suffered persecution in the past, or that he had a well founded fear of persecution for a Convention reason if he returned to China in the foreseeable future.

11. Considering the evidence before me, I am not satisfied that the Tribunal’s decision shows reasoning which might be affected by jurisdictional error. I am also not satisfied on the material, and on what the applicant has said to me today, that he has any arguable case to establish that the Tribunal failed to comply with obligations under s.425 of the Migration Act, or that its procedures in any other way were affected by jurisdictional error.

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

13. I note that the applicant appeared sincere in his request to the Court to allow him a second opportunity to present his refugee claims to the Tribunal. He also indicated that he had further evidence from overseas which he wished to show the Tribunal. I have explained to him that it is possible for applications to be made to the Minister for discretionary permission to re-present his refugee claims. However, for the reasons I have indicated, I do not consider he has an arguable case for obtaining orders from the Court to give him that opportunity.

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

Associate:  Michael Abood

Date:  23 October 2007