SZLDI v Minister for Immigration
[2007] FMCA 1742
•15 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLDI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1742 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution as a Falun Gong practitioner – applicant did not attend RRT hearing – no jurisdictional error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.36, 424A, 425, 426A, 474 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZLDI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2375 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 October 2007 |
| Date of last submission: | 15 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Cramer |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2375 of 2007
| SZLDI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of the People's Republic of China. He has brought an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant him a Protection (Class XA) visa. The decision was handed down on 10th July 2007.
The Applicant seeks an order that the Refugee Review Tribunal should provide him with a new hearing. He claims that he could not attend the Tribunal hearing because he lost his passport and could not get his registered letter from the Tribunal. When he contacted the Tribunal he was told that they had already made a decision.
The Applicant claims to be an active Falun Gong practitioner and fears that he will be sentenced to imprisonment if he returns to China.
Background
The Applicant arrived in Australia on 7th February 2007. He applied for a Protection (Class XA) visa on 14th February 2007 claiming a fear of persecution on the basis that he is a practitioner of Falun Gong and faced prosecution for that reason. His application for a protection visa was refused on 24th February 2007.
Application for Review by the Refugee Review Tribunal
The Applicant then applied to the Refugee Review Tribunal for a review of the decision to refuse him a visa. The Applicant lodged his application for review at the Sydney Registry of the Refugee Review Tribunal on 2nd April 2007. He did not lodge any other document with his application. In the application the Applicant gave his residential address and nominated that address as his mailing address. He did not provide any telephone number in his application, nor did he nominate any person as his adviser.
The Tribunal wrote to the Applicant at his nominated address for correspondence on 11th April 2007 advising him that it 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 Tribunal invited the Applicant to attend a hearing at 10:00am on 16th May 2007.
The Tribunal did not receive any response to the hearing invitation. The Applicant had not provided any telephone number upon which he could be contacted. He did not attend the Tribunal hearing on the scheduled date.
The Tribunal decided to use its power under s.426A of the Migration Act to make its decision on the review without taking any further action to allow the Applicant to appear before it. The Tribunal signed the decision record on 20th June 2007 and handed the decision down on 10th July 2007.
The Tribunal’s Findings and Reasons
The Tribunal affirmed the decision of the Minister's delegate not to grant the Applicant a protection visa. The Tribunal in its findings and reasons accepted that the Applicant was a citizen of the People's Republic of China on the basis of the copy of the Applicant's passport submitted with his application for a visa. The Tribunal stated that:
The Tribunal finds that the applicant has given only a brief outline of his claims and that they are lacking in crucial detail. The applicant stated that he started to practise Falun Gong after attending a Falun Gong meeting in 2004, but gave few details of the extent and nature of his practice.
The Applicant provided no new material to the Tribunal.
Given the scant details in the applicant's claims, the Tribunal is not satisfied that the applicant has been or is a practitioner of Falun Gong. The Tribunal is not satisfied that the applicant was involved in promoting Falun Gong.[1]
[1] See Court Book at page 58
The Tribunal was not satisfied on the evidence before it that the Applicant had suffered serious harm in China amounting to persecution for a Convention reason.
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and found that the Applicant did not satisfy the criterion set out in sub-section 36(2) of the Migration Act for a protection visa. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant filed an application at this Court on 1st August 2007 along with an affidavit. In the application the Applicant set out these grounds:
I am a Chinese citizen and I am a genuine Falun Gong member. I have been practising for years and I have been warned by my local security and company to be put in prison if I continue this activity.
I cannot stop practising Falun Gong since it has helped a lot with my health condition. I cannot go back to China since I am very scared to be sentenced.
I have been actively practising Falun Gong since I arrived in Australia. I believe that the Chinese government will still look for me if I return. My family told me not to go back since they came to my home twice and asked where I am about.
The Applicant asks for orders in these terms:
1. I disagree with immigration and RTA's decision since I'm a genuine Falun Gong member. They did not consider that I'll be in danger if I return.
2. RRT did not consider that I'm still actively practising in Australia and it will also bring me a big trouble if I return home.
3. I could not attend the RRT hearing due to loss of my passport and I could not get my registered letter from RRT. When I contacted RRT I was told that they already had a decision. I think RRT should provide me a hearing again.
The Applicant’s Submissions
The Applicant has not filed any written submissions, but attended Court and advised that he had recently changed his address. He also told the Court that his previous migration agent signed his application for a protection visa and his application to the Refugee Review Tribunal. He confirmed that he did not sign those documents.
The Applicant appeared unaware that he had applied for a protection visa, although was aware of refugee status. He was asked about his role in preparing the application for review to the Refugee Review Tribunal. He said, "I really do not know what was done." He said that he had come to the Court today because his agent had told him to, however, he has been unable to contact his agent since he filed his application for review at this Court on 1st August.
The Applicant showed a surprisingly vague idea of what it was that he was applying for and what steps had been taken. When asked why he was attending Court the Applicant said that he came because he was told to come.
The First Respondent’s Submissions
The solicitors for the First Respondent filed a written outline of submission. In the submission they note that the allegations in the application are not properly particularised and on its face the application appears to seek to challenge the merits of the Tribunal decision. I am referred to the decision of Minister for Immigration & Ethnic Affairs v Wu Shan Liang[2].
[2] (1996) 185 CLR 259 at 272
Mr Cramer submitted that the Tribunal clearly complied with the procedures for sending the letter inviting the Applicant to attend a hearing. He also submitted that there was nothing to suggest that the Tribunal was aware of any circumstances which renders its decision to proceed under s.426A(1) of the Act either improper or unfair. He further submitted that the Tribunal's conclusions were open to it for the reasons that it gives. There was nothing to indicate that any consideration that the Tribunal was required to take into account was overlooked and he submitted that the Tribunal considered the essential aspects of the Applicant's claims. In any event, it is for the Applicant to make out his claims, not the Tribunal.
The Tribunal did not send a s.424A letter to the Applicant, but it was not required to do so. The Tribunal's decision was not based on information falling within s.424A. The Tribunal's decision was based on its non-satisfaction as to the central elements of the Applicant's claims as a result of the lack of details provided by the Applicant. In those circumstances s.424A does not apply. Not being affirmatively satisfied that the criteria for the visa had been met, the Tribunal was required to affirm the delegate's decision. (See SJSB v Minister for Immigration & Multicultural & Indigenous Affairs[3]).
[3] [2004] FCAFC 225
Conclusions
The Applicant has not shown any jurisdictional error on the part of the Tribunal. It may well be that he did not sign his application for a visa or his application for review by the Refugee Review Tribunal. The Applicant says that his former migration agent signed those documents. There is of course no evidence of that and there is certainly no evidence that the Tribunal was in any way aware that there was any irregularity about the Applicant's application for a protection visa or his application for review. The Tribunal did what it was required to do, which was to invite the Applicant to a hearing as provided by s.425 of the Act.
The fact that the Applicant did not attend the hearing cannot in any way be brought home to any error on the part of the Tribunal. The Tribunal gave the Applicant adequate notice and clearly was prepared to hold a hearing if the Applicant had arrived.
The Tribunal did not make its decision immediately. The Applicant was invited to a hearing on 16th May, but the Tribunal did not sign the decision until 20th June 2007. The decision was handed down on
10th July. If the Applicant had any documentary evidence to submit there was ample time to do so before the decision was signed or before the decision was handed down.
The Applicant's claim appears to be not that the Tribunal did not write to him, but that having lost his passport, which was his identification, he did not have the ability to collect the registered letter from the post office. If that is the case, that is clearly not in any way due to an error by the Refugee Review Tribunal.
I am mindful of the fact that the Applicant is not legally represented. I have read through the decision in an effort to ascertain whether any arguable case for jurisdictional error arises. As is so often the case where applicants do not attend the Tribunal hearing, not only is the application unsuccessful, but there is no suggestion of jurisdictional error. This is one such case.
I am satisfied that no jurisdictional error appears and accordingly, the decision is a privative clause decision as defined by s.474 of the Migration Act. As a privative clause decision it is final and conclusive and accordingly there are no grounds for making orders in the nature of certiorari or mandamus. The application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 17 October 2007
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