SZLIU v Minister for Immigration

[2007] FMCA 1922

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLIU v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1922

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of – the People’s Republic of China claiming fear of persecution for reasons that she is a Falun Gong practitioner – where applicant failed to attend Refugee Review Tribunal hearing – no jurisdictional error – privative clause decision.

Migration Act 1958 (Cth), ss.426A, 474(2)

NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528
SBBS V Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358

Applicant: SZLIU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2916 of 2007

Judgment of: Scarlett FM

Hearing date: 5 November 2007

Date of Last Submission: 5 November 2007

Delivered at: Sydney

Delivered on: 5 November 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Mr Leerdam

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $3,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2916 of 2007

SZLIU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

1. This is an application for review of a decision by the Refugee Review Tribunal affirming a decision of the delegate of the Minister not to grant the applicant a protection visa. The decision was signed on

   
   2^nd August 2007

   and handed down on 21^st August 2007.

2. The applicant is a citizen of The People's Republic of China, who arrived in Australia on 17^th March 2007, and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on

   
   11^th April 2007

   . On 7^th May a delegate of the Minister refused to grant the applicant a visa.

3. The applicant then applied to the Refugee Review Tribunal on

   
   12^th June 2007

   seeking a review of the delegate's decision.

   
   

   The applicant did not lodge any other documents with the application for review. On 13^th June 2007 the Tribunal acknowledged receipt of the applicant's application for review.

4. On 20^th June 2007 the Tribunal wrote to the applicant inviting her to appear before the Tribunal on 2^nd August 2007 at 9:30 am to give oral evidence and present arguments. On 4^th July 2007 the applicant responded to the invitation by fax advising that she wished to attend the hearing and that she required a Mandarin interpreter.

5. The applicant did not attend the hearing. The Tribunal noted that fact and noted in its decision what action the Tribunal took:

   The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 2 August 2007. 

   
   

   On 4 July 2007 the applicant advised the Tribunal by fax that she wanted to give oral evidence. However the applicant did not attend the hearing or contact the Tribunal to explain her failure to attend. In these circumstances and pursuant to s. 426A of the Act the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it[1].

   [1] See Court Book page 74

6. In the applicant's statement, which was included with her application to the Department of Immigration & Citizenship, she claims that she was a doctor in China. She also claims to be a Falun Gong practitioner who suffered persecution from the Chinese Government. The applicant also provided a letter dated 31^st January 2007 in relation to an invitation to visit Australia for consultation on dental technology.

7. The applicant claimed that as a doctor she has to behave herself in the eyes of the Chinese Government and claimed that she had to hide herself with regards to Falun Gong. The applicant stated that while she was having a meeting with members of Falun Gong in November 2006, the police came in to arrest her. She claimed that she was questioned at the police station for 48 hours and suffered mental and physical torture. She claimed with help from her uncle she was released and got a visa to come to Australia by paying a large amount of money. The applicant also claims that she cannot return to China as she would face severe persecution because of her activities in China and Australia.

8. The Tribunal accepted that the applicant is a citizen of the People's Republic of China. The Tribunal noted however that the applicant presented no evidence with her primary application to support her claim that she was a Falun Gong practitioner and that she feared persecution from the Chinese Government[2].

   [2] See Court Book page 75

9. The Tribunal did not accept the letter of invitation to Australia as a genuine document, because the telephone number of the business supposedly in Tasmania included the country code for Indonesia. However, the Tribunal went on to say:

   While this has no bearing on the substance of her present application it simply means that there is nothing at all before me to support her claims which are in any case brief and lacking detail a lack of which I also would have wished to remedy at hearing[3].

   [3] See Court Book pages 74 to 75

10. The Tribunal did not accept that the applicant was a Falun Gong practitioner or that she was arrested, interrogated and suffered physically and mentally during that interrogation. The Tribunal did not accept that there was a real chance that the applicant would suffer persecution on her return to China, and did not accept that she had a well founded fear of persecution in China, and affirmed the decision not to grant the applicant a protection (Class XA) visa.

11. In her amended application filed on 22^nd October 2007 the applicant seeks the following orders:

    (1)a writ of certiorari;

    (2)a writ of mandamus;

    (3)a writ of prohibition against first respondent Minister to prevent any action being taken in reliance upon the Tribunal decision;

    (4)costs; and

    (5)any further appropriate order.

12. The application contains three grounds which are as follows:

    1.I did not have an opportunity to explain my case.  My application was finalised without a hearing at RRT.

    2.The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with section 424A of the Migration Act 1958. I was not given an opportunity to comment upon the reasons.

    3.The Tribunal failed to refer to proper independent information in consideration of my application because of the officer's bias towards me.

13. The applicant, when asked why she did not attend the Tribunal hearing, said that she went to the Tribunal but maybe she was late. She said the Tribunal told her it was all finished. She told the Court that she sent the Tribunal a letter explaining her situation, but when asked if she had a copy of the letter told the Court that she had a copy but did not have it with her. In any event, the applicant told the Court that she did not think the letter was very important. I note that this claim was not referred to in the applicant's affidavit in support filed on

    
    

    21^st September 2007 and, in fact, has not been made public until today.

14. I note that the Tribunal signed its decision on 2^nd August, but did not hand the decision down until 21^st August. It would appear to me that there would have been time for any such letter to have been considered by the Tribunal and I note that there is no copy of any letter from the applicant to the Tribunal in the Court Book.

15. Mr Leerdam, for the Minister, put to me that the Tribunal's records show that the interpreter remained at the hearing from 9:30 am, being the start time of the hearing, until 10:12 am which, presumably, means that the applicant had not arrived before 10:12 am.

16. In my view, the applicant's first ground fails and it appears to me that the Tribunal correctly applied its power under s. 426A of the Migration Act.

17. The applicant's second ground claims a breach of s. 424A of the Migration Act. The fact is that the Tribunal dismissed the application because of a lack of corroborating evidence. The reference to the letter of invitation not being a genuine document is, to my mind, of no significance because the Tribunal member specifically referred to that by saying that that had no bearing on the substance of the application but simply meant that there was nothing before at all the Tribunal to support the applicant's claim which were brief and lacking in detail.

    
    

    I am not of the view that any breach of s. 424A of the Migration Act has been made out.

18. The applicant claimed that the Tribunal failed to refer to proper independent information in consideration of her application because of the officer's bias towards her. The claim has not been particularised and, in any event, it is not the role of the Refugee Review Tribunal to seek out information in support of the applicant's case. The applicant did not provide any further information to the Tribunal with her application for review.

19. I am referred to the decision of Jacobsen J in NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18]-[21] where his Honour said:

    There was no obligation on the RRT to make any further investigation of the claim over and above the material submitted by the applicant.  The High Court has made it clear on a number of occasions that proceedings before the RRT are inquisitorial and that it is for an applicant to advance whatever evidence he or she wishes to put forward in support of the application.

20. As to the claim of bias which is included in the third ground, the applicant, when asked why the Tribunal was biased, said because the Tribunal did not accept her case. Well evidence of a failure to accept an application, or to grant an application, is not of itself an evidence of bias. An allegation of bias is serious. It must be clearly alleged and proved (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749; SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358). There is nothing in the material before the Court that would support the applicant's claim of bias.

21. I am mindful of the fact that the applicant is not legally represented.

    
    

    I have read the Tribunal decision independently and I am not able to identify any arguable case for jurisdictional error.

22. As is so often the case where an applicant does not attend a Tribunal hearing, the likely result, and the almost inevitable result, is that the application before the Tribunal will not be successful.

    
    

    This, unfortunately, is just such a case. I am not satisfied that any jurisdictional error has been made out. Consequently, the decision is a privative clause decision as defined by s. 474 of the Migration Act.

23. This is a proper matter for an order for costs in favour of the first respondent Minister. The applicant has been wholly unsuccessful in her claim. The amount sought of $3,600.00 is, as I said, below the amount provided by the scale in the Magistrates Court Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  14 November 2007