SZLJH v Minister for Immigration - [2007] FMCA 2143

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLJH v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2143

MIGRATION – RRT decision – Chinese applicant claiming political persecution – 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), ss.424A(1), 426A(1)

Applicant:

SZLJH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2966 of 2007

Judgment of:

Smith FM

Hearing date:

18 December 2007

Delivered at:

Sydney

Delivered on:

18 December 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms A Crittenden

Solicitors for the Respondents:

Clayton Utz

ORDERS

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.
The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2966 of 2007

SZLJH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in February 2007, gaining entry on a visa contained in a passport which the applicant claims was not in his name, although it contained his photograph. A migration agent, Priscilla Yu, lodged an application for a protection visa on his behalf, presenting what was claimed to be an identity card showing his true identity. An attached statement set out the applicant’s claims to fear persecution if he returned to the People’s Republic of China.
The applicant claimed to have come to the adverse attention of the authorities in his home town, as a result of the efforts of he and his wife to have a second child contrary to the one child policy. He claimed to have organised political protest actions including the distribution of propaganda material. He claimed that the police had discovered that he was “the main organiser” of this activity, and that “I immediately left my hometown”. He claimed:
… the police have visited my home with an arrest warrant and a search permit for 3 times; and my families have been clearly informed that I have been regarded as an activist who has actively organised “anti‑government” movement. I have been on the black list of the PSB since then.
No supporting details nor evidence for these claims was ever presented to the Department of Immigration or the Tribunal. A delegate refused the application on 21 May 2007, and his or her decision was affirmed by a decision of the Refugee Review Tribunal handed down on 6 September 2007.
The Tribunal referred to an invitation to attend a hearing which had been sent by facsimile to the applicant’s agent on 10 July 2007, appointing a hearing for 8 August 2007. This had been acknowledged by the agent, and a “Response to Hearing Invitation” signed by the applicant had been forwarded to the Tribunal indicating a desire to attend the hearing. However, there was no attendance at the hearing, and no contact was made to the Tribunal before it handed down its decision explaining the applicant’s absence or seeking a rescheduled hearing. The Tribunal therefore proceeded to make a decision under s.426A(1) of the Migration Act 1958 (Cth). I have considered the procedures followed in that respect, and can see no arguable ground of jurisdictional error shown by the Tribunal’s procedure.
In its statement of reasons, the Tribunal said that it had considered the applicant’s claims, but pointed to the limited details in them, and that it had not had the opportunity to test the claims at a hearing. It said that it was, therefore, not satisfied that the applicant had been persecuted as he claimed, nor that he had “a well‑founded fear of persecution for reasons of his claimed political opinion or his membership of a particular social group (a parent with more than one child)”.
The applicant now asks the Court to set aside the Tribunal’s decision, and to order it to reconsider his refugee claims. His application has been listed today to consider whether it raises an arguable case for the making of these orders. 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.
He has filed no further documents, but relies on arguments in his original application. This contains seven particulars of general allegations of error of law and procedural error amounting to jurisdictional error:
1.The Tribunal failed to consider, correctly and fairly, that I should be the person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
2.The Tribunal failed to consider that I must be subjected to persecution on my return to my country China. The persecution has, which I fear, definitely involved serious harm, including a threat to life or liberty, significant physical harassment or ill‑treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, etc.
3.The Tribunal failed to consider that the persecution which I fear is only for the reason that I have held different political opinion against the Chinese government; and particularly such an opinion have come to special attention of the PRC authorities.
4.The Tribunal failed to consider my fear of persecution is well‑founded because I have a real chance of being persecuted on my return.
5.As a matter of fact, I have given detailed claims in support of my application in my application. I originally decided to attend the Tribunal’s hearing, but had to change my mine [sic: mind] eventually because I was really scared to discuss my claims directly with a government office face-to-face. But, even I did not attend the hearing, the Tribunal should at least give me a chance to comment those negative information or issues in writing.
6.It is apparently that the Tribunal failed to comply with its obligations under s.424A(1) of the Act; and the Tribunal therefore must err in law.
7.Furthermore, the Tribunal made its decision with bias; because the Tribunal’s decision mostly based on its assumption.
In my opinion, there is no arguable substance to the contentions made in particulars 1, 2, 3 and 4. The Tribunal manifestly did identify the claims which were before it, and addressed them as I have described above.
In relation to particular 5, the applicant’s explanation for his absence from the hearing has not been supported by any verified evidence. Moreover, today, he told me a different reason for his absence, claiming that he had felt sick and had missed the hearing for that reason. He had no evidence to corroborate this. He said that he had not contacted his agent nor the Tribunal to explain his absence. Whatever the reason for his absence, he has not presented to the Court any evidence raising an arguable ground of jurisdictional error on the part of the Tribunal, when it decided to proceed under s.426A(1).
In relation to particulars 6 and 7 and the last sentence of 5, there is no substance shown in the material before me to support any contention of a failure to comply with s.424A(1), nor that the Tribunal’s decision was affected by bias, whether actual or ostensible.
In my opinion, the application does not raise an arguable case for the relief claimed, and it is appropriate to dismiss it under Rule 44.12(1)(a).

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 11 January 2008