SZLNC v Minister for Immigration - [2007] FMCA 2152

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLNC v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2152

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 as a result of his practice of Falun Gong – allegation of bias – no evidence of bias – where applicant did not attend Tribunal hearing – no reviewable error.

Migration Act 1958 (Cth), ss.91R, 424A, 425, 426A, 474(2)

SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 followed
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 followed

Applicant:

SZLNC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3244 of 2007

Judgment of:

Scarlett FM

Hearing date:

10 December 2007

Date of Last Submission:

10 December 2007

Delivered at:

Sydney

Delivered on:

10 December 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Appearance for the Applicant:

In person

Appearance for the Respondents:

Ms Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $2,300.00.
I will allow three (3) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3244 of 2007

SZLNC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

The applicant is a citizen of the People’s Republic of China. He asks the Court for a writ of writ of certiorari to quash the decision of the Refugee Review Tribunal that was signed on 31^st August and handed down on 20^th September 2007. He also asks for a writ of mandamus addressed to the Tribunal, requiring the Tribunal to hear and determine his application for a visa according to law, and for a writ of prohibition against the first respondent, the Minister for Immigration & Citizenship, preventing any action being taken in reliance on the Tribunal’s decision. The Minister opposes these orders.
The applicant arrived in Australia on 21^st April 2007. He applied for a protection (Class XA) visa on 27^th April 2007. He claimed to fear persecution as a follower of Falun Gong, which is regarded as an illegal cult in China. A delegate of the Minister refused his application for a visa on 16^th May 2007.
The applicant then applied to the Refugee Review Tribunal for a review of that decision. His application was received on 12^th June 2007. The applicant did not provide any additional documentary evidence with his application. He did not nominate a migration agent or any person to act as his authorised recipient for correspondence.

He gave his residential address in a suburb of Sydney as his address for correspondence. He did not provide any telephone or fax numbers.
The Tribunal wrote to the applicant on 21^st June 2007. The letter told the applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The letter invited the applicant to attend a hearing of the Tribunal on 16^th August 2007. A case note that appears in the Court Book[1] indicates that a friend of the applicant rang the Tribunal on the morning of 14^th August 2007, two days before the hearing. The comments on the case note say:
The applicant’s friend (Mr Shuang Lin Guo 071488836) rang today to say that the applicant is sick and may not be attending the hearing on Thursday, 16/8. I suggested that he fax a medical certificate to the Tribunal and ask for a postponement. He said he would.
[1] At page 45
A copy of that note appears in Court Book[2]. The applicant sent a fax to the Tribunal in which he said relevantly:
I could not appear at the hearing because I am so sick right now. Please arrange another time for me[3].
[2] At page 45
[3] See Court Book page 46
The applicant forwarded a medical certificate dated 15^th August from a doctor in the Sydney suburb of Campsie. That medical certificate said that the applicant was receiving medical treatment and for the period 15^th to 16^th August he would be unfit to continue his usual occupation[4].
[4] See Court Book page 47
The Tribunal wrote to the applicant on 16^th August at his address for correspondence. The letter told the applicant that the hearing had been rescheduled to 1:00 pm on 30^th August 2007. The applicant did not attend the hearing on 30^th August 2007. The Tribunal proceeded to exercise its power under s.426A of the Migration Act to make its decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal signed its decision on
31^st August 2007, and handed that decision down on 20^th September.
A copy of the decision record appears at pages 56 through to 61 of the Court Book.
In the decision the Tribunal summarised the applicant’s written claims at pages 59 and 60 of the Court Book. The Tribunal accepted that the applicant was a citizen of the People’s Republic of China on the basis of a photocopied page of his passport attached to his application for a protection visa. The Tribunal noted that the applicant claimed that he feared that he would be persecuted in China because he was a Falun Gong practitioner. However, the Tribunal went on to say:
In the present case the applicant’s claims concerning Falun Gong are almost completely devoid of supporting detail; the only concrete elements being that he became a practitioner at some time in 2004, that he ‘soon’ became active in organizing Falun Gong activities in China, that he was detained for a few weeks at some time in 2006, and that in Australia he has protested outside the Chinese Consulate in Sydney[5].
[5] See Court Book page 60
The Tribunal went on to note that the applicant provided no information as to how he came to practise Falun Gong, the circumstances of the detention that he claimed, or how he was given his freedom. The Tribunal noted that the applicant’s claims were without any form of corroboration. The Tribunal went on to note that it would have used the opportunity of a hearing to ask the applicant about his involvement with Falun Gong and his claimed fear of harm in China.
The Tribunal went on to find:
In the present case the applicant’s written claims, brief, vague, uncorroborated and lacking in supporting details as they are, amount to no more than simple assertions. They do not provide a sufficient basis on which the Tribunal can be satisfied that the Applicant was ever a Falun Gong practitioner in China or since he has been in Australia, or that he was ever detained or in any other way harmed in China for this reason. Nor do they allow the Tribunal to be satisfied that the Applicant ever demonstrated outside the Chinese Consulate in Sydney, as he claims to have done[6].
[6] See Court Book page 61
The Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason should he return to China, and affirmed the decision not to grant the applicant a protection (Class XA visa).
The applicant commenced proceedings on 18^th October 2007 and relies on an amended application for which I gave leave to file in Court today. The applicant sets out three grounds in his amended application:
1. The Tribunal failed to consider my application according to S 91R of the Migration Act 1958. The Tribunal had bias against me when considered my application.
2. The Tribunal referred to wrong independent information for the consideration of my application.
3. I was not given the opportunity to explain my case at hearing.
The Minister relies on an affidavit of Megan Louise Palmer filed on 28^th November 2007 annexing a copy of the Refugee Review Tribunal’s registered post records for 16^th August 2007. That record indicates that correspondence was sent to the applicant by registered post on that date. The Minister also relies on a written outline of submissions filed on 3^rd December. In those submissions the Minister claims that the applicant’s allegation of breach of s.91R of the Migration Act cannot be made out because the Tribunal correctly explained the relevant law at the beginning of its reasons, and expressly considered the definition of refugee and applied the correct principles.
The Minister submits that there is no evidence of bias, which is a serious allegation which should be firmly and distinctly made and clearly proven. The Minister submits that the material before the Court does not provide any foundation for a claim that the Tribunal approached the matter with a closed mind, or did not conduct its review in good faith.
As to the ground that the Tribunal failed to refer to sufficient independent country information, the Minister submits that the Tribunal is not obliged to do so or to seek out information to support the applicant’s case.
As to the third ground, the Minister submits that the Tribunal wrote to the application under s.425 of the Act advising that it was unable to make a favourable decision on the information before it, and inviting him to give oral evidence. The Tribunal postponed the hearing and the applicant did not attend on the further occasion. The Minister submits that because the applicant did not attend the scheduled hearing the Tribunal was entitled to proceed and make a decision on the review without taking any further action to enable him to appear before it to give evidence and present arguments[7].
[7] See s.426A of the Migration Act
The Minister submits that no error has been established and there is no jurisdictional error on the part of the Tribunal.
The applicant told the Court that the Tribunal, in his view, did not consider his materials very carefully and he believed that showed bias. He did not attend the Tribunal hearing because he was in Newcastle for one or two months and it was not until he returned that he received mail from the Tribunal. He conceded that he did not tell the Tribunal that he was in Newcastle, and said that he did not think that he would be there for so long.
When dealing with the grounds I am not satisfied that the Tribunal failed to consider the applicant’s claim according to s.91R of the Migration Act. It is clear that the Tribunal considered the application of s.91R of the Act at page 58 of the Court Book. There is no evidence of bias. Bias is a serious allegation which implies fault on the behalf of the decision maker. It is well established that bias must be clearly alleged and clearly proved. There is just no evidence of bias and that claim must fail.
As to the applicant’s second ground that the Tribunal referred to wrong independent information when it considered his application, the Tribunal did not consider any independent information. If the applicant had information that he wanted the Tribunal to consider, he should have attended the hearing and provided the information.

The second ground fails.
As to the third ground, I am not satisfied that the applicant was not given an opportunity to explain his case at a hearing. He was given an opportunity to attend a hearing on 16^th August. He sought a postponement of that hearing on the basis that he was ill, and provided a medical certificate. The medical certificate was dated 15^th August, the day before the hearing, and comes from a doctor in the Sydney suburb of Campsie. In my view that is evidence to indicate that the applicant was able to be present in Campsie on 15^th August, the day before the hearing was scheduled.
The Tribunal wrote back to the applicant on 16^th August inviting him to attend a further hearing on 30^th August. That letter would have arrived within a few days. The applicant claimed that he was in Newcastle, so he must have gone to Newcastle almost immediately after he had seen the doctor and asked for his hearing to be postponed. It is surprising that the applicant did not wait around to find out whether his application was going to be postponed or not. It may well have been the fact that the applicant was in Newcastle for one or two months, which was longer than he expected to be. But he did not inform the Tribunal he was going to Newcastle. He did not arrange for his mail to be redirected. The Tribunal had no idea at all that the applicant was going to go to Newcastle and would be there for a month or two.
The Tribunal wrote back to the applicant’s address for receipt of correspondence that the applicant had provided. The applicant did not provide any telephone or fax numbers, or any alternate means of communication. In my view the Tribunal is not at fault in deciding to proceed to make a decision on 30^th August without postponing the hearing again.
This unfortunately is yet another example of a case where an applicant did not attend the hearing at the Refugee Review Tribunal. Bearing in mind that the letter under s.425 of the Migration Act sent by the Tribunal told the applicant that the material he had provided was not sufficient to allow the Tribunal to be satisfied that it could make a decision in his favour, the importance of attending a hearing or providing further written evidence must have been only too clear.

By not attending the hearing and by not providing any further evidence the applicant ensured that his application was unlikely to succeed.

This happens all too often, (see SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs[8], also SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[9]).
[8] [2005] FCA 1811
[9] [2005] FCA 1306
I am mindful that the applicant is not legally represented. I have read through the Tribunal decision independently of the applicant’s or the first respondent’s submissions. I am satisfied that no arguable case for jurisdictional error can be made out. The Tribunal complied with s.425 of the Migration Act in inviting the applicant to a hearing, and acted within its power under s.426A in deciding to proceed to a hearing on the second occasion without taking further action to enable the applicant to appear. There is no breach of s.424A of the Migration Act, and I am satisfied that no jurisdictional error has been made out.
As there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. As a privative clause decision it is final and conclusive, and not subject to orders in the nature of certiorari, mandamus or prohibition. It follows that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $2,300.00. The applicant says that he does not have any money to pay the costs. He has been unsuccessful in his claim and it is well established that the fact that a party cannot afford to pay the costs is not a bar to the Court making a costs order. I propose to make an order for costs in the sum of $2,300.00, but I will allow three months to pay.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 14 January 2008