SZMMM v Minister for Immigration

[2008] FMCA 1405

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMMM v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1405

MIGRATION – Chinese applicant claiming persecution for Falun Gong activities – 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)

Applicant: SZMMM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1734 of 2008

Judgment of: Smith FM

Hearing date: 30 September 2008

Delivered at: Sydney

Delivered on: 30 September 2008

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Mr B May

Solicitors for the Respondents: Australian Government Solicitor

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 1734 of 2008

SZMMM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in December 2007. On 4 January 2008 a migration agent, Mr Song Tao Lu, lodged an application for a protection visa on behalf of the applicant. A statement attached to the application claimed that the applicant had practiced Falun Gong from August or September 1998. He had been compelled to take a re-education course for two months in March 2000. In June 2002 he was detained and mistreated and sentenced to eight months enforced labour, “because I appealed and said the truth of Falun Gong”. He was not released until September 2003. He claimed that at some later date, which was unclear, he was again detained in a re-education centre for eight months, and after his release “from then on, I prepared to leave China though it was not easy for me”.

2. Details of these claims were not given to the Department of Immigration, and no corroboration was provided. A delegate refused the application on 21 February 2008. The delegate's statement of reasons referred to the vague and unsubstantiated nature of the claims, and the delegate was not satisfied as to their credibility. The delegate did not accept that the applicant would have been able to depart from China legally on his own passport if he was of serious interest to Chinese authorities.

3. The applicant's agent filed an appeal to the Refugee Review Tribunal. The form requested that correspondence should be sent to the agent at the agent's address. A letter was sent to that address by facsimile on 10 April 2008, inviting the applicant to attend a hearing on 14 May 2008. The importance of the hearing was explained in the letter. The Tribunal received a response by facsimile indicating that the applicant wanted to come to the hearing.

4. However, there was no contact by the applicant or his agent with the Tribunal, and nobody attended the hearing.  No further communication was made to the Tribunal before it handed down a decision on 10 June 2008, although the intention to hand down the decision was also communicated to the applicant's agent in advance.

5. The Tribunal affirmed the delegate's decision. The Tribunal said that it was unable to be satisfied on the evidence before it that the applicant was a Falun Gong practitioner, nor that the events which he claimed had occurred, nor that he had genuine fears of persecution. The Tribunal was unable to be satisfied that there was a real chance that he would be persecuted for reasons of any real or perceived involvement in Falun Gong if he returned to China.

6. The application to the Court asks that the Tribunal's decision be set aside and the matter remitted for reconsideration.  The applicant attended a First Court Date in the application on 29 July 2008, and orders which I made on that occasion were explained to him.  These included allowing him an opportunity to file an amended application and evidence by way of affidavits, after receiving a bundle of relevant documents and a referral for free legal advice from a barrister.  The applicant was warned that his application might be dismissed today if he did not raise an arguable case for relief. 

7. The applicant has not filed any additional documents, and his application contains only the following grounds:

   1.The applicant is a citizen of China.  If the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of Refugees and the 1967 Protocol relating to the status of Refugees. 

   2.In making of the decision, the second respondent committed jurisdictional error by failing to comply with the compulsory requirements of s.424A Migration Act, with regard to country information used by the second respondent.

8. The first ground does not raise any ground of jurisdictional error, but asserts a refugee status. However, that is not a matter for the Court to decide.

9. The second ground is misconceived:  first, because the Tribunal did not rely on country information as a reason for affirming the delegate's decision; and secondly, by reason of s.424A(3)(a). 

10. The applicant today made two submissions.  He first submitted that his statement was true, that is, I assume, his protection visa application statement.  However, this does not advance his case in this Court.

11. When invited to explain his absence from the hearing, he first said that he had suffered flu and had been unable to attend, and he then said he had broken his leg. He presented no medical nor other evidence for either event, and he said that he had not consulted a doctor. He claimed not to be able to walk or telephone the Tribunal. When I pointed out that he had an agent who apparently spoke his language, he claimed to have telephoned the agent, and that the agent had failed to communicate these matters to the Tribunal. However, no evidence of these assertions has been presented to the Court, and in all the circumstances I am not disposed to allow the applicant more time to present evidence to give substance to them.

12. In my opinion, the application and evidence presented to the Court by the applicant does not raise an arguable case for the orders sought. I consider it appropriate to dismiss the application today under r.44.12(1)(a).

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  9 October 2008