SZNEW v Minister for Immigration - [2009] FMCA 376

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNEW v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 376

MIGRATION – RRT decision – Chinese applicant claiming fear of 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), ss.425, 426A(1)

Applicant:

SZNEW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 202 of 2009

Judgment of:

Smith FM

Hearing date:

16 April 2009

Delivered at:

Sydney

Delivered on:

16 April 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Pinder

Solicitors for the Respondents:

DLA Phillips Fox

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 $2,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 202 of 2009

SZNEW

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 June 2008. The evidence suggests that she was married to a Taiwanese national, who was present in Australia at that time. On 15 July 2008, she applied for a protection visa assisted by a registered migration agent. The application made general claims explaining a fear of return to her country of nationality, the People’s Republic of China.
The applicant said that she had been practising Falun Gong in China “over the past five years”. She had heard from a friend, with whom she had practised Falun Gong, that the police had noticed her because of her Falun Gong activities. Another practitioner had been arrested in August 2007. The applicant claimed to have been very scared upon knowing that the police had asked about her, and she feared that she could be arrested and put in gaol and even tortured.
No supporting evidence for these claims was provided, and the applicant provided no explanation to reconcile her refugee claims with the employment history set out in the visa application, which suggested that she had been self‑employed in Taiwan between 2006 and 2008.
The protection visa application requested that correspondence should be sent to the applicant’s own postal address indicated in the application, and the applicant later provided a residential address when requested to do so by the Department. The delegate sent to both of those addresses invitations to attend an interview, but the applicant did not attend, nor contact the Department.
A delegate refused the application on 22 September 2008. The delegate said that because of the applicant’s non‑attendance at the interview, she had no opportunity to obtain and check all the available evidence relating to the applicant’s claims, and was not satisfied that the applicant had a fear of Convention‑related persecution in the People’s Republic of China or that she was a person to whom Australia had protection obligations.
The applicant filed an application for review by the Tribunal on 9 October 2008. It did not disclose an adviser authorised to act for her, and requested that correspondence be sent to her residential address. The Tribunal sent to that address an invitation to appear at a hearing on 27 November 2008. The letter accorded with the requirements of such invitations provided under the Migration Act and Regulations, and informed the applicant that it had considered the material but was unable to make a favourable decision on that information alone.
The letter asked the applicant to return a response form, indicating whether she would attend, but that was not returned. However, no contact was made to the Tribunal by or on behalf of the applicant at all, and she did not attend the hearing.
On 23 December 2008 the Tribunal made a decision which affirmed the delegate’s decision. The Tribunal said that it had proceeded pursuant to s.426A(1) of the Migration Act 1958 (Cth) to make a decision without taking any further action, due to the absence of the applicant from the hearing. I can see no arguable basis upon which the Tribunal lacked that power or misapplied its discretion.
In its statement of reasons, the Tribunal referred to the claims of the applicant, and to independent evidence about the treatment of Falun Gong practitioners in China. It pointed to gaps in the statements of the applicant in her protection visa application, and said:
42.Given the lack of details in the applicant’s claims and the lack of opportunity to explore the details in these claims or their veracity, the Tribunal is not satisfied on the basis of the available evidence that the applicant has been or is a practitioner of Falun Gong. …
The Tribunal did not accept the claims that had been made by the applicant, and was not satisfied that she would be persecuted if she returned to China, nor that she had a well‑founded fear of persecution for a Convention reason if she returned to China.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter. Her application has been set down today to consider whether it raises an arguable case for the making of these orders. The applicant has been given an opportunity to file an amended application and evidence in support of her application, after receiving a bundle of relevant documents and a referral for free legal advice. She has, however, not filed any further evidence or documents explaining the two contentions made in the application.
These are:
1.The Tribunal didn’t provide me with adequate opportunity to substantiate my claims.
2.The Tribunal failed to consider my claims properly.
I do not accept that the contention in Ground 1 has been shown to have any arguable substance. The Tribunal afforded the applicant the opportunity to attend a hearing as is required by s.425 of the Migration Act, and it was authorised by s.426A(1) to proceed in her absence. There is no evidence before me raising any arguable case that the Tribunal misapplied its discretion to exercise that power.
The applicant today made oral statements about her absence, which were somewhat inconsistent. She said she was sick on the day of the hearing, and made differing statements explaining the absence of any medical certificate, and whether she had visited a doctor for a cold on that day, and why she did not contact the Tribunal. She also said that she had “asked the interpreter but she forgot”. It is unclear what she meant by that. It appears that she had, if not a migration agent, a helper with her case at the time. On her oral statements today which are totally unverified, I do not consider she has raised an arguable case upon which a challenge to the Tribunal’s decision to proceed under s.426A(1) could be based.
The second ground of the application is unexplained by any submission or argument. The Tribunal was clearly aware of the contents of the visa application, and the applicant had not presented her claims in any other way. I do not consider it reasonably arguable by the applicant that the Tribunal did not consider the claims, nor that it did not genuinely consider them and assess them in a manner which was open to it in law.
I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it appropriate in all the circumstances to dismiss the application today under r.44.12(1)(a).

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 May 2009