SZNJC v Minister for Immigration
[2009] FMCA 633
•29 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNJC v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 633 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong practice – did not attend Tribunal hearing – assertion of medical incapacity unsupported by any evidence – no arguable case shown – adjournment refused – application dismissed at show‑cause hearing. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), ss.424A, 426A, 426A(1) |
| Applicant: | SZNJC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 679 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 29 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr G Johnson |
| 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 $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 679 of 2009
| SZNJC |
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 August 2008. On 23 September 2008, she lodged an application for a protection visa. It disclosed no assistance being given with the completion of the forms, and gave a residential address at Campsie and a post office box in the Haymarket for the receipt of correspondence. The visa form stated in the personal details section that the applicant’s husband was in China, not Australia.
The application was accompanied by a very brief statement, in which the applicant claimed to have “experienced a terrible ordeal in my original country as a genuine Falun Dafa practitioner”. It said that the applicant had been “illegally detained for appealing on behalf of Falun Dafa” when it was outlawed in 1999, but gave no details of persecution encountered at any time. No corroboration was provided, and the applicant did not attend an interview to which she was invited by the delegate.
The delegate made a decision refusing the visa on 13 November 2008. The delegate noted that the applicant had left China legally and without difficulty on a valid Chinese passport, and that she had not attended the interview. The delegate was not satisfied that she had a commitment to Falun Gong.
The applicant lodged an application for review by the Tribunal, giving her previous residential and postal addresses. She presented no evidence nor submissions to the Tribunal.
An invitation to attend a hearing of the Tribunal was sent to her postal address on 16 January 2009, and invited her to a hearing on 16 February 2009. The letter told the applicant that the Tribunal was unable to make a favourable decision on the information before it. It said:
The Tribunal will only change this hearing date for good reason. Please contact the Tribunal immediately if there is a difficulty in the hearing proceeding on this date. Please note that the Tribunal may make a decision without further notice, if an applicant invited to appear before the Tribunal fails to attend the scheduled hearing.
However, the applicant did not return a response to hearing invitation, and she did not attend the hearing. No contact was made to the Tribunal by or on behalf of the applicant to explain her absence. The Tribunal proceeded to make a decision on 17 February 2009, which affirmed the delegate’s decision.
The Tribunal relied on s.426A(1) of the Migration Act 1958 (Cth) to proceed in that manner, and in my opinion it was clearly authorised to do so. The Tribunal said that it was not satisfied that the applicant had suffered any Convention‑related harm, nor that there was a real chance of such harm occurring in the reasonably foreseeable future if the applicant returned to China.
The applicant filed an application to this Court on 23 March 2009 containing the following three grounds:
1.The Refugee Review Tribunal failed to explain, in the form of a document, the reason why the Tribunal considered some particulars of the information relevant to the matter.
2.It is not reasonable for the Tribunal to conclude that I am or were never being a Falun Gong practitioner.
3.The Second Respondent made a number of jurisdictional errors in making of the decision.
Her affidavit contained no evidence seeking to explain her absence from the hearing of the Tribunal.
At a first court date on 14 April 2009, the applicant attended and had the assistance of a Mandarin interpreter. She declined to participate in the free legal advice scheme, and was given an opportunity to file an amended application and any evidence in support of her application. However, she did not file any additional documents.
At the appointed show‑cause hearing on 9 June 2009, the applicant attended but sat at the back of the court holding her head. A person who said he was her husband passed to the Court a doctor’s certificate from Dr Shi at the Associated Medical Centre at Campsie. This certified an attendance on 6 June 2009 by the applicant, and gave an opinion that she was suffering from “viral infection” and would be unfit for duty from 6 to 11 June 2009. Notwithstanding the inadequacy of this certificate, I was prepared to adjourn the matter until today.
The applicant attended today with another medical certificate from Dr Huang at the same medical centre dated 28 June 2009. This certificate gives that doctor’s opinion that she is suffering “headache + neck pain” and is unfit for duty from 29 June until 1 July 2009. This does not provide a diagnosis of an incapacitating medical condition, and appears only to repeat a patient’s assertions of symptoms. As with the earlier certificate, it certainly does not certify any incapacity to attend court for a brief hearing.
The applicant came to court today, and presented the certificate. A Mandarin interpreter was in attendance. The applicant sat at the Bar table holding her head, but she appeared able to understand simple questions I put to her, and I was not satisfied that she was incapable of sufficiently participating in today’s hearing. Indeed, I detected an element of histrionics in her demeanour. I therefore declined to adjourn the show‑cause hearing again.
When I invited her to explain her absence from the Tribunal’s hearing, she claimed that she had been badly burnt by hot water the day before the hearing of the Tribunal, and had not attended for that reason. She said she had attended a doctor, but had not obtained any doctor’s certificate, and she had not tried to inform the Tribunal. She thought it was now too late for her to get any evidence from the doctor about her unfitness in February. She presented no sworn evidence of herself or a witness, nor any corroborative evidence, of any incapacity at the time of the Tribunal’s hearing.
On the evidence before me today, I am far from satisfied that the applicant has raised an arguable case for the setting aside of the Tribunal’s decision.
The grounds in her application are obviously lacking in arguable merit. The Tribunal’s decision did not turn upon any procedures under s.424A. The reasons given by the Tribunal for affirming the delegate’s decision were manifestly reasonable in the circumstances. There are no particulars of other jurisdictional error given by the applicant, and I am unable to discern any arguable particulars of Ground 3. In my opinion, the Tribunal was clearly entitled to proceed under s.426A in the absence of the applicant.
The applicant has been given more than enough time in this Court to present evidence of an incapacity to attend the Tribunal hearing, if indeed she has a factual basis for asserting this, but she has not presented any evidence and appears now to admit that it is unavailable.
I see no prospect of the applicant’s case succeeding if it continued, and I consider it appropriate today to refuse the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 8 July 2009
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