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MIGRATION - Application to review decision of Refugee Review Tribunal - no jurisdictional error.

SZDJT v Minister for Immigration [2004] FMCA 937 (25 November 2004)

SZDJT v Minister for Immigration [2004] FMCA 937 (25 November 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDJT v MINISTER FOR IMMIGRATION
[2004] FMCA 937




MIGRATION - Application to review decision of Refugee Review Tribunal - no jurisdictional error.




Minister for Immigration & Ethnic Affairs v Goh (1997) 191 CLR 559

Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437

Applicant:
SZDJT




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1189 of 2004




Delivered on:


25 November 2004




Delivered at:


Sydney




Hearing date:


25 November 2004




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Ms R Francois




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) That the application is dismissed.

(2) That the Applicant pay the Respondent's costs set in the amount of $3,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1189 of 2004

SZDJT



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application for review of a decision by the Refugee Review Tribunal (the Tribunal) handed down on 23 March 2004. The Tribunal affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of the People's Republic of China, arrived in Australia on 23 February 2003 and lodged an application for a protection visa on 3 March 2003. He claimed to have a well founded fear of persecution on the basis of his membership or practice of Falun Gong. He provided a statement as to his claimed involvement in Falun Gong in support of his application. No other documents were provided in support and the application was refused by a delegate of the Minister on 20 May 2003.

2. The applicant sought review by the Tribunal on 24 June 2003. In a statement accompanying his application for review, he indicated that he strongly disagreed with the delegate's decision `for the following reasons' and then set out a re-statement of his claims that was similar to his original claim although differing in some details. The specific concerns raised by the delegate in the delegate's reasons for decision were not addressed in this statement.

3. On 12 December 2003 the Tribunal wrote to the applicant and informed him that it was not able to make a favourable decision on the information before it and invited him to attend a hearing. The respondent has filed an affidavit sworn by the solicitor with carriage of the matter for the respondent annexing a page from the registered post records of the Refugee Review Tribunal for 12 December 2003 which indicates that two letters were sent to the applicant on 12 December 2003. This is consistent with the material before the court in the bundle of relevant documents consisting of a copy of the letter, the relevant addresses to which it was sent and registered post numbers.

4. In oral submissions, the applicant did not dispute having received this letter. He indicated that he did not attend the Tribunal hearing because he was ill but he did not notify the Tribunal. This is consistent with what is recorded in the Tribunal reasons for decision, indicating that the Tribunal did not receive a response to the letters inviting the applicant to a hearing, that the Tribunal was unable to ascertain any more recent address than those used and that there was no telephone number provided by the applicant to the Tribunal.

5. The applicant did not appear on the day scheduled for the Tribunal hearing. Pursuant to section 426A of the Migration Act 1958, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal found that it could not be satisfied as to the applicant's claims in view of the insufficient information and lack of detail provided. It had regard to the scant details, the fact that the claims were expressed in general terms and that essential details (such as how the applicant became involved in and the details of his activities with Falun Gong) were not provided. The Tribunal also referred to an absence of detail as to the circumstances of a claimed detention in 1999 and what occurred thereafter, in particular, how he was harassed by the authorities over the following three years as claimed. There was also lack of detail referred to by the Tribunal in relation to a claimed arrest and detention in July 2002. Nor had the applicant indicated how he had been able to obtain a passport and depart China without difficulties, or how, where and when he continued to practice Falun Gong. The Tribunal stated that the applicant had been put on notice by the delegate's decision that it was not satisfied that his fear of persecution was well founded. He had not sought to challenge the decision in a meaningful way, in that he had not provided any further information to the Tribunal which would enable it to be satisfied that he had suffered persecution and that his fear of facing persecution in the future was owing to a Convention reason or was well founded.

6. The Tribunal was unable to be satisfied that the applicant had been persecuted for a Convention reason in the past or that there was a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future.

7. It is for an applicant to satisfy the Tribunal that all of the elements of his claim are made out, MEIA v Goh (1997) 191 CLR 559 at 596 and the Tribunal is not required to accept uncritically any or all of the allegations or claims made by an applicant, Randhawa v MEIA (1994) 52 FCR 437 at 451. In this instance, the applicant's application for review does not raise any meaningful grounds.

8. He repeats his claim to fear persecution and that his fear is well founded and seeks a decision that he is a refugee. Such grounds seek merits review which is not available in this court. The Tribunal's finding that it was not satisfied on the evidence before it that the applicant had a well founded fear of persecution was open to it on the material before it.

9. As the applicant is unrepresented, I have considered whether any jurisdictional error is apparent on the material before the court. No such jurisdictional error is apparent. In particular, there is nothing in the material before me to suggest that the Tribunal failed to comply with its obligations under section 425 of the Migration Act 1958 in relation to inviting the applicant to a hearing or that he was, in any way, denied procedural fairness. The Tribunal properly invited the applicant to a hearing. The letter of invitation dated 12 December 2003 met the requirements of the Migration Act, in particular the obligations in section 425A of the Act. The applicant does not dispute that he received notification of the hearing. The fact that he failed to attend (which he says was because he was unwell) does not establish a jurisdictional error.

10. There is no suggestion that he sought a postponement or adjournment of the Tribunal hearing. As no jurisdictional error is apparent the application must be dismissed. I will hear submissions in relation to costs.


RECORDED : NOT TRANSCRIBED

11. The applicant has been unsuccessful. There is nothing in the circumstances before me to warrant a departure from the usual principle that the unsuccessful applicant should meet the costs of the respondent. The applicant states that he is not in employment. This is not a reason for not awarding costs, although it may be a matter taken into account by the respondent in this matter in determining how and when to seek to recover any costs ordered.

12. In light of the nature of this and other similar matters, I consider that an appropriate amount for the costs is $3,500 and that should be set in accordance with the Federal Magistrate's Court Rules.

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

Associate:

Date: 13 December 2004.
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