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MIGRATION - Application to review decision of Refugee Review Tribunal - Applicant failed to attend Tribunal hearing - no jurisdictional error.

SZDJN v Minister for Immigration [2004] FMCA 859 (11 November 2004)

SZDJN v Minister for Immigration [2004] FMCA 859 (11 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDJN v MINISTER FOR IMMIGRATION
[2004] FMCA 859




MIGRATION - Application to review decision of Refugee Review Tribunal - Applicant failed to attend Tribunal hearing - no jurisdictional error.




NAMW v Minister for Immigration & Multicultural Indigenous Affairs [2004] FCAFC 264

Applicant:
SZDJN




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1172 of 2004




Delivered on:


11 November 2004




Delivered at:


Sydney




Hearing date:


11 November 2004




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Mr A McInerny




Solicitors for the Respondent:


Sparke Helmore




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



SYG1172 of 2004

SZDJN



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 of the Refugee Review Tribunal (the Tribunal) handed down on 17 March 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of the Peoples Republic of China, arrived in Australia on 28 September 2003 and lodged an application for a protection visa on 3 October 2003. The application was refused and he sought review by the Tribunal. In his application for review he provided his home address, which was also his mail address, and a very generally expressed written submission which was in addition to the half page statement that had been provided in connection with his protection visa application.

2. The Tribunal wrote to the applicant on 16 January 2004 at the address provided by him in his review application, advising him that it had considered all the material before it relating to his application but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 12 February 2004. The applicant was advised in this letter that if he did not attend the hearing and a postponement was not granted then the Tribunal may make a decision on his case without further notice. The Tribunal's reasons for decision record that no response was received to this letter and that the applicant did not attend the hearing at the date, time and place scheduled.

3. A Tribunal checklist provided in the bundle of relevant documents before the court indicates that unsuccessful attempts were made on three occasions over two days to contact the applicant on the telephone number provided by him. In those circumstances, pursuant to section 426A of the Migration Act 1958, the Tribunal made its decision on the review without taking any further action to enable the applicant to appear before it.

4. The applicant claimed to fear persecution by reason of his membership of Falun Gong. He claimed that he became a practitioner of Falun Gong in 1997, that he introduced 18 other people to the practice, received training from leading figures and came to know leading members but that in May 2000, after some members of the organisation were arrested, he was reported to the Government and the Government began to investigate him. He moved residence and came to Australia on 2002 with the help of his friends. The only additional specific claim made in the lengthy written submission to the Tribunal was that he feared persecution as a Falun Gong practitioner and that his fears stemmed principally from the fact that he taught Falun Gong to other people.

5. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. The Tribunal did accept that the applicant was a citizen of the Peoples Republic of China but found his claims to be very vague and general and, in effect, to amount to nothing more than unsupported allegations. The Tribunal set out particular inadequacies in the information provided by the applicant in relation to his personal knowledge of Falun Gong, his practise of Falun Gong in China or Australia, the absence of documentary evidence and the absence of detail as to how and when he introduced 18 people to Falun Gong. The Tribunal also considered the applicant's claim that the Government began to investigate him in May 2000, noting the limited information provided, the absence of evidence as to what steps the Government took, how he found out an investigation was taking place or what outcome there was of the investigation. The Tribunal also noted the applicant's continued residence at the same address and the absence of any claim or evidence that the authorities ever came to his home looking for him. It found that these factors suggested the Government had no adverse interest in him and that he was not particularly afraid. The Tribunal found that if the authorities had had any interest in arresting, questioning or detaining the applicant they could have attended at his home. Further, the applicant had not claimed and there was no evidence to suggest he had encountered any problems obtaining a passport or exiting the country using his own passport. According to independent evidence referred to by the Tribunal this indicated that such a person was of no interest to the Chinese authorities. Finally, the Tribunal referred to the absence of any real detail about the applicant's claim to fear harm from his supposed association with Falun Gong. It noted his failure to attend the scheduled hearing and present oral arguments and evidence and that the Tribunal had no opportunity to obtain further information from the applicant as to his knowledge of and commitment to Falun Gong and was not able to question him to ascertain answers to the questions raised through his written claims. Nor had he provided any documentary evidence in support of his claims. The Tribunal concluded that it could not be satisfied on the evidence before it that the applicant was a genuine adherent of Falun Gong or that he would face harm in the reasonably foreseeable future on return to the PRC. In conclusion, it could not be satisfied that the applicant had a well founded fear of harm for reason of his religion or for any other Convention reason in the reasonably foreseeable future in China.

6. The applicant sought review of the decision by application filed in this court on 21 April 2004. In that application the applicant repeated his claim to be a refugee and addressed the merits of the Tribunal decision, expanding on his claims. He did not file any written submissions. However at the commencement of the hearing the applicant indicated that his complaint was that the Tribunal did not give him another opportunity to appear for a hearing and that he had been absent from the hearing because he was ill. He did not provide any evidence in support of this claim. He told the court that he did not notify the Tribunal of his illness.

7. As the Tribunal reasons for decision record, no response was received to the invitation to hearing letter. In those circumstances the applicant's complaint does not establish any jurisdictional error. The Tribunal properly notified the applicant of the hearing in accordance with its obligations under sections 425 and 425A of the Migration Act 1958 and, in accordance with section 426A, as the applicant had been invited but did not appear, the Tribunal was able to make a decision without taking any further action to allow or enable the applicant to appear before it. No jurisdictional error either in the form of a failure afford procedural fairness or a failure to comply with procedures is apparent in of the manner in which the Tribunal proceeded. In particular, there was no obligation on the Tribunal to offer a second hearing. There is nothing on the material before me to suggest the applicant sought a postponement or adjournment of the hearing.

8. More generally, the Tribunal findings were open to it on the material before it. To the extent that the Tribunal relied on independent country information, such information is not within s424A(1) being within the exclusion of section 424A(3)(a) of the Act. (See Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264). Moreover, relevant country information was relied upon by the delegate and indeed independent information in relation to the situation of Falun Gong in China was addressed at length in the very general submission made by the applicant in writing to the Tribunal.

9. The Tribunal considered all of the claims made by the applicant. Its conclusion that it could not be satisfied that the applicant was a genuine adherent of Falun Gong or would face harm in China was open to it on the limited, vague and general material before it. No jurisdictional error is apparent in the reasons or procedures of the Tribunal. Accordingly the application must be dismissed. I will hear submissions in relation to costs.


RECORDED : NOT TRANSCRIBED

10. As the applicant has been unsuccessful it is appropriate that he meet the costs of the respondent. There is nothing in the material before me to warrant to any departure from the usual rule that the unsuccessful applicant should meet the costs of the respondent. The applicant's lack of money is not a reason for not awarding costs, although it may be a matter taken into account by the respondent in determining how and when to seek to recover any costs. In light of the nature of this and other similar matters, I consider that the amount of $3,500 is appropriate.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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