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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming persecution in China as a Falun Gong practitioner - asserted bias and lack of evidence - no reviewable error found - application dismissed.

SZAVV v Minister for Immigration [2004] FMCA 679 (6 October 2004)

SZAVV v Minister for Immigration [2004] FMCA 679 (6 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAVV v MINISTER FOR IMMIGRATION
[2004] FMCA 679




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming persecution in China as a Falun Gong practitioner - asserted bias and lack of evidence - no reviewable error found - application dismissed.




Applicant:
SZAVV




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1164 of 2003




Delivered on:


6 October 2004




Delivered at:


Sydney




Hearing date:


6 October 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:


Mr B Cramer

Blake Dawson Waldron




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1164 of 2003

SZAVV



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 28 April 2003 and handed down on 21 May 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and made claims of persecution as a Falun Gong practitioner. The relevant background facts are set out briefly in paragraphs 2 to 8 of written submissions prepared on behalf of the Minister by Mr Cramer. I adopt those paragraphs for the purposes of this judgment:

The applicant is a Chinese national who claims to be an active member of the Falun Gong Association in China. He claims to fear persecution on this basis as Falun Gong has been banned by the Chinese government and he has been involved in activities promoting Falun Gong and challenging the government, such as presenting petitions to the government in Beijing.[1]

RRT's decision

On 13 March 2003 the RRT wrote to the applicant and his agent inviting the applicant to attend a hearing on 28 April 2003 as the RRT was not satisfied based upon the information currently before it that the applicant was entitled to a protection visa.[2]

The applicant replied on 7 April 2003 informing the RRT that he did wish to attend the hearing.[3]

However, the next day the applicant's agent sent the RRT a facsimile attaching an amended response to hearing invitation and informed the RRT that the applicant no longer wished to attend the hearing.[4]

The RRT therefore proceeded to make a decision on 28 April 2003.

The RRT found that the claims made by the applicant were too vague to allow for appropriate findings of fact[5] and that on this basis it was therefore not convinced that the applicant had a well-founded fear of persecution if he were to return to China.[6]

The RRT noted that the applicant had been made aware of the fact that the RRT would not be willing to find in his favour if he did not attend a hearing but he nevertheless refused the invitation.[7]

2. The application for judicial review raises two grounds. These are an allegation of actual bias and an allegation that there was no evidence to justify the decision. Neither ground is particularised. In the absence of particulars and evidence, there is no substance to the allegation of actual bias and I reject it. Such allegations are too readily made and too seldom supported. Neither is there any substance to the asserted no evidence ground. The RRT was not satisfied on the material before it that the applicant qualified for a protection visa. The material on which the RRT made its decision was the material the applicant chose to present. The presiding member also had regard to country information. It is clear from the decision of the RRT that it was open to the presiding member to reach the decision she did based upon the material before her.

3. The applicant filed a document on 29 September 2003 which, in effect, raises an additional ground of review. In substance, the applicant asserts procedural unfairness. The applicant is concerned that he missed an opportunity to attend a hearing before the RRT. He says that he wanted to attend but was unable to attend. The applicant provided some more information about this ground orally today. After some prompting, he told me that he was in Perth at the time of the RRT hearing and had work commitments that prevented him returning for the hearing. The court book shows that on 13 March 2003, the RRT wrote to the applicant and to his migration agent Orchid Sit.

4. The RRT advised that it could not make a favourable decision on the material before it and invited the applicant to a hearing on 28 April 2003. The applicant was therefore given well in excess of one month's notice of the hearing. He was also put on notice that his application for a visa would probably be unsuccessful if he failed to attend. On 7 April 2003, Orchid Sit, on behalf of the applicant, sent a response to hearing invitation form to the RRT stating that the applicant wished to attend and would require a Mandarin interpreter. The following day, that is, 8 April 2003, Orchid Sit sent a handwritten facsimile to the RRT stating that the applicant had changed his mind and would not attend. This was confirmed by an amended "response to hearing information" form faxed to the RRT the same day.

5. It appears in the circumstances that the applicant decided 20 days before the hearing that he would not attend. He tells me that this was on the basis of work commitments in Perth. However, if there were such commitments which prevented the applicant from attending, there is no evidence that they were made known to the RRT. If the RRT was not put on notice of circumstances that might warrant an adjournment, the RRT could not do anything about it. I find that the applicant voluntarily gave up his right to a hearing before the RRT.

6. In the circumstances, there was no procedural unfairness. There is, in my view, no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision that cannot be reviewed further.

7. Accordingly, I will dismiss the application.

8. On the question of costs, the application having been dismissed, Mr Cramer seeks an order for costs. Mr Cramer tells me that the Minister has incurred costs on a solicitor and client basis of approximately $3,000. On a party/party basis, he seeks a costs order fixed in the sum of $2,500. The applicant was concerned not so much with the general principle of a costs order but with the issue of whether he would be obliged to pay costs pending the outcome of an appeal. I will not require costs to be paid by any particular time. In the circumstances, payment of costs can properly await the outcome of any appeal.

9. I am satisfied that on party-party basis an award of costs fixed in the sum of $2,500 will be appropriate. I will therefore order that the application is dismissed and that the applicant is to pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 13 October 2004


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[1] court book, pages 14, 58.

[2] court book, page 61.

[3] court book, page 65.

[4] court book, pages 66-7.

[5] court book, page 80.2.

[6] court book, page 80.2.

[7] court book, page 74.5.
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