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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant a Falun Gong practitioner claiming persecution in China - no substance to grounds of review asserted - application dismissed.

SZAYR v Minister for Immigration [2004] FMCA 804 (12 November 2004)

SZAYR v Minister for Immigration [2004] FMCA 804 (12 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYR v MINISTER FOR IMMIGRATION
[2004] FMCA 804




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant a Falun Gong practitioner claiming persecution in China - no substance to grounds of review asserted - application dismissed.




Migration Act 1958 (Cth), s.426A

Applicant:
SZAYR




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1366 of 2003




Delivered on:


12 November 2004




Delivered at:


Sydney




Hearing date:


12 November 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:


Mr G Kennett




Solicitors for the Respondent:


Clayton Utz




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 $3,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1366 of 2003

SZAYR



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 May 2003 and handed down on 24 June 2003. The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. The applicant is from China. She made claims of persecution based upon her practise of Falun Gong. The relevant background facts are set out in written submissions prepared on behalf of the Minister by Mr Kennett. I adopt paragraphs 1 through to 7 of those submissions for the purposes of this judgment:

The applicant is a citizen of the Peoples Republic of China[1] who arrived in Australia on 30 March 2002. On 5 April 2002 she applied for a protection visa and this application was rejected by a delegate of the Minister on 12 June 2002. On 27 June 2002 she applied for review of that decision by the RRT.[2]

On 24 June 2003 the RRT handed down its decision affirming the decision of the delegate.[3]

The applicant claimed to have been an adherent of Falun Gong in China. She said that her husband had promoted Falun Gong and she had helped him. In 1999 they had both been placed in detention and mistreated. Her husband had later been to Beijing and she had been repeatedly visited by the Police. She feared arrest and further mistreatment by the authorities.[4]

On 29 May 2003 the RRT wrote to the applicant, inviting her to attend a hearing. The first paragraph of that letter said that the RRT had considered the material before it "but is unable to make a decision in your favour on this information alone".[5] The applicant declined the invitation to attend a hearing.[6] The RRT proceeded to make its decision.[7]

The RRT noted that it had only the applicant's written material, consisting of unsubstantiated assertions, to support her claims of having been involved in Falun Gong. Those claims were vague and general in relation to her experiences in China and did not indicate whether she practised Falun Gong in Australia. The material did not allow the RRT to be satisfied that she had even been a member of the movement.[8]

The view that the applicant was not of any interest to the Chinese authorities was supported by independent evidence suggesting that a person who was of interest to the authorities would not be able to obtain a passport and leave China, as she had done.[9] The RRT also referred to independent information suggesting that ordinary Falun Gong adherents who practised privately were unlikely to the subject of particular attention by the authorities.[10]

Accordingly the RRT was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.[11]

2. Mr Kennett's submissions were filed on 9 November 2004. The applicant told me that she did not receive a copy of them. As is made clear below, that does not matter. It was not necessary for me to hear from Mr Kennett for the purposes of determining this application.

3. The application for judicial review filed on 17 July 2003 sets out two grounds. The first ground is that the decision of the RRT was induced by actual bias of the presiding member. There is no substance to that allegation in the absence of particulars and evidence. The applicant attended in person a directions hearing before Registrar Tesoriero on 11 September 2003. The Registrar ordered the applicant to file and serve any amended application and any evidence upon which she proposed to rely on or before 28 November 2003. The applicant has chosen not to file any amended application. Neither has she filed any evidence. Allegations of actual bias are far too readily made in migration proceedings before this Court. Unfortunately, as here, there is seldom any attempt to substantiate such allegations. There is no substance to the allegation in this case. I reject it.

4. The other ground of review is that there was no evidence or other materials to justify the making of the decision. That ground is also hopeless. That is because the applicant elected not to attend a hearing before the RRT. The response to the RRT's hearing invitation appears on page 69 of the court book. I showed that document to the applicant and she did not deny signing it. She told me that she had health problems at the time and was stressed and afraid. She lost a pregnancy. However, the applicant did not indicate to the RRT that she wanted to attend a hearing. She indicated the contrary. She did not advise the RRT that she had any health or other problem that prevented her from attending a hearing. In the circumstances, the presiding member was justified in proceeding in the absence of the applicant.

5. The only material before the presiding member was the material presented by the applicant or provided by the Minister's department (including country information on the Department's database). That material was plainly insufficient to permit the presiding member to grant the applicant a protection visa. Far from there being no evidence or other materials to justify the making of the decision that was made, there was ample evidence or other materials to justify the making of that decision. There was insufficient evidence to support the decision sought by the applicant. In the circumstances, the rejection of the application by the RRT was clearly legally sound.

6. I have myself looked at the court book. There is no jurisdictional error of any kind in the decision of the RRT. Accordingly, it is a privative clause decision. The application must be dismissed. I do dismiss it.

7. On the question of costs, the application having been dismissed, Mr Kennett seeks an order for costs fixed in the sum of $3,500. I agree that costs should follow the event. I do not agree as to the amount. The matter was a very straightforward one. It was obvious on the face of the application that the application would almost certainly fail. In the circumstances, the matter could have been disposed of at an interlocutory stage by a motion for summary dismissal. On such an application costs would have been awarded between $2,500 and $3,000.

8. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 16 November 2004


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[1] See court book, page 82.

[2] See court book, page 74.

[3] court book, page 73.

[4] See the summary at AB 76-77.

[5] court book, page 67.

[6] court book, page 68.

[7] Cf. Migration Act 1958 s.426A(1).

[8] court book, pages 82-83.

[9] court book, page 83.

[10] court book, page 83.

[11] court book, page 83-84.
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