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MIGRATION - RRT refused visa to Chinese Falun Gong practitioner - applicant did not attend Tribunal hearing - claim that invitation not received - no error in Tribunal making decision without taking further action.

SZEBH v Minister for Immigration [2004] FMCA 932 (22 November 2004)

SZEBH v Minister for Immigration [2004] FMCA 932 (22 November 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEBH v MINISTER FOR IMMIGRATION
[2004] FMCA 932




MIGRATION - RRT refused visa to Chinese Falun Gong practitioner - applicant did not attend Tribunal hearing - claim that invitation not received - no error in Tribunal making decision without taking further action.




Migration Act 1958 (Cth), ss.483A, 425(1), 426A(1), 425A, 441A(4), 441C(4)

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Applicant:
SZEBH




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 2363 of 2004




Delivered on:


22 November 2004




Delivered at:


Sydney




Hearing date:


22 November 2004




Judgment of:


Smith FM




REPRESENTATION

Counsel for the Applicant:


In Person




Counsel for the Respondent:


Mr J Potts




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) Application dismissed.

(2) The applicant to pay the respondent's costs in the sum of $4000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

Sydney



SYG 2363 of 2004

SZEBH



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application to this Court under s.483A of Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated 31 May 2004 and handed down on 28 June 2004.

2. The court's jurisdiction gives it power to order the setting aside of the Tribunal's decision only if it is satisfied that the Tribunal has made a jurisdictional error as explained by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 and subsequent cases.

3. The applicant's application for a protection visa was lodged on 25 February 2004 shortly after she arrived in Australia on a visitor's visa. Attached was a short statement which said:

My name is ... from H..., P.R. China. I came to Australia on 15 February 2004, and I would like to submit my own claim to be a refugee for the following reasons.

I am a real Falun Gong practitioner. I used to have poor health, but soon improved practicing Falun Gong in 1998 and started my cultivation in December that year. On July 20, 1999 the vicious authorities started prosecuting Dafa and Dafa practitioners. I was reported to the police and arrested by H... Police Department in May 2001. They also confiscated my cassette, cassette player, and Falun Dafa books. Policeman Y... and another policeman, whose last name is W..., took me away and I was detained in the H... detention centre for over 15 days. During that time, my husband was also detained for several days by H... Police Station.

Officer W... took the cellular phone that I had just purchased as well as 1000 yuan (local currency). My family worried about my health in the detention centre, so we sent gifts to our relations to get me out. We spent over 2000 yuan just for the dinner to treat L... and his family (L... is the one in H... Police Department in charge of the Falun Gong issue). L... also took from us five thousand yuan in cash. When I was released, I was again fined 5000 yuan. Altogether, I and my family had over 13 000 yuan extorted from them.

In later July of 2003, some one reported me again. L... broke into my home with some policemen. Without showing any ID, they confiscated two cassettes, the book Zhuan Falun, as cassette player and two booklets of the latest articles written by Mr Li Hongzhi. During those days, when dusk fell, there would be a police van parked outside my home doing surveillance. On 10 August 2003 I was arrested again and put into jail for two months. The two months of detention and persecution made me extremely weak. I even couldn't walk by myself when released.

I and my family realised that there is no way out for me in my original country. If I will stay in China, I will be put in jail again. Therefore I bribed a government officer for 80,000,000 RMB to obtain a passport and visa to Australia. Australia is a real democratic country and Falun Gong practitioners can exercise without any restriction. I hope I can stay in Australia as a refugee.

Thank you for consideration.

4. The applicant lodged an appeal to the Refugee Review Tribunal from a decision of the delegate made on 4 March 2004 refusing the application for visa. In her application to the Tribunal the applicant attached a statement repeating almost verbatim the earlier statement, but providing no further details. Although the applicant was assisted in lodging her appeal, no representative was shown on the form, which showed the applicant's home address at Ashfield and a mailing address as a Haymarket Post Office Box. The same home address had been given in the earlier application to the Department.

5. I am satisfied that on 22 April 2004 the Tribunal caused to be posted by registered post to the applicant at both her stated home address and mailing address an invitation to attend a hearing on 27 May 2004 at 2 pm at level 29 Pacific Power Building, 201 Elizabeth Street, Sydney. The invitation indicated that the Tribunal had considered the material before it, but was unable to make a decision in her favour on that material.

6. Applying the provisions of ss.425(1), 425A, 441A(4), 441C(4) of the Migration Act and Migration Regulation 4.35D(b) in relation to that letter, I am satisfied that the Tribunal had power under s.426A(1) to "make a decision on the review without taking any further action to allow or enable the applicant to appear before it" if the applicant did not appear before the Tribunal on the day, time and place notified.

7. On the evidence before me I am satisfied that this in fact happened in this case, and that when the Tribunal decided to exercise its discretion to proceed under s.426A(1) it made no error of law.

8. Not surprisingly in the circumstances, the Tribunal felt unable to be satisfied that the applicant met the criteria of refugee under the Refugee's Convention. It gave the following reasons:

24. I accept that the applicant is a Chinese national and is who she claims to be. This is so because she has presented a copy of a valid Chinese passport in her claimed own name. However notwithstanding the claims made by the applicant, I am not satisfied that the applicant either has faced persecution by reason of her practice of Falungong in China, or that she faces a real chance of persecution if she returns to China because of her practice of Falungong. This is so because the applicant has not provided any details of her claims, other than making vague and generalised assertions of what has happened to her and what is likely to happen to her if she returns to China. As such I am unable to establish the facts of the applicant's case.

25. The applicant has not provided any details at all of her Falungong practice, except vaguely to claim that she has been a genuine practitioner since 1998. She did not provide any details at all of her activities in support of her Falungong practice, except to claim that her health improved. She did not provide any specific details of her practice or any of the what, when, where and how she conducted her practice. However the applicant provided much of the detail of the adverse effects of her practice, her claimed arrests, detentions and the health affects from such detentions.

26. In light of the above, I am unable to accept that the applicant was a member or practitioner of Falungong, that she was arrested, detained and mistreated, or that she had to arrange her escape from China to avoid further arrest and detention. Accordingly, I am unable to accept that the applicant suffered persecution because of her adherence of Falungong in China, or that she would face a real chance of persecution by the Chinese authorities for her adherence of Falungong if she returned to China.

27. Accordingly, I am not satisfied that the applicant has a well founded fear of persecution for her religion or for any other Convention reason in China, or that she has a well-founded fear of persecution in the foreseeable future if she returns to China for her religion or for any other Convention reason.

9. Before me, the applicant has given evidence on affirmation that she was unaware of the hearing date and did not receive the invitation, since she had changed her home address to an address at Campsie without telling the Tribunal. She also said that she was ill at the time, and she claims that she was not told by whoever was responsible for the post office box of the invitation to attend a hearing. There is some inconsistency in her evidence about this, since she also suggested that this was the post office box of a friend, Anna Zhao, who had been helping her in her dealings with the Department and Tribunal. The applicant said that this friend told her over the phone whenever there was anything she needed to be told. Moreover, when the Tribunal sent its ultimate decision to the post box, it came to the applicant's attention in time for the present application to be brought to this Court speedily.

10. However, I do not need to make a decision on the truthfulness of the applicant, and am prepared to assume that indeed she was inadvertently not given an opportunity to attend the Tribunal hearing. However, in my opinion, since the Tribunal has followed the procedures for giving the applicant notice of a hearing under the Act, and since the procedures are exhaustive of natural justice in relation to the matter (see s.422B), there was no jurisdictional failure on the part of the Tribunal and no ground on which the applicant can be given relief.

11. I consider that I do not have power to order a further hearing by the Tribunal based on what has happened.

12. The applicant's application to this Court set out four grounds of review as follows:

1. I believe that I meet the refugee criteria

2. I would face a risk of being jailed if I go back to my original country

3. I face the risk of being jailed because I belong to a particular social group - Falun Gong

4. My fear is well-founded because I have been arrested by the Chinese Government

13. Although directed to do so at the first hearing date in this Court, the applicant did not file an amended application nor written submissions setting out her arguments before the hearing. At today's hearing, as well as giving evidence as I have indicated above, the applicant affirmed her belief that she met the definition of refugee and would face arrest if returned to China. She then recounted her reasons for that belief in terms very similar to the statement attached to her original application for visa.

14. However, as has been explained to the applicant, it is not my function to decide whether she is a refugee nor whether her statements should be accepted. That was the function of the Tribunal and, in my view, it has made no error of law and certainly no jurisdictional error in not being satisfied on the material before it that she met the qualifications for a protection visa.

15. The applicant has therefore not established any ground which would allow me to order the Tribunal's decision to be set aside.

16. I order that the application be dismissed.

RECORDED : NOT TRANSCRIBED

17. I shall order the applicant pay the respondent's costs in the sum of $4000.

18. I direct that any transcript made of the applicant's evidence should not refer to the applicant by name.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 7 December 2004
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