FEDERAL COURT OF AUSTRALIA

SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214

SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs

N 1859 of 2004

JACOBSON J

3 MARCH 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed; and

2.         The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Federal Magistrate Barnes given on 25 November 2004 dismissing an application for review of a decision of the Refugee Review Tribunal (“the RRT”) handed down on 23 March 2004.  The RRT affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa.  The appellant is a citizen of the Peoples Republic of China who arrived in Australia on 23 February 2003.  He lodged an application for a protection visa on 3 March 2003.  The applicant claimed to have a well- founded fear of prosecution by reason of his membership of the Falun Gong.  He provided a statement of his claimed involvement in Falun Gong in support of his application but no other documents were provided in support.  On 20 May 2003 the application was refused by a delegate of the Minister.

2                     The RRT set out the effect of the evidence.  The applicant claimed to have begun practising Falun Gong in 1997 as a means of achieving better health and inner peace.  He claimed to have been detained in October 1999 by the authorities because he "tried to clarify the truth to the government" and he said that for the following three years he was harassed by local authorities and police.  He claimed that his home was ransacked on many occasions and that he was forced to leave home.  The appellant also claimed that he was caught on 12 July 2002 handing out Falun Gong material and that he was taken to a police station.  He said he was interrogated and tortured by more than 10 officers from the "610 office".  He claimed that he was beaten seriously and electric batons were used to shock all the sensitive areas of his body.

3                     The applicant went on to claim:

“They pulled one of my arms over my shoulder and pulled my forearm down behind my back.  They then swung my other arm behind my back ad pulled that forearm up so that my two hands were close to each other.  They then tied my hands together using electric wires.  With me facing downward, they hung me from the ceiling using ropes.  To make me suffer even more pain, they attached more than 10 kilograms of books and newspapers to my body.  More than ten people pushed me around like a swing.  I was suffering such unbearable pain that I almost fainted.  But they poured water on me and flushed water down my throat.  I was suffocating and coughing so hard that my chest was cramping with extreme pain.  Just when I thought I could not bear the torture any longer, I yelled, ‘You are not allowed to persecute Falun Dafa practitioners!’  At that time, my two arms miraculously changed to the normal pointing up position.  Even though I was still hanging by my arms, my feet were touching the floor.  The scene scared all the abusers.  ‘Strange, what is going on here?’ they were all muttering to themselves.  They were so frightened that they put me down in a hurry.

At night, these abusers were tired, so they cuffed me to a steel chair for the night.  I was badly beaten because I refused to sit on the steel chair.  In order to extract the information that they wanted from me, they even tried to force feed psychotropic drugs to me.  I stood firm and did not cooperate.  In the end, they did not succeed in feeding me the drugs.

‘If you don’t give us the information,’ the policeman JIANG Zhe said, ‘We will take off all your clothes and take nude pictures of you.  We will then distribute the pictures for everyone to see.  JIANG works for the political security section of the Tianjin city police department.  At that time I cannot take care of myself, and I must depend on other people to help me.  I went on a hunger strike.  I recovered quickly because my family took good care of me and I still practice Falun Gong.  My wife and my parents were afraid that the police would put me into jail again.  Thus, they tried their best to help me to go to overseas.”

4                     On 12 December 2003 the RRT wrote to the applicant advising him that the RRT had considered all the papers relating to his application but that it was unable to make a favourable decision on that information alone.  The RRT invited the applicant to attend an oral hearing on 11 February 2004.  The appellant was advised that if he did not attend the hearing the RRT could make a decision on his case without further notice.  The RRT noted in its decision that no response was received from the appellant and that the appellant's Departmental and RRT files were checked for more recent addresses.  However, no further details appeared on the files and the applicant had not provided a telephone number. 

5                     The appellant did not appear before the RRT on 11 February 2004 and the RRT determined the application on the evidence which was available to it.  Pursuant to s 426A of the Migration Act 1954 (Cth) (“the Act”) the Tribunal decided to make a decision on review without taking any further action to enable the appellant to appear before it.  The RRT observed that it had significant problems with the appellant's claims which it said were expressed in general terms and which did not provide essential details.  The RRT said that the applicant had provided "scant details".  The RRT said in particular that the appellant had not provided information as to when, exactly how, and under what circumstances he became involved in Falun Gong and that he had provided no details in relation to his activities as a Falun Gong practitioner in China.  The RRT also said that the appellant's claims regarding his arrest and detention in July 2002 "also lacked detail".

6                     The RRT found that given the generality of the appellant's claims, without more information it was difficult to know what significance could be attached to his assertions.  It noted that the appellant had been put on notice of the delegate's decision that his fear of persecution was not well-founded and yet the appellant had not sought to challenge the decision in a meaningful way.  The RRT concluded that the appellant had not provided sufficient information to enable it to be satisfied that he had suffered persecution in the past or that he faced a well-founded fear of persecution for a convention reason.

7                     The Federal Magistrate noted at [4] of her decision that in his oral submissions in the Federal Magistrate's Court the appellant did not dispute having received the letter from the RRT dated 12 December 2003.  Her Honour said that the appellant indicated that he did not attend the RRT hearing because he was ill but he did not notify the Tribunal.  The essence of the Federal Magistrate's decision is set out at [8] of her reasons for judgment which I will set out in full as follows:-

“He repeats his claim to fear persecution and that his fear is well founded and seeks a decision that he is 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.”.

8                     The learned Federal Magistrate then went on to consider, in view of the fact that the appellant was unrepresented before her, whether there was any jurisdictional error apparent on the material before the court.  In particular she considered whether there was anything in the material before her to suggest that the RRT had failed to comply with its obligations under s 425 of the Migration Act in relation to the invitation to the applicant to attend the hearing. 

9                     The Federal Magistrate observed that the letter sent on 12 December 2003 complied with the requirements of the Act and that the applicant did not dispute that he had received notification of the hearing.  The Federal Magistrate then concluded that the appellant's failure to attend the hearing did not establish jurisdictional error.  The notice of appeal filed by the appellant on 14 December 2004 contains very general grounds of appeal as follows:-

“2.       I fear persecution from my original country.

            I believe my fear is well-founded.

            I was persecuted by the Chinese Government because I am a Falun Gong practitioner.”

10                  The appellant appeared in person this morning.  The only submissions he put to me went to the merits of his claim before the RRT.  He said that if he goes back to China, the government will put pressure on him and that he fears for his life and family.  Although the notice of appeal on the submissions were very general, I understood the appellant's argument to be to the effect that the Federal Magistrate erred in her conclusion that there was no jurisdictional error on the part of the RRT.

11                  The RRT considered the only material that was put before it in order to decide whether it should reach the necessary state of satisfaction under s 36(2) of the Act.  It was for the appellant to advance whatever evidence or argument he wished to advance in support of his contention that he had a well-founded fear of persecution for a convention reason, see Abebe v The Commonwealth (1999) 197 CLR 510 at [187].  See also Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 per Kirby J. 

12                  It might be thought that the applicant had provided more than scant details of the torture to which he said he was subjected on 12 July 2002.  However, the RRT observed that the applicant provided no information on other matters such as how he became involved with the Falun Gong.  In S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 (“S58”) a Full Court (Merkel Ryan and Conti JJ) said at [25] that:-

“An applicant who has deliberately declined to attend a hearing before the RRT to which he was invited must be taken to assume the risk that inconsistencies or other unsatisfactory features of the documents would be noted by the RRT without the applicant having an opportunity to explain or clarify them.”

13                 Their Honours referred at [26], with apparent approval, to the following observation of a Full Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511:-

“There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so.  An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward." 

14                  Ryan, Merkel and Conti JJ, went on to say that in their view the appellant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about his claims.  Their Honours said that the applicant in that case could not complain if his application was rejected because amongst other reasons he failed to take up the opportunity.  See also to similar effect NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 346 at [10] – [12] (Allsop J).

15                  It follows from what was said in the authorities to which I have referred that there is no error in the learned magistrate's conclusion that the RRT's finding that it was not satisfied that the applicant had a well-founded fear was open to it on the material put before the RRT. 

16                  The solicitor for the Minister referred me to a decision of Gray J in VSAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1270 (“VSAF”).  His Honour there came to the view that the failure of the RRT to schedule another hearing after the applicant requested an adjournment amounted to jurisdictional error; see [30].

17                  However, it seems to me the decision in VSAF is distinguishable from the present case.  In VSAF the applicant contacted the RRT by telephone on 10 June 2003 to request a hearing schedule for 11 June 2003.  The RRT asked the applicant to provide some evidence of the reason for his inability to attend by the close of business on 12 June 2003; see [13].

18                  His Honour found at [22] that the applicant had been given the impression that the hearing would be postponed.  That is not the case in the present matter where the applicant was specifically informed that if he did not attend the scheduled hearing a decision may be made without further notice.  This course and the decision which was taken by the RRT to make its decision without taking any further action to enable the appellant to appear was in accordance with s 426A of the Act.  It follows in my view that the Federal Magistrate was correct in finding that the fact that the appellant failed to attend the hearing did not constitute jurisdictional error.

19                  I should add that I have been unable to find any authority in which Gray J’s decision has been referred to.  I am informed by the Minister's solicitor that the decision is under appeal.  It is unnecessary for me to say anything further about that decision.

20                  Accordingly the orders I will make are that the appeal be dismissed with costs.

Associate:

Date:                9 March 2005