BRGAF of 2009 v Minister for Immigration
[2010] FMCA 147
•4 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRGAF OF 2009 v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 147 |
| MIGRATION – Refugee Review Tribunal – application for review. |
| Migration Act 1958 (Cth), ss.425, 476 |
| Applicant: | BRGAF OF 2009 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 785 of 2009 |
| Judgment of: | Jarrett FM |
| Hearing date: | 12 February 2010 |
| Date of Last Submission: | 12 February 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 4 March 2010 |
REPRESENTATION
| The Applicant appeared in person: |
| Counsel for the Respondents: | Mr Yuile |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application filed on 2 November, 2009 be dismissed;
The Applicant pay the First Respondent’s costs fixed in the sum of five thousand dollars ($5,000.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 785 of 2009
| BRGAF OF 2009 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted to the Applicant, pursuant to s 476 of the Migration Act 1958 (Cth) in respect of the decision of a Refugee Review Tribunal made on 6 October, 2009. The decision was to affirm a decision of a delegate of the First Respondent not to grant the Applicant a Subclass 866 (Protection) visa.
The application specifies three grounds upon which relief is sought. Those grounds are:
1. RRT refusal decision is not fair. They use more negative cases to refuse my application.
2. RRT failed to assess my risk to return to China. I am Falun Gong Practitioner. I will be put in jail if I return.
3. I am not satisfied with RRT decision. They did not believe the whole things I said are true.
Background
The Applicant is a citizen of China. He was granted a student visa (subclass 570) to enter Australia on 31 December, 2008. He arrived in Australia using that visa on 21 January, 2009. Since arriving in Australia, he has returned to China once on 1 April, 2009. He returned to Australia on 30 April, 2009.
On 11 May, 2009 the Applicant applied for the visa the subject of the decision under review in this case. Included with his visa application was a three page statement, written in Chinese characters, setting out his claims for refugee status.
On 2 July, 2009 a delegate of the First Respondent wrote to the Applicant to request that he attend an interview at the Department of Immigration and Citizenship to take place on 16 July, 2009.
On 13 July, 2009 an e-mail was received by the Department from the Applicant indicating that he would not be able to attend the interview as he was not in Sydney “at that moment”.
On 16 July, 2009 the Delegate decided to refuse to grant the Applicant a visa on the basis that he was not satisfied that the Applicant was a person to whom Australia owed protection obligations under the Act. The Applicant was notified of that decision under cover of letter dated 16 July, 2009.
On 10 August, 2009 the Applicant lodged an Application for Review with the Tribunal. I accept the First Respondent’s submission that no new claims were presented with that Application.
On 21 August, 2009 the Tribunal wrote to the Applicant to tell him that it had considered the material before it, but was unable to make a favourable decision on that material alone. The Tribunal therefore invited the Applicant to appear before the Tribunal to give evidence and present arguments in relation to his case. The hearing was scheduled for 22 September, 2009. The invitation also enclosed a “Response to Invitation” form, and requested that the Applicant indicate whether he intended to attend the hearing.
On 4 September, 2009 the Tribunal received a fax from the Applicant indicating that he would attend the hearing. On 21 September, 2009 the Tribunal received a fax from a person identifying themselves as “Lin”, a friend of the Applicant. The fax informed the Tribunal that the Applicant was being detained in Queensland, and he was therefore unable to attend the Tribunal hearing. The fax sought a postponement of the hearing. The only contact detail given on the fax was an email address. Attached with the fax was an “Undertaking as to Bail” naming the Applicant as the defendant, and listing the Applicant’s residential address as the “Arthur Gorrie Correctional Facility”.
The Tribunal subsequently sought to confirm that the Applicant was still incarcerated at Arthur Gorrie. The Tribunal was told that the Facility had no record of him. A further telephone call to the Queensland Prisoner Locations Line revealed that the Applicant had been released, but an address could not be provided for privacy reasons.
On 22 September, 2009 the Tribunal wrote to the Applicant at the e-mail address provided in the fax. The Tribunal asked that the Applicant urgently telephone or e-mail the Tribunal, giving the appropriate contact details. The Tribunal also provided a form for Appointment of a Representative, and noted that the Applicant had to lodge a written authorisation for another person to act on his behalf before such a person could so act.
The Tribunal did not receive any response to that request from the Applicant or the person known as Lin. It was a condition of the Applicant’s bail set out in the Undertaking as to Bail sent by Lin that the Applicant was to report daily to the Inala Police Station. The Tribunal attempted to contact the Applicant through the Police at the Inala station. The Tribunal was told that the Applicant was known to officers at the Inala station and that those officers agreed to hand the Applicant a fax from the Tribunal.
The Tribunal sent a fax to the Applicant, care of the Inala Police Station, on 1 October 2009. The fax informed the Applicant that the Tribunal wished to speak with him urgently, and asked that he contact the Tribunal as soon as possible. The letter also enclosed a form to appoint a representative. The letter informed the Applicant that if no response was received by the next day, 2 October, 2009 the Tribunal might proceed to a decision without taking any further action.
By 6 October, 2009 the Tribunal had not received any response from the Applicant and so proceeded to make its decision. On 6 October, 2009 the Tribunal decided to affirm the decision of the Delegate. On 2 November, 2009 the Applicant filed this application with the Federal Magistrates Court.
The Tribunal’s decision
The Tribunal’s decision record sets out the relevant law and the statutory framework against which the Applicant’s review needed to be determined. No complaint is made about that aspect of the decision.
The reasons identify that the “applicant’s refugee claims” were:
a)That he was a Falun Gong practitioner;
b)That he had experienced persecution in China;
c)He developed his interest in Falun Gong after being introduced to it by a neighbour at a time when his health was poor, he was finding it hard to find work and keep jobs, and had become almost a recluse;
d)After practicing Falun Gong for forty days his health and attitude improved. He increased his practice and joined a group of likeminded individuals;
e)He participated in “talk out the truth” activities and shared his experiences and knowledge with friends. He handed out leaflets on the street.
f)On 4 August, 2008 he and others were arrested while handing out leaflets. The Police beat them up. He was locked up and forced to watch “anti-Falun Gong video” and to write a letter of confession. He refused to comply and the Police punished him. They threatened him and his family. He was detained for about half a month and released after he signed a promise not to practice Falun Gong and paid RMB 8;000.
g)He was unable to find work after he returned home and the local police often called by his home and monitored him. Friends and neighbours avoided him.
h)He found life hard not being able to work or practice Falun Gong.
The Tribunal accepted that the Applicant had PRC nationality and that his claims should be assessed against that country.
After noting that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is well founded or that it is for the reason claimed, the Tribunal pointed out that it was for the Applicant to satisfy the Tribunal that all of the relevant statutory elements were made out.
The Tribunal then identified that the applicant’s statements contained a number of vague, unsubstantiated assertions. The Tribunal identified five matters that it considered to be insufficiently supported by appropriate information.
The Tribunal’s decision is summarised in the following paragraphs:
41. On the limited evidence before it, and without further details and clarifications, the Tribunal is not satisfied that the applicant has any interest in Falun Gong, actual or perceived. The Tribunal is also not satisfied that the PRC authorities have arrested, detained, mistreated or otherwise shown any adverse interest in the applicant, whether as a Falun Gong practitioner (actual or perceived), or for any other reason. The Tribunal is also not satisfied that the authorities have made any threats to the applicant's family, either directly or as a warning to him. On the material before it, the Tribunal is not satisfied that the applicant faces a real chance of Convention-related persecution.
42. The Tribunal is therefore unable to be satisfied that the applicant has a well-founded fear of persecution for one or more of the Convention reasons, now or in the reasonably foreseeable future, if he returns to China.
Ground 1
The Applicant alleges that the Tribunal’s decision was not fair, and that the Tribunal “use more negative cases to refuse my application.” There is no particularisation of this ground. I accept the First Respondent’s submission that this ground reflects an unhappiness or disappointment with the Tribunal’s decision, rather than identifying any jurisdictional error.
I also accept the submission that the Tribunal set out in some depth the relevant law, as reflected in the Act, the Convention Relating to the Status of Refugees, and the applicable case law. No error of approach or principle is apparent on the material.
The Tribunal’s conclusion that the Applicant was not a person to whom Australia had protection obligations was open to the Tribunal on the material before it having regard to the Tribunal’s lack of satisfaction of the relevant claims made by the Applicant.
The First Respondent points out that the High Court has noted: “what is required by procedural fairness is a fair hearing, not a fair outcome ... It is, therefore, not to the point to ask whether the Tribunal’s factual conclusions were right. The relevant question is about the Tribunal’s processes, not its actual decision” (SZBEL v MIMIA (2006) 228 CLR 152 at [25]-[26]).
I accept the First Respondent’s submission that the Tribunal has complied with all of its procedural fairness obligations under the Act. Having decided that the Applicant’s claim could not be decided favourably on the papers, the Tribunal invited him to a hearing, pursuant to s.425 of the Act. The Applicant indicated that he would attend, but then failed to appear. The Applicant did not, at any point, contact the Tribunal personally.
The only contact with the Tribunal was the fax from Lin. Lin, however, was not an authorised representative of the Applicant. In order to facilitate Lin becoming such a representative, the Tribunal emailed him the appropriate form. A completed form was never received.
The Tribunal member made further attempts to engage the Applicant but was unsuccessful in doing so. Section 426A of the Act allows the Tribunal to make a decision on a review without taking any further action to allow or enable the Applicant to appear before it, if the Applicant fails to appear at a hearing following an invitation under s.425. I accept that in the circumstances the Tribunal was entitled to act as it did and to proceed to a decision.
Ground Two
By this ground, the Applicant alleges that the Tribunal failed to assess the risk of him returning to China. He also reiterates his claim that he is a Falun Gong practitioner, and that he will be jailed if returned to China.
The Tribunal was not obliged to accept the Applicant’s claims uncritically or unreservedly and did not. By reason that it was not satisfied of those claims, there was no need to assess the risk of him returning to China.
The Tribunal made findings on all of the claims made by the Applicant. It was not satisfied, however, that those claims were made out. No jurisdictional error is made out.
Ground Three
This ground is similar to the grounds one and two in that it seeks to express dissatisfaction with the Tribunal’s findings of fact.
The Tribunal assessed the limited material provided by the Applicant, but did not accept his claims. In the Tribunal’s view the Applicant’s assertions were largely vague and unsubstantiated. The Applicant failed to provide sufficient information to satisfy the Tribunal that the claims were true.
The weight to be given to the evidence before the Tribunal is a matter for it. The Applicant seeks a merits review and that is impermissible on this application.
Conclusion
No jurisdictional error is established by the Applicant. The application must be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 4 March 2010
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