SZBRR v Minister for Immigration

[2005] FMCA 1218

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBRR v MINISTER FOR IMMIGRATION [2005] FMCA 1218

MIGRATION – Review of decision of RRT – where the Tribunal was unable to come to a state of satisfaction that the applicant should be granted a protection visa – where the applicant did not present any probative evidence – where the applicant did not take up the opportunity to give oral evidence as invited.

Migration Act 1958, ss.426A, 56, 424A(1)
Federal Magistrates Court Rules 2001, Part 21 Rule 21.02(2)(a)

Paul v Minister for Immigration [2001] 113 FCR 396
VAF v Minister for Immigration [2004] 206 ALR 471
SZDFO v Minister for Immigration [2004] FCA 1192

Applicant: SZBRR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2219 of 2003

Judgment of: Raphael FM

Hearing date: 18 August 2005

Date of Last Submission: 18 August 2005

Delivered at: Sydney

Delivered on: 18 August 2005

REPRESENTATION

Counsel for the Respondent: Ms P Sibtain

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent's costs assessed in the sum of $4000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2210 of 2003

SZBRR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the Chinese Peoples Republic.  She arrived in Australia on 24 June 2002.  On 9 July 2002, she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 2 August 2002, a delegate of the Minister refused to grant a protection visa, and on 27 August 2002, the applicant applied for review of that decision.  The applicant was represented by a migration agent. On 3 July 2003, the Tribunal wrote to the applicant and to her migration agent, informing her that the Tribunal had considered the material before it in relation to her application, but was unable to make a decision in her favour on that information alone.

2. The Tribunal invited the applicant to a hearing on 26 August 2003.  The Tribunal indicates that no response to that hearing letter was received but it is not suggested that the proper procedures for sending that letter were not complied with, nor that it was not received by the applicant's migrant agent, an authorised recipient.  On 27 August 2003, the Tribunal determined to affirm the decision of the delegate, and it handed down that decision on 23 September 2003.

3. The applicant's claim to have a well founded fear of persecution for the Convention reason of imputed political opinion arises out of the disappearance of her husband, and her being taken into custody by the police and there assaulted.  Her story concerning these difficulties which she experienced in her homeland is contained in an unsigned letter written in English received by the Department on or about 9 July 2002. In her application to the Tribunal, found at CB [46], the applicant says:

   “Due to my past experience and my husband's involvement in politics, I am fear about our safety in life.  I am fear of going back to China because I believe I will be persecuted upon returning to China.  The current situation in China is still uncertain, and the human rights condition is very poor.  The authority is dictatorship, and would not give any freedom to its people.  I believe my husband has been persecuted by the Chinese authorities and as a member of his family I am fear of going back because I would have the same fate as him.”

4. The Tribunal in its decision which commences at CB [62] and concludes at CB [69], notes the claims made by the applicant. It also notes that she was invited to attend a hearing because those claims had failed to satisfy the Tribunal and that she had not done so. The Tribunal proceeded to its decision pursuant to the provisions of s.426A of the Migration Act 1958 (Cth) (the “Act”). At CB [66] the Tribunal says:

   “The applicant has provided no detail as to which political persuasion her husband allegedly belongs, whether he is associated with Falun Gong or some other marginalised group.  She has provided no details as to where and when the alleged incident involving her took place or, indeed, where the alleged search took place as she has not provided her residential address in her application.”

   The Tribunal then proceeds to cite independent country information about the ability to leave China if one is a person of interest to the Authorities.  In its findings and reasons, which commence at CB [67] and conclude on the next page, the Tribunal notes:

   “The application is very general and lacks the necessary detail upon which the Tribunal needs to establish the relevant facts in an application of this type.  There has been no details as to the identity of the political group, to which the applicant's husband belongs, or the extent or level of his involvement, although the lack of detail would indicate a lack of authenticity in the application ...  Further apart from the bland assertions as to what has happened to the applicant (and vis the husband) no details either as to her alleged detention or her husband's political affiliations have been disclosed.  On the balance of probabilities, the Tribunal finds that the fear of persecution for a Convention based reason is not actually based.”

   The reference to bland assertions is possible unfortunate. The applicant describes in her statement a serious state of affairs which no one would wish to have happen to them. The reference to the balance of probabilities is also unfortunate. It reveals a lack of understanding of the requirements of the legislation and the conventions. But these criticisms aside, it is clear that the Tribunal came to its conclusion that the applicant was not a person to whom Australia owed protection obligations because the Tribunal was not satisfied, as required under s.65 of the Act. The lack of satisfaction came about because the applicant had provided too little information to the Tribunal and had not taken the opportunity offered to her to persuade the Tribunal by her oral evidence that a state of satisfaction could be reached.

5. I appreciate that in describing the Tribunal's reason for affirming the decision under review in the way in which I have I might be accused of failing to "unbundle" the immediate reason for the purposes of s.424A(1) in the manner considered in Paul v Minister for Immigration [2001] 113 FCR 396, VAF v Minister for Immigration [2004] 206 ALR 471 at [31] but I do not think that that is a valid criticism in this case. Any tribunal would be reluctant to be satisfied on the basis of an unsigned letter making assertions that were so poorly detailed as to even indicate the place at which these events are alleged to have occurred or where the applicant lived. The Tribunal makes this clear at CB [68] where it says:

   “The lack of detail and substance of the information before the Tribunal in supporting the application, the ICI which conflicts with that implied by the application and the conflict in the information contained in the application has led the Tribunal to the conclusion that the claim is not genuine.”

   Again, perhaps the Tribunal has gone further than it needed in making a positive finding.  It could also be said that the Tribunal went further than it needed in making reference to the fact that on the totality of the evidence before it the applicant had no subjective fear of persecution.  There must now be some considerable doubt as to whether this is alone enough to substantiate an unfavourable decision given the New Michigan Guidelines on Well-Founded Fear promulgated by Professor Hathaway 26 MICH. J. INT’L L. 491 (2005). As I have said I do not believe that this will avail the applicant because of the central failing identified by the Tribunal and based upon the complete lack of any evidence of a probative character.

6. In her representations to me today the applicant informed me that she would be in danger if she returned to China and that she was very scared.  She told me that the things that were mentioned in the letter had really happened.  In this regard I can only repeat what fell from Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 at [12]:

   “It should be plain, I hope, from what I have said that if it is simply outside my statutory authority and judicial authority to make up my own mind as to whether Australia owes the appellant protection obligations.”

   My situation is the same as his Honour's.

7. I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: