SZCJP v Minister for Immigration
[2006] FMCA 168
•2 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCJP v MINISTER FOR IMMIGRATION | [2006] FMCA 168 |
| MIGRATION – Review of decision of RRT – state of satisfaction – where inadequate evidence was provided by the applicant – whether the Tribunal failed to consider relevant claims made by the applicant – whether the applicant was denied natural justice – whether the decision was made in the absence of the applicant without allowing her to be heard – whether the Tribunal decision was affected by bias. |
| Migration Act 1958 (Cth), ss.36, 426A, 425, 48B |
| Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 |
| Applicant: | SZCJP |
First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 10 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 February 2006 |
| Date of Last Submission: | 2 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 February 2006 |
REPRESENTATION
| Applicant in Person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 10 of 2004
| SZCJP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the Peoples Republic of China. She arrived in Australia on 3 December 2002. On 30 December 2002, she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 28 February, 2003, a delegate of the Minister refused to grant a protection visa and on 26 March 2003 the applicant applied for review of that decision. At that time the applicant was represented by a Migration Agent and on 8 August 2003, the Tribunal received a letter from the agent advising it that it was no longer her authorised recipient. The agent provided a change of address form for the applicant purportedly signed by her giving an address in the southern part of Sydney.
On 13 October 2003, just a few weeks later, the Tribunal wrote to the applicant at the address previously given informing her that it 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. The applicant was invited to a hearing on 18 November 2003.
The applicant did not reply to that invitation. Some procedural checks were made as indicated at [CB 52] and the Tribunal proceeded to hear her case in her absence as it was entitled to do under s.426A of the Migration Act. On 20 November 2003, the Tribunal determined to affirm the decision of the delegate. It handed that decision down on
16 December 2003.
The applicant's case is found in a personal statement received on
30 December 2002 and included in the court book at [CB 26-27].
In that statement she says that she was born into a family of pious Christian Chinese who had misfortunes during the Cultural Revolution. However, her family never gave up their faith and she was brought up as a Christian. The applicant married and prior to changes in the economy of China appears to have done well, insofar as both she and her husband held responsible positions in State owned organisations. That ended when first her husband and then herself lost those positions. But the family did not give up. They commenced a small grocery business which provided sufficient profits to keep them.
Unfortunately, she claims to have run foul of a local industry and commerce administration bureau chief who, she claims, was involved in extortion and who, after not being paid a sufficient bribe upon his birthday, had the applicant arrested, kept in detention for approximately two weeks and then closed her business down on the basis that she says was associated with her Christian beliefs. The Tribunal noted all these matters but took the view that:
“On the important aspects of her claims, namely the events following the establishment of the family grocery store, the claims of the Applicant are very sketchy. While the Applicant claims that she and her husband have been persecuted by a corrupt Chinese official who used information that the Applicant is a Christian to punish her by closing the family business, she has produced no evidence whatsoever which might satisfy me that her claims of being a Christian are genuine…
Further, even if the Applicant is a Christian, there is no evidence that establishes that the Applicant does not belong to one of the two registered Christian Churches in China (Catholicism or Protestantism). No evidence is provided as to how it was that the corrupt official became aware that the Applicant and her husband are Christians. I consider it significant that the Applicant makes no claim and provides no evidence that she has been a practising Christian in Australia.
Further, no evidence has been provided which might support the claim of the Applicant that the family business has been closed down by the authorities or the reason for that closure.” [CB 64]
At [CB 65] the Tribunal expresses its decision in the following way:
“In the context of her not addressing the reasons of the delegate, not providing supporting evidence for any of her claims, the reservations I have expressed about them and her not appearing before this Tribunal to present and explain her claims in detail, I cannot be satisfied that any of the Applicant's claims are true. Because I cannot be satisfied that any of the Applicant's claims are true, I consider that I am unable to make findings of fact favourable to the Applicant in relation to the claims she has made. In these circumstances, I am not satisfied that there is a real chance that the Applicant will face Convention-related persecution in the future and therefore I am not satisfied that the Applicant has a well founded fear of persecution within the meaning of the convention.”
As Mr Smith says in his helpful economical and erudite outline of submissions, this is really a case about satisfaction. He provides the court with a quotation from Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [17]:
“We are unable to agree with his Honour's statement that "In the absence of findings as to the facts, either favourable or unfavourable to the respondent, the Tribunal could not reach the requisite state of satisfaction or the requisite state of non satisfaction". C(9). As S65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a statement of non satisfaction.”
I agree with Mr Smith that the lack of satisfaction as to the facts asserted in support of the visa application on the basis of a lack of detail of the evidence is a sufficient and reasonable basis for a decision affirming the decision on review. This is what has happened. The Tribunal has not made any findings of fact. It was merely not sufficiently addressed by the applicant's written statement. I would have liked to ask her questions about it, but was not given the opportunity. In the absence of that opportunity, it could not reach the state of satisfaction required by s.65. That really is the beginning and the end of the matter, but the applicant has filed an amended application in which she states that the Tribunal's finding on a number of jurisdictional facts was not reasonable. The views I have expressed above indicate that I believe this claim to be misconceived as it is not the Tribunal's findings that caused it to decline to grant a visa, it was the Tribunal's lack of satisfaction based upon inadequate evidence.
The amended application also argues that the Tribunal ignored certain relevant considerations in making the decision. Again the Tribunal did not ignore the claims made by the applicant, it considered them. They are all set out in the green book as are the reasons why the Tribunal has assessed that the statements do not meet the required standard.
The applicant claims in her amended application that there has been a constructive failure by the Tribunal to exercise jurisdiction but she relies upon the particulars in support of the former matters for me to come to that finding. I cannot come to that finding where the claims are made expressly, much less can I call them in aid of an alleged constructive failure.
Finally, the applicant alleges that the Tribunal denied her natural justice or procedural fairness. This is subdivided into two separate claims. The first is that the decision was made without regard to the relevant documents and without allowing the applicant an opportunity to be heard. The applicant was given an opportunity to be heard pursuant to the provisions of s.425 of the Act. She did not avail herself of them and that permitted the Tribunal to proceed in accordance with s.426A.
Before me today the applicant said that she was working as a nanny, she was residing at the home of the children she was looking after. That was why she did not receive the invitation to the hearing nor attend. I do not know whether this is so or not but I am somewhat surprised that it is raised now and has never been raised before. Why could not the applicant have written immediately to the Tribunal and informed them of this. In any event the formalities appear to have been complied with and the fact that she did not receive the invitation would not be grounds for setting aside the Tribunal's decision. The applicant has the right under s.48B of the Migration Act to ask the Minister to allow her to make a new application.
The second allegation made in respect of the procedural fairness claim is that the Tribunal appeared to be biased because of the statement which it made that the applicant did not claim any particular religion in her response to item 12 of her primary application. Even an allegation of apprehended bias requires more than mere assertion and it would be difficult to come to the conclusion that an allegation based solely on one comment could give rise to such an apprehension unless that comment was far more outrageous. I would not feel that a fair minded observer or a properly informed lay person might infer from that comment or the circumstances that the Tribunal may have so prejudged a matter that it was unable or unwilling to change its mind regardless of the evidence or arguments put forward by the applicant.
I cannot see from my perusal of the court book any grounds upon which the Tribunal can be said to have fallen into jurisdictional error in the way in which it came to its conclusions and I must therefore dismiss the application which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 9 February 2006
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