SZEGM v Minister for Immigration - [2005] FMCA 236

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEGM v MINISTER FOR IMMIGRATION

[2005] FMCA 236

MIGRATION – RRT decision – Chinese Falun Gong practitioner with abusive husband – no response to request for information – hearing cancelled after invitation sent – no jurisdictional error found.

Migration Act 1958 (Cth), ss.424, 424(3), 424B, 424C, 424C(1), 424C(2), 425, 425A, 441A(4), 483A, Part 8
Judiciary Act1903 (Cth), s.39B

NAWJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 54

Applicant:

SZEGM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2634 of 2004

Judgment of:

Smith FM

Hearing date:

21 February 2005

Delivered at:

Sydney

Delivered on:

21 February 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr J Bird

Solicitors for the Respondent:

Phillips Fox

ORDERS

Application dismissed
Applicant to pay the respondent’s costs in the sum of $3000

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2634 of 2004

SZEGM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth), challenging a decision of the Refugee Review Tribunal dated 30 June 2004 and handed down on 22 July 2004. The Tribunal affirmed a decision of a delegate, refusing the applicant a protection visa.
Under s.483A the Court has “The same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The jurisdiction of the Federal Court is its judicial review jurisdiction conferred in matters such as present by s.39B of the Judiciary Act1903 (Cth), but subject to limitations under Part 8 of the Migration Act. The High Court has interpreted those limitations so that the applicant’s case can only be sent back to the Tribunal if jurisdictional error can be found in the decision or proceedings of the Tribunal. The Court does not have power to do this merely based on its views as to the merits of the applicant's claim to be a refugee.
In the present case the applicant arrived in Australia in February 2003 on a three-month visitor's visa. She applied for a protection visa soon after arrival. In a short statement attached to her application, she indicated that she came from an unhappy family situation. She was married to a rude and boorish man who liked rough company and drink:
Every time after hard work he liked to have some drink with his work mates. And when he came home drunk he always beat me. He hated his detestable job, and he gave vent to me. I was full of blue and black from time to time. Although my relatives pitied on me, they did not dare to say anything to my husband.
The applicant said that in 1996 she was introduced to Falun Gong by a workmate and:
From then on I changed my attitude to this world and to my marriage. I stopped hate the world and I began like my life little by little. I tried to treat my marriage in a positive opinion. Every time when my husband beat me again, I would recite the words of Falun Gong quietly. I found this is a good way to forget the terrible pain.
She said she put more and more time in learning and practicing Falun Gong. However:
My husband could not understand why I study Falun Gong. When he knew the reason was escape his violent in my mind, he was so angry, almost mad. He said he would report me to the police if I do not stop it. I thought he could not stand beat me without seeing my suffering. I knew my husband very well, I would do it if he want, careless of my feelings.
I felt in terrible fright again. Falun Gong was the only spirit bone of mine. If lost Falun Gong, I doubted I would die. I was not dare to risk my life. And I knew the police would give me the same hurt as my husband used give me if I continue my Falun Gong religion. The only way to avoid terrible harm was escape from the control of both my husband and the police. That is a real escape, because I was well fear of the threat from my husband and police.
No further information concerning the applicant's involvement in Falun Gong was given to the delegate, nor was further substance given to a fear involving Chinese authorities.
On 17 April 2003 the delegate refused the application, pointing out that the applicant had:
Provided no details whatsoever of ever suffering any harm or mistreatment in the PRC of sufficient gravity as to constitute persecution in terms of the convention.
The delegate concluded that:
In view of her very low profile, the fact that she has never been of any adverse interest of the Chinese authorities, the ease with which she was able to leave the PRC, and the fact that she will be unable to provide any evidence at all to support her claims, I am unable to accept that she has ever suffered convention based persecution in the PRC.
The applicant appealed to the Refugee Review Tribunal attaching a brief statement which gave no more detail than her original statement. In her application for review the applicant nominated a migration agent as an authorised recipient, and all subsequent correspondence from the Tribunal was sent both to the applicant at her home and mailing address and to the agent.
On 20 May 2003 the Tribunal sent the applicant a letter informing her that, when it received the Department's file, it would decide if it would invite her to a hearing or write to her for more information.
On 23 December 2003 the applicant was sent a letter addressed to the three addresses I have indicated, inviting her to “come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims” on 7 April 2004. A response to that invitation was received by the Tribunal on 13 January 2004 indicating that she wanted to attend a hearing.
On 24 February 2004 a letter was sent by the Tribunal to the three addresses I have referred to above, requesting that the applicant provide additional information and comments on a number of aspects of her claims, including her activities and membership of Falun Gong in China and suggestions from independent country information that suggested that it was improbable that she was of adverse interest to the authorities. It also sought more detail concerning her fears in relation to her husband and if she returned to China.
I am satisfied that the letter was sent to the applicant pursuant to the provision of s.424 and s.424B, which apply to invitations to “give additional information.” Invitations are required to be “given to the person - by one of the methods specified in s 441A” and I am satisfied that this was done in the present case, namely under s.441A(4) by prepaid post within three days of the date of the document. The applicant was then deemed to receive the document 7 working days after the date of the document (see s.441C(4)). The prescribed period for responding is prescribed under regulation 4.35A, and starts from the period when the person is deemed to receive the request and ends “at the end of 14 days after the day on which the invitation is received”.
Under these provisions satisfaction as to actual receipt of the invitation is not required to be established before the Tribunal may proceed in accordance with s.424C(2) and (1). These apply respectively to a failure to give information or to comment, and provide that where a person “does not give the information before the time for giving it has passed; the Tribunal may make a decision on the review without taking any further action to obtain the additional evidence”, or to obtain the applicant's views on the information” in the case of an invitation to comment on information.
Also relevant to this case is s.425:
425 Tribunal must invite applicant to appear
(1)     The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)     Subsection (1) does not apply if:
(a)     the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)     the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
An issue in the present case is whether a Tribunal is entitled to send an invitation for additional information or comments after it has sent a notice of invitation to attend a hearing under s.425A, and to cancel that invitation to appear when no response to the request for additional information or comments is received. Neither party has referred me to any authorities on this question.
In the present case, the Tribunal warned the applicant in the letter sent on 24 February 2004 that it would cancel the hearing previously notified if she did not provide the additional information by 24 March 2004, and the Tribunal proceeded to do so and advised the applicant in writing by letter dated 31 March 2004.
According to the Tribunal on the same day, 31 March 2004:
the applicant's adviser was advised by telephone that the hearing had been cancelled because the applicant had not responded to the s 424 invitation. The adviser requested that the information be put in writing. As a result a letter dated the same day was sent to the adviser confirming the Tribunal's conversation and the reason for the hearing's cancellation.
There is no evidence before me that the applicant's adviser sought to dissuade the Tribunal from cancelling the invitation to attend the hearing or sought to argue that it was not open to the Tribunal to cancel the hearing. There is no evidence that the applicant herself attempted to contact the Tribunal to obtain further time to respond to the request for information or an opportunity to attend a hearing, and she has told me today that she did not attempt to ask the Tribunal to do anything after she had received its letters.
In my view, it was open to the Tribunal to cancel the invitation for hearing, and to proceed to make a decision on the review without taking any action to invite or allow the applicant to attend a hearing, notwithstanding the previous invitation. I can see no implication from the language or scheme of Division 4 of Part 7 of the Migration Act that the Tribunal may not serve a s.424 notice after sending a s.425 invitation to a hearing, nor that it cannot rely upon s.424C after sending an invitation to a hearing. I consider that s.425(3) (see above) removes any entitlement the applicant might have had to attend a hearing in circumstances where she has not responded to a notice under s.424 which has been properly served.
As I have indicated above, on the material before me this has happened in the present case. The legal representative for the Minister has not cited to me any authority where this has been addressed, but he has cited the case of NAWJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 54, where Sackville J considered that it was open to the Tribunal to proceed without a hearing where a request for additional information had been duly served under the provisions of s.424 and the other provisions I have referred to above.
In its reasons for decision in the present case, the Tribunal arrived at the inevitable conclusion that:
There is simply insufficient information and evidence before the Tribunal to be satisfied that the applicant's claims are genuine.
The Tribunal also based its decision to affirm the decision on a conclusion that the applicant “has fabricated her claims” largely because of her failure to respond to requests for information. The Tribunal's reasoning in this respect might not have been necessary. However, in my view, the Tribunal made no jurisdictional error when concluding that it was not satisfied that the applicant genuinely feared persecution for a Convention reason if she returned to China in the foreseeable future. I am unable to find jurisdictional error vitiating its decision.
The applicant's application to this Court merely identified as the grounds of the application:
I would be jailed if I go back to China - my original country - because I belong to a particular social group - Falun Gong. My fear is well founded as I have been persecuted by Chinese government.
These grounds do not allow me to identify any arguable ground for finding jurisdictional error in the Tribunal decision.
The applicant attended a first hearing date before this Court and was directed to file an amended application giving particulars by

27 November 2004, and written submission, 14 days before the hearing appointed for today. She did neither of these things.
She has attended today and has been assisted with an interpreter, but has not been able to make any point which would establish a ground for judicial review.
She asked for more time to get documents from China and to obtain a lawyer, but I do not consider that the former reason for an adjournment would be relevant to the proceedings, and in relation to the latter she has had more than ample time to obtain legal assistance in the present proceedings. I refused to adjourn today's hearing for those reasons.
Her only other submission was that she should be given a protection visa, but this is not a submission which can be entertained in this Court.
For the above reasons I dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 9 March 2005