SZEIB v Minister for Immigration
[2005] FMCA 1077
•5 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEIB v MINISTER FOR IMMIGRATION | [2005] FMCA 1077 |
| MIGRATION – Review of decision of Refugee Review Tribunal – protection visa application refused – applicant claims religious persecution in the PRC as a “Shouter”. |
| Judiciary Act1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2); 65(1); 91R; 91S; 422B; 426A; 474 |
| B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 (2 February 2004) s58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Minister for Immigration and Ethnic Affairs v Guo Wei Rong & Anor [1997] 191 CLR 559 |
| Applicant: | SZEIB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2737 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 25 July 2005 |
| Date of Last Submission: | 25 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2005 |
REPRESENTATION
| The Applicant representing herself |
| Counsel for the Respondent: | Ms K. Morgan |
| Solicitors for the Respondent: | Ms A. Hawkes, Clayton Utz Lawyers |
ORDERS
The Amended Application filed 1 December 2004 is dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2737 of 2004
| SZEIB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The application
This is an application pursuant to s.39B of the Judiciary Act1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made 30 July 2004 affirming the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) not to grant a protection visa to the Applicant.
The Applicant claims to be a citizen of the Peoples Republic of China (PRC). The Applicant states that she lived at Fu Qing, Fujian from 1962 until March 2004.
The Applicant arrived in Australia on 7 March 2004.
The Applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) on 5 April 2004 on the basis that she had a well founded fear of persecution within the meaning of the Convention by reason of being a “Shouter” in the PRC.
On 15 April 2004 a delegate of the Minister refused to grant a protection visa. On 18 April 2004 the Applicant applied to the Tribunal for review of the decision of the delegate.
On 30 July 2004 the Tribunal dismissed the application on the basis it did not accept as credible the claims made by the Applicant and therefore was not satisfied that the Applicant has a well founded fear of persecution within the meaning of the Convention.
On 3 September 2004 the Applicant filed an application in this Court seeking review of the Tribunal decision. That application claims relief in the following terms:
“1.The decision made by the Refugee Review Tribunal be set aside.
2. My case be sent back to the tribunal for reconsideration.
The grounds of the application are:
1.The Tribunal officer made mistakes when considering my application. I was not given a proper opportunity to explain my case.”
2.The Tribunal was wrong to find I was not a refugee. The Tribunal made mistakes in saying I was not a refugee.”
On 1 December 2004 the Applicant filed a document entitled “Amended Application” in the following terms:
“The officer did not give me a proper opportunity to explain myself for my protection visa application. He is not satisfied that I am a Christian Shouter without any proper evidence to support his conclusion. I believe that the officer had bias against me: he did not have any evidence to justify his decision. He did not believe that my friends have been detained and sentenced because their involvement with “Shouters” because he did not believe that I am a “Shouter” member at all. He assumed that I would not be persecuted on my return to China. He simply did not believe that I was a member of “shouters” and he could not provide any evidence to support his statement. When he considered my application, he assumed that I have never participated in any of the underground religious activities. He refused application just because he did not believe my credibility. He could not produce any evidence or materials to justify the making of the decision. He simply just concluded that I have never participated in activities of “Shouters” and I had never been a member of it without any reasons.
I believe that the officer made jurisdiction mistakes when considering my application. He did not give me proper opportunity to explain my case and simply refused my application base on not believing me and his bias against me. He did not even refer to any information from any resources about “Shouters”.”
Legislative framework
Section 65(1) of the Migration Act 1958 (Cth) (“the Act”) provides that the decision maker must not grant a visa unless satisfied that the prescribed criteria have been met.
Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5 (1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
Procedural history
On 3 June 2004 the Tribunal wrote to the Applicant informing the Applicant that it had considered the material before it regarding the Applicant’s review application and that it could not make a favourable decision on that information alone. The Tribunal invited the Applicant to attend the Tribunal hearing in person on 30 June 2004, give oral evidence and present arguments in support of the Applicant’s claims.
On 28 June 2004 the Tribunal received a “Response to Hearing Invitation” from the Applicant in which the Applicant had marked the box “No” thereby indicating that she did not want to attend the Tribunal hearing and consenting to the Tribunal proceeding to make a decision on the review without taking any further action to have the Applicant appear in person.
On 2 August 2004 the Tribunal informed the Applicant that it had made its decision and invited the Applicant to attend the Tribunal on 19 August 2004 to hear its decision.
The Tribunal’s findings
It is the statutory obligation of the Tribunal to examine and deal with the claims for asylum made by the Applicant in considering whether she has a well founded fear of persecution within the meaning of the Convention.
The material before the Tribunal for consideration was the Department’s file, including the protection visa application and the delegate’s decision record.
The Applicant did not wish to attend a hearing before the Tribunal and did not provide any further material or evidence of her religious beliefs or in support of her claim that her group is harassed and persecuted in the PRC.
In her application for review before the Tribunal the Applicant made the following assertions:
“I am from Long Tian Fu Qing and a member of “shouters”. The Chinese government banned “Shouters” in 1996 because of its close relationship with overseas Churches. I was a key member of the church. Worrying about my safety I left China to come to Australia for protection. Some of the followers had been detained and were forced to disclose other followers names. I would be subjected to persecution on my return to China. I hope that my application can be reconsidered at RRT.”
The Tribunal made the following findings:
a)The Tribunal was unable to be satisfied that the Applicant is a “Christian Shouter”;
b)The Applicant provided no supporting information to substantiate her claims that she is a “Shouter”;
c)The Applicant did not give evidence that she is practising her religion in Australia;
d)The Applicant did not attend a hearing before the Tribunal where she would have been able to provide evidence of her religious beliefs and give evidence in support of her claims that her group is persecuted and harassed in the PRC;
e)In respect of the Applicant’s claim that some of her friends have been detained and sentenced to prison, the Applicant provided no details about when and how they were detained and sentenced and what charges were laid;
f)The Applicant provided no explanation as to why she would be considered a key member of the group and offered no plausible explanation why, if she was a key member of the group, she was not also detained;
g)The Applicant did not claim to have suffered actual harm;
h)The Applicant did not state that the authorities are actively seeking her, although she continued to live at the same residential address until she left for Australia in 2004;
i)Even though the Applicant obtained a passport in October 2003, she did not leave the PRC until March 2004;
j)The Tribunal was not satisfied that the Applicant is a leading member of the “Shouters”;
k)The Tribunal was not satisfied on the evidence before it that the Applicant has a well founded fear of persecution within the meaning of the Convention.
The proceeding before this Court
The Applicant was unrepresented at the hearing before the Court but confirmed that she had met with a panel advisor. She had the assistance of an interpreter for the hearing in her nominated language.
When asked if there was anything further she wished to put before the Court in support of her Application, the Applicant stated that her friend had helped her with her documents and had told her that it was not necessary for her to attend the Tribunal hearing. She said that she wished to stay in Australia because, if she returned to the PRC, she would face persecution.
At the outset of the hearing, the interpreter read to the Applicant a copy of the Respondent’s outline of submissions and the findings and reasons of the Tribunal. I invited the Applicant to make any comment in respect of that material. However, she declined to do so.
In her Amended Application, the Applicant appeared to be making the following claims in respect of the Tribunal decision:
a)The Tribunal did not provide a proper opportunity to the Applicant to explain herself;
b)The Tribunal was not satisfied the Applicant is a “Christian Shouter” and had no evidence to support that conclusion;
c)The Tribunal was biased against her in that it did not have any evidence to justify its decision;
d)The Tribunal did not believe that the Applicant’s friends had been detained and sentenced because of their involvement with “Shouters” because it did not believe that the Applicant is a “Shouter”;
e)The Tribunal assumed that the Applicant would not be persecuted upon her return to the PRC;
f)The Tribunal did not believe that the Applicant was a member of “Shouters” and could not provide any evidence to support its statement;
g)The Tribunal assumed that the Applicant had never participated in any illegal religious activities;
h)The Tribunal refused the Applicant’s application because it did not believe her;
i)The Tribunal could not produce any evidence or materials to justify its decision;
j)The Tribunal concluded without any reasons that the Applicant had never participated in any activities of “Shouters” and had never been a member of “Shouters”;
k)The Tribunal did not refer to any information from any resources about “Shouters”.
The claims in the Amended Application are dealt with below.
Applicant’s claim (a) – The Tribunal did not provide a proper opportunity to the Applicant to explain herself
Germane to the Applicant’s complaint is the claim by the Applicant that she was not offered an opportunity to explain herself to the Tribunal. I understand this to be a claim by the Applicant that she was denied procedural fairness.
Division 5 of Part 5 of the Act sets out the procedure to be adopted by the Tribunal in conducting a review. Section 422B of the Act states that this subdivision is to be an exhaustive statement of the requirements of the natural justice hearing rule.
It is clear from the procedural history that the Applicant was offered an opportunity on 3 June 2004 to appear at a Tribunal hearing in order to give oral evidence and present arguments in support of her claims. Further, the notification on 3 June 2004 made it clear to the Applicant that the Tribunal had considered the material presently before it and was unable to make a decision in favour of the Applicant on that information alone.
On 28 June 2004 the Tribunal received a “Response to Hearing Application” saying that the Applicant did not want to come to a hearing and consenting to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. Accordingly, pursuant to s.426A of the Act, the Tribunal could proceed to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.
The Applicant was given a proper opportunity to explain her case and, for whatever reason, did not to appear. The Applicant states that she did not appear because her friend told her that it was not necessary for her to attend. However, the authorities are clear that reliance on the advice of a third party cannot lead to a denial of procedural fairness (B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30).
In failing to appear at the hearing, even if on advice, the Applicant is taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of the Applicant’s material would be noted by the Tribunal without an opportunity for the Applicant to explain or clarify them. In those circumstances, the Applicant cannot complain if her application was rejected because, amongst other reasons, she failed to take up the opportunity to appear. (See s58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at paragraphs 25 and 26).
Accordingly, ground (a) is rejected.
Applicant’s claims (b), (d), (e), (f), (h), (g), (j) – factual findings
These claims by the Applicant relate to factual findings by the Tribunal. The Tribunal only had before it the bare assertions of the Applicant in respect of her claims, which it was not bound to accept.
It was for the Applicant to place before the Tribunal all the material upon which she sought to rely in support of her claims. The letter from the Tribunal dated 3 June 2004 made it clear to her that the information she had provided to the Tribunal at that time was insufficient to enable the Tribunal to make a decision in her favour.
The only information provided to the Tribunal in support of her claim was that contained in her application for review dated 15 April 2004. The Tribunal was not obliged to accept at face value the short and vague outline of the Applicant’s basis for fearing persecution in the PRC. (See NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287).
The conclusion of the Tribunal in not being satisfied that the Applicant would be persecuted upon her return to the PRC was in relation to persecution within the meaning of the Convention. The Tribunal was not satisfied that the Applicant’s assertion in her application to the Tribunal for review that “I would be subjected to persecution upon my return to China” was sufficient to satisfy the Tribunal that the Applicant has a well founded fear of persecution within the meaning of the Convention.
The Tribunal also noted that the Applicant had not appeared at the hearing before the Tribunal where she would have been able to provide evidence of her religious beliefs and give evidence in support of her claims that her group are persecuted in the PRC.
The Tribunal made it clear that the lack of further details beyond the bare assertions of the Applicant was not sufficient to satisfy the Tribunal of the Applicant’s claims that some of her friends had been detained and sentenced to imprisonment. That finding was open to the Tribunal.
The Tribunal noted that the Applicant did not provide any further explanation as to why she should be considered a key member of the group beyond her assertion.
The Tribunal is not required to make the Applicant’s case for her. Nor is the Tribunal required to accept uncritically any or all the allegations made by the Applicant. Bare assertion of a claim, and the rejection of a finding in terms of that assertion is not necessarily jurisdictional error. As stated by the High Court in Minister for Immigration and Ethnic Affairs v Guo Wei Rong & Anor [1997] 191 CLR 559:
“[T]he mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for reasons of political opinion. It remains for the Minister in the first place to be “satisfied” and, where that decision is adverse and a review sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”
It is clear from the findings and reasons of the Tribunal that it considered, in accordance with its statutory duty, each of the factual claims made by the Applicant. The Tribunal did not accept as credible the claims made by the Applicant. That finding was plainly open to the Tribunal having regard to the lack of material or information before it from the Applicant in support of her claims and the fact that the Applicant did not attend the hearing.
The Tribunal’s failure to accept as credible the claims made by the Applicant, in the circumstances, does not amount to jurisdictional error.
Applicant’s claim (c) – The Tribunal was biased against her in that it did not have any evidence to justify its decision
The failure of the Tribunal to accept the bare assertions of the Applicant unsupported by evidence is not evidence of bias on the part of the Tribunal. This ground is misconceived in respect of a claim of bias. In the circumstances I reject the contention of any bias on the Tribunal’s part.
Applicant’s claims (i) and (k) – The Tribunal could not produce any evidence or materials to justify its decision – The Tribunal did not refer to any information from any resources about “Shouters”
The Tribunal’s decision turned essentially on the finding of the Tribunal that it did not accept as credible the claims asserted by the Applicant in her material.
Again, that finding was open to the Tribunal on the material before it and the Tribunal’s failure to make factual findings in accordance with the Applicant’s claims is not jurisdictional error.
The Tribunal was not obliged to accept the bare assertion of the Applicant that she is a “Christian Shouter”. The Applicant asserts that the Tribunal’s conclusion was not supported by “proper evidence”.
I understand the Applicant to be referring to “information and resources about “Shouters””. The Tribunal hearing is an opportunity for the Applicant to place before the Tribunal all evidence and material upon which she wishes to rely in support of her claim to be a “Christian Shouter” and that, as a “Christian Shouter”, she has a well founded fear of persecution on one of the Convention grounds.
The Tribunal afforded every opportunity to the Applicant to place before it all the material she may wish to rely on in support of her claims. Further, in its letter of invitation to the Applicant to appear at a hearing, the Tribunal put the Applicant on notice, in the first sentence of that letter, that it had considered that material presently before it and was unable to make a decision in favour of the Applicant on that information alone. The Applicant responded that she did not wish to attend a hearing and she lodged no further information, including any further information about “Shouters”. The inevitable result then occurred and the Tribunal affirmed the decision of the delegate as it was not satisfied on the material before it that the Applicant was a “Shouter”.
The Tribunal identified the material before it, including the Part B material before the delegate. Those documents included:
“CIS document CX71321:PRC: The Shouters: 2002; United States Department of State: 2002 and 2003 Annual Reports on International Religious Freedom: China; CIS document CX767: Instructions on the administration of targeted groups of the populace: 6 April 1994.”
The Applicant does not identify any particular material in those, or other, documents before the Tribunal in respect of which she claims the Tribunal did not make reference.
Accordingly, these grounds are rejected.
Conclusion
The Tribunal was not satisfied on the material before it that the Applicant has a well founded fear of persecution within the meaning of the Convention.
In the circumstances I am satisfied that the Tribunal properly considered the factual claims before it made by the Applicant and the findings made by the Tribunal in respect of those facts were open to the Tribunal. Further, I am satisfied that there is not any other claim plainly arising from the material before this Court that is capable of satisfying the Court that there was any error on the part of the Tribunal.
Accordingly, the Tribunal’s decision is a privative clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The Application is dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 2 August 2005
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