SZEPM v Minister for Immigration

[2005] FMCA 1744

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPM v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1744

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in the PRC as a member of Falun Gong – applicant failed to appear before RRT – s.425 invitation returned to RRT unclaimed – whether compliance with s.441A – whether RRT should have proceeded with review in absence of applicant.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 425; 425A; 441A; 474; 483

SJSBv Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215
NASTv Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283

Applicant: SZEPM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 3136 of 2005

Delivered on: 18 October 2005

Delivered at: Sydney

Hearing date: 18 October 2005

Judgment of: Emmett FM

REPRESENTATION

Solicitors for the Respondent: Mr L. Leerdam, Phillips Fox

ORDERS

1. That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. That the Refugee Review Tribunal be joined as Second Respondent.

3. That the Application filed 21 October 2004 is dismissed with costs.

4. That the Applicant pay the Respondent’s costs in an amount of $3780.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3136 of 2005

SZEPM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act1903 (Cth) and Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of a Delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.

2. The Applicant claims to be a citizen of the Peoples Republic of China (“the PRC”) and a Falun Gong religious follower and leader.

3. The Applicant claims she legally departed from Shang Yang airport on 25 February 2004, and arrived in Australia on 26 February 2004.  On

   
   

   5 March 2004, the Applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act.

4. The Applicant claimed that, if she were to return to the PRC, she would be targeted and persecuted for her leadership role in practicing Falun Gong in the PRC and in Australia. 

5. On 11 March 2004, the Delegate refused the Applicant's application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

6. On 21 October 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal's decision (“the Application”).  In the Application the Applicant claimed relief on the following grounds:

   “*Errors of law in that proceeding by the DIMIA.

   *No evidence & material supporting the decision so, it was not possible to make a fair decision.

   *It is not easy to get evidence from China against their government but I’m trying to got some evidence to supporting me and send to the court as soon as possible.

   *I don’t think the DIMIA carefully processing my application, in the decision letter they wrote my DOB is 4 September 2004. So I can not believe what they said.”

Legislative framework

1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.

2. Section 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.

3. Australia owes protection obligations to a refugee on Australian territory.

4. 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.”

5. 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.

The Tribunal proceeding

1. The application for review by the Tribunal was lodged on 8 April 2004, and identified a mailing address for the Applicant.  It also identified a home address for the Applicant.  On 8 April 2004, the Tribunal wrote to the Applicant confirming receipt of her application and, inter alia, advising her to tell the Tribunal immediately of any change in contact details.

2. On 21 July 2004, the Tribunal sent to the Applicant an invitation to attend a hearing on 26 August 2004.  The letter commenced by informing the Applicant that the Tribunal had considered the material before it in relation to her application but it was unable to make a decision in her favour on this information alone. 

3. The letter further invited the Applicant to send any further documents or written arguments she wished the Tribunal to consider.  No further material was received by the Tribunal from the Applicant.

4. The letter inviting the Applicant to attend a hearing was sent to the Applicant at both the mailing address identified by her and her home address.  The Applicant did not appear before the Tribunal on the day nominated.  The Tribunal decided to make its decision on the review without taking any further action to allow or enable the Applicant to appear before it.

5. Section 425 of the Act requires that the Tribunal send an invitation to the Applicant to appear before the Tribunal to give evidence and present arguments.

6. Section 425A(2) of the Act provides that an invitation to attend a hearing must be given to an applicant by one of the methods specified in s.441A of the Act.

7. Section 441A of the Act relevantly provides that a document is taken to be duly given to an applicant if sent to the last address for service, or the last residential address provided by the applicant, as long as the document is sent within three working days of the date of the document.

8. The First Respondent tendered a copy of the Tribunal's letter dated 21 July 2004, sent to the Applicant at her mailing address together with a copy of the envelope addressed to the Applicant at her home address.   Those documents together are Exhibit 1R. 

9. The envelope has a postmarking on it dated 22 July 2004, and in respect of the invitation to attend a hearing sent to the Applicant at her home address, I accept that such letter was sent within three days of the date of that letter, being 21 July 2004.

10. I note that the envelope on Exhibit 1R is marked:

    “Received by the Tribunal on 12 August 2004.”

    In the Court Book, the copy of the letter sent to the Applicant at her mailing address is also marked:

    “Received by the Tribunal on 12 August 2004.”

11. The First Respondent contends that this Court ought to draw the inference based on the material that the letter addressed to the Applicant at her mailing address was sent within three days of the date of that letter. 

12. I am satisfied that the inference I am asked to draw in the circumstances is reasonable, and I am satisfied that the requirements that would allow the Tribunal to proceed to its decision pursuant to s.426A of the Act are met.

13. In the circumstances the Tribunal was entitled, pursuant to s.426A of the Act, to decide to make its decision on the review without taking any further action to enable the Applicant to appear before it.

14. The Tribunal had before it the Department's file, including the Applicant's statement in support of her initial application for a protection visa. 

15. Relevantly, the Applicant claimed that she was first introduced to Falun Gong in 1996.  She claimed that in 1999 the authorities began targeting key leaders like herself. 

16. She claimed that on 16 November 1999, she was arrested by police, tortured and detained for two months, finally waking up in hospital.  Following this incident, the Applicant claimed that she returned to work at the metal factory but continued to practice Falun Gong and organise meetings. 

17. The Applicant claimed that she was arrested in October 2002 for distributing a book called Poisonous Deceit, and was detained for one month.  Thereafter she returned to work and continued to be a Falun Gong leader. 

18. In March 2003, the Applicant stated she was fired from her job.  She obtained a passport and entered Australia on a tourist visa on 26 February 2004.

19. The Applicant claimed that she became a practitioner and leader of Falun Gong in Australia.  The Applicant claimed that she fears persecution from the authorities as a Falun Gong practitioner if she were to return to the PRC.

20. The Tribunal noted that independent information before it indicated many instances of persecution of Falun Gong members in the PRC.  However, in respect of the Applicant's application, the Tribunal found that there was no evidence to support her claims of being a Falun Gong practitioner.  The Tribunal had only the bare assertions made by the Applicant. 

21. The Tribunal noted that given the absence of the Applicant it had no means of testing the veracity of her claims. 

22. In relation to the Applicant's claim that she was one of the key leaders in the Falun Gong movement in her home town of Ti-Ling, the Tribunal noted that the Applicant did not identify the role she played in the movement that warranted the description of herself as a key leader.  In relation to the Applicant's claim of being imprisoned, detained and tortured, the Tribunal noted that she was allowed back into her usual employment after she was released from detention.

23. The Tribunal found it implausible that such person would be allowed back into her employment.  Further, the Tribunal noted that the Applicant provided no evidence as to when or where she was detained.  The Tribunal noted that the Applicant provided no proof of her claims of practicing Falun Gong in Australia. 

24. On the evidence before it, the Tribunal was not satisfied that the applicant is a Falun Gong practitioner or that she has suffered persecution as a result of her membership of Falun Gong. 

25. Accordingly, the Tribunal found that the Applicant does not have a well founded fear of persecution for a Convention reason, and is therefore not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The proceeding before this Court

1. The Applicant was unrepresented before this Court this morning, although she had the assistance of an interpreter.  On 3 November 2004, the Applicant had been directed to file and serve an amended application giving complete particulars of each ground, and to file and serve any written submissions fourteen days before today's hearing.

2. The Applicant did not file any further documents in this Court. 

3. The Applicant made no submissions in support of her Application this morning, even though each of the grounds contained in her Application was read to her and she was invited to expand or comment on each ground.

4. The grounds identified in the Application disclose no reviewable error. The legislative regime contained in s.65 and s.36 of the Act requires the Tribunal to be satisfied that protection obligations arise. The authorities have made it clear that the legislative regime requires refusal of the granting of a protection visa, unless the Minister is satisfied that relevantly the criteria prescribed in s.36 of the Act have been met. (SJSBv Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 at [15]-[16]).

5. In NASTv Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208, at [4]-[5], their Honours held that the Tribunal listed a number of significant matters about which the Tribunal would have wished to satisfy itself at a hearing and the primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the Tribunal to want an explanation about those matters. In its reasons for decision in that case, the Tribunal had said that, in view of the first appellant’s failure to attend the hearing, the Tribunal was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution, or that she had experienced any particular mistreatment or harm, let alone who inflicted the harm or for what reason, or whether it amounted to persecution for a convention reason. As the Tribunal is not satisfied that the first appellant faced a real chance of persecution for a Convention reason, on return to Bangladesh, it was bound to affirm the decision of the Minister's delegate to refuse to grant the first appellant protection visa.

6. The Tribunal, in this case, made it clear that there were matters about which it was not satisfied. Fundamentally, the Tribunal was not satisfied that the Applicant was a Falun Gong practitioner.  Accordingly, despite noting that the independent information revealed many instances of persecution of Falun Gong in the PRC, in light of the Applicant's failure to satisfy the Tribunal that she was a Falun Gong practitioner, the inevitable consequence was that the Tribunal must conclude that the Applicant had not suffered persecution in the PRC as a result of the practice as a Falun Gong, and that there was not a real chance that she would suffer persecution for that reason in the reasonably foreseeable future if she were to return to the PRC.

7. The Tribunal complied with its obligations under the Act to invite the Applicant to attend a hearing. In those circumstances, pursuant to s.426A of the Act, the Tribunal was entitled to proceed with its review without taking any further action to enable the Applicant to appear before it. It was the Applicant’s obligation to inform the Tribunal of any change of address or other contact details immediately. That obligation was made clear to the Applicant by the Tribunal in its letter dated 8 April 2004 acknowledging receipt of the application for review. In those circumstances, the Applicant is taken to have assumed the risk that unsatisfactory features of his material, including omissions, would be noted by the Tribunal without an opportunity to the Applicant to explain or clarify them (s58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [25]).

Conclusion

1. In the circumstances, I am satisfied that the Tribunal was entitled to proceed with its review in the absence of the Applicant without taking any further action to enable the Applicant to appear before it. I am also satisfied that the Tribunal properly considered the factual claims made by the Applicant and the findings made by the Tribunal in respect of those facts were open to the Tribunal on the material before it.

2. 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.

3. Accordingly, the Applicant's Application, filed on 21 October 2004, is dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date:  25 November 2005