SZESB v Minister for Immigration

[2005] FMCA 1867

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZESB v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1867

MIGRATION – Review of decision by Refugee Review Tribunal – applicant claims lack of procedural fairness on the basis that she was not given an opportunity to appear at the Tribunal hearing – Tribunal complied with s.441A – Tribunal proceeded to consider the application in absence of applicant pursuant to s.426A.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425; 426A; 441A; 474; 483

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Randhawa v Minister for Immigration and Multicultural and Indigenous Affairs (1994) 52 FCR 437
NAST v 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: SZESB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3345 of 2004

Judgment of: Emmett FM

Hearing date: 29 November 2005

Date of Last Submission: 29 November 2005

Delivered at: Sydney

Delivered on: 29 November 2005

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the Respondent: Ms O. Mak, Clayton Utz

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 Applicant’s Application filed 16 November 2004 is dismissed.

4. That the Applicant pay the First Respondent’s costs in an amount of $3300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3345 of 2004

SZESB

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 Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant, in circumstances where the Applicant failed to attend a hearing before the Tribunal.

2. The Applicant is a 40 year old woman who claims to be a citizen of the Peoples Republic of China (“the PRC”).

3. The Applicant departed the PRC on 1 May 2004, travelling on a passport issued in her own name, arriving in Australia on 2 May 2004.

4. On 6 May 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

5. On 12 May 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 Refugee Convention as amended by the Refugees Protocol.

6. On 15 June 2004, the Applicant filed an application for review before the Tribunal. On 21 September 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

7. On 16 November 2004, the Applicant filed an application in this Court (“the Application”) seeking judicial review of the Tribunal’s decision.

The Tribunal proceeding

1. The Applicant did not attend the Tribunal hearing on 14 September 2004. The Tribunal made a decision to proceed to consider the application for review without taking any further action to allow or enable the Applicant to appear.

2. The Tribunal had before it the Department’s file, including the application for a protection visa and the Delegate’s decision record. The Applicant did not provide any material to the Tribunal in support of her application for review and did not attend the hearing on 14 September 2004.

3. The Applicant claimed that she is a woman from the PRC, residing in Tianjin at the same address for the 10 years prior to coming to Australia, and worked as a company manager from 1984 to 2003. She claimed, in her application for a protection visa, that she was a member of Falun Dafa who had travelled to Beijing on four occasions to “appeal”.

4. The Applicant claimed that, in May 2002, she was arrested in Beijing and sent to the Tianjin detention centre, where she claimed she was subjected to “brutal torture”, including sleep deprivation, beatings resulting in several fractured bones, food deprivation and refused access to toilet facilities.

5. The Applicant claimed that, as a result of her treatment during detention, her health “deteriorated rapidly”. She claimed that, as a result of this deterioration in her health, she was released from detention and sent home so that the detention centre could “avoid responsibility”.

6. The Applicant claimed that her family sold off all of their possessions and properties in order to raise money to bribe an official to issue her a passport and visa to travel to Australia.

7. On 5 August 2004, the Tribunal wrote to the Applicant and advised that it had had regard to the information in her application for review and was unable to make a decision in her favour. The Tribunal invited her to attend a hearing on 14 September 2004, to give oral evidence and present further submissions. The Tribunal sent that letter to the residential address and the mailing address identified by the Applicant in her application for review. The letter sent to the Applicant’s identified residential address was returned to the Tribunal marked “left address”.

8. The Tribunal accepted that the Applicant is a national of the PRC, but was not satisfied, on the material before it, that the Applicant had a well founded fear of persecution in the PRC on the basis of her belief in, or practice of, Falun Gong on the basis that it could not be satisfied that the Applicant is in fact a Falun Gong practitioner.

9. The Tribunal noted that the Applicant had not provided any information of her practice of Falun Gong including, “how long she had practised, what form her practice took, why she became devoted to Falun Gong, and whether she had any difficulties with the authorities specifically because of her practice”. The Tribunal also noted that the Applicant had provided no information as to whether the Applicant still practises Falun Gong.

10. The Tribunal further noted that the Applicant had provided no information in respect of her claims that she made four “appeals” in Beijing and few details of her claimed detention in Tianjin, “notably for how long she was detained.” The Tribunal also noted that the Applicant provided no details as to how her health deteriorated or how she was treated upon her release and regained her health.

11. The Tribunal did not accept that the Applicant had bribed an official in order to obtain her passport, since her passport was issued prior to the date of her alleged detention. Further, the Tribunal noted that the Applicant was able to travel on the passport to Germany in September 2003, following her claimed detention, without apparent difficulty and that she did not attempt to apply for refugee status in Germany.

12. The Tribunal concluded that without further submissions of the Applicant in respect of her claims it could not, on the material before it, accept the bare assertions of the Applicant. Accordingly, the Tribunal was not satisfied that the Applicant had a well founded fear of persecution on the basis of her belief in Falun Gong and would not face a real chance of persecution in the reasonably foreseeable future were she to return to the PRC.

The proceeding before this Court

1. The Applicant filed her Application in this Court on 16 November 2004, on the following grounds:

   1. I fear persecution for the reason of membership of a particular social group-Falun Gong if I return to P R China.

   2.  My fear is well-founded. I am a member of Falun Dafa. Falun Gong was outlawed in China since July 1999. I went to Beijing to appeal several times. In May 2002 I was arrested by Beijing police and sent to Tianjin detention center. There I was subjected to brutal torture.          

   These grounds disclose no reviewable error and are in the nature of merits review which this Court has no jurisdiction to conduct (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 per Gleeson CJ at [69]).

2. Pursuant to Short Minutes of Order made by consent on 26 November 2004, the Applicant was directed to file and serve an amended application giving complete particulars of each ground of review and any submissions, and any affidavit containing additional evidence relied upon, including a transcript of the Tribunal hearing by 25 March 2005.  She was further directed to file any further written legal submissions and any list of authorities upon which she intended to rely 14 days before this hearing.  No amended application or any other document has been filed by the Applicant in this Court.

3. The Applicant was unrepresented before the Court this morning although she had the assistance of an interpreter. Her complaint this morning centres around her contentions that the Tribunal erred in proceeding with its review without taking any further action to allow or enable the Applicant to appear before it.

4. The Applicant stated that she was in fact a Falun Gong practitioner but was unable to prepare documents because of her poor English and could not afford a lawyer. However, I note that, in her application for a protection visa, she had nominated the name and contact details of a migration agent. I also note that it would appear the Applicant chose not to avail herself of the panel advice scheme made available to her by this Court at the Directions hearing on 26 November 2004. There has otherwise been more than 12 months from when the Applicant filed her application to today’s hearing during which the Applicant had sufficient time to seek whatever assistance and advice she may have required.

5. On 5 August 2004, the Tribunal sent an invitation to the Applicant to appear at a hearing to give oral evidence and present arguments in support of her claims. That letter was sent to the Applicant at both the mailing address and home address identified by her in her review application. The letter was returned to the Tribunal marked “Return to Sender” on 6 August 2004, with the box “Left Address” ticked. Section 441A of the Act required that such an invitation to attend a hearing sent pursuant to s.425 of the Act is given to the Applicant in accordance with the Act if it is sent to the Applicant, relevantly, by pre paid post, within 3 working days, to the last address for service or the last residential address provided to the Tribunal by the Applicant. Having regard to the date stamp on the envelope of 6 August 2004, I am satisfied that the invitations sent to the Applicant by letter dated

   
   

   5 August 2004, was given to the applicant in compliance with s.441A of the Act.

6. Section 426A authorises the Tribunal, where it has complied with s.425 of the Act and the Applicant does not appear before the Tribunal on the day nominated, to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.

7. The Tribunal noted the fact that the Tribunal had sent the Applicant a s.425 invitation and that the letter was returned to the Tribunal unopened. The Tribunal noted that the applicant had no adviser and had not provided any telephone number or other means of contact. In those circumstances, the Tribunal decided to make its decision on the review without taking any further action to enable the Applicant to appear before it. I am satisfied that the decision by the Tribunal to proceed with its review was in accordance with its authority pursuant to s.426A of the Act.

8. It is a matter for the Applicant to satisfy the Tribunal that she has met the criteria referred to in s.36 and s.65 of the Act and is therefore a refugee. (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16])

9. The authorities have made it clear that the Tribunal is not bound to accept uncritically assertions made by applicants for protection visas (Randhawa v Minister for Immigration and Multicultural and Indigenous Affairs (1994) 52 FCR 437 at 451). The Tribunal considered the claims of the Applicant and found they were “too vague and full of unexplained inconsistencies” to enable the Tribunal to accept the Applicant’s claims at face value. The Tribunal gave reasons for the difficulties it had in being satisfied of the Applicant’s claims as referred to earlier in these Reasons.

10. The authorities have also made clear that an Applicant cannot be surprised that a Tribunal may want explanation about various claims in order to satisfy itself about the genuineness of a claimed subjective fear of persecution (NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5]).

11. 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.

12. 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.

13. 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 18 June 2004, acknowledging receipt of the application for review. In those circumstances, the Applicant is taken to have assumed the risk that unsatisfactory features of her 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, there being no jurisdictional error, 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 16 November 2004, is dismissed with costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Riddle

Date:  29 November 2005