SZEVN v Minister for Immigration
[2005] FMCA 1139
•2 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEVN v MINISTER FOR IMMIGRATION | [2005] FMCA 1139 |
| MIGRATION – Refugee – proper opportunity to explain case – Tribunal was wrong in its findings – independent country information – no evidence – no material – bias. |
| Migration Act 1958, ss.426A, 65, 36(2), 424A, 418(3), 418A, 424A(1) |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 Tin v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1109 at 53 Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 64 ALD 289 at 95 NAIH of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1010 |
| Applicant: | SZEVN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2093 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 2 August 2005 |
| Date of Last Submission: | 2 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. S. Koya |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant to pay the respondent’s costs set in the amount of $3000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2093 of 2004
| SZEVN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application filed in this Court on 7 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 May 2004 and handed down on 15 June 2004 to affirm the decision of a delegate of the respondent Minister made on 29 January 2004 to refuse a protection visa to the applicant.
The applicant is a citizen of the People's Republic of China who arrived in Australia on 1 January 2004. She claimed persecution in China on the ground of religion, namely her adherence to the Falun Gong movement. She claimed to have begun practising Falun Gong in 2000 and that she and others practiced in private. She claimed that local police came to know of this, and told them to stop, and subsequently the group was eventually forced to stop their practice. She left China because of the government's opposition to Falun Gong and because she was not able to practice her “belief”. She claimed to have continued this practice on arrival in Australia and stated that she feared “bullying and persecution” if she were to return to China and felt it would be unsafe for her to practise Falun Gong in China.
The applicant's application to this Court contains two unparticularised complaints:
“1. 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.”
In an amended application filed on 30 December 2004 the applicant by way of narrative refers to a number of findings made by the Tribunal and states that the Tribunal based its conclusion on “no evidence”, “no material” and did not refer to any independent information before making the decision. The applicant claims that the Tribunal was biased and that explains why it refused to accept any of the explanations of the applicant provided with her application.
The applicant's claims before the Tribunal were contained in a statement submitted with her protection visa application dated 12 January 2004 (Court Book 30 to CB 31), and in an attached statement to her application for review to the Tribunal dated 2 March 2004 (CB 49). The Tribunal wrote to the applicant by letter dated 6 April 2004 (CB 52 to CB 53) advising that it had considered the material before it in relation to her application but was unable to make a favourable decision on this information alone. The Tribunal invited the applicant to come to a hearing to give evidence and present arguments in support of the claims. The Tribunal provided a time, date and place for the hearing, and enclosed a “Response to Hearing Invitation Form” with instructions that the applicant should complete and return it. The Tribunal’s letter contained a notice that if the applicant did not attend the hearing, and the Tribunal did not otherwise postpone the hearing, it could make a decision on her case without further notice. The letter was sent to both the applicant's home address and mailing address as provided by the applicant in her application for review (CB 45). No other contact details had been provided by the applicant to the Tribunal. The applicant did not respond to this letter and did not attend the hearing before the Tribunal.
In the “Findings and Reasons” in its decision record at CB 65, the Tribunal noted that it had advised the applicant of its view of the information already before it and that it had invited the applicant to attend the hearing and that no response was received. As the applicant did not attend the hearing the Tribunal proceeded to make a decision pursuant to s.426A of the Migration Act without taking any further action to enable the applicant to appear before it. The Tribunal's decision turned on the issue of it not being satisfied that the applicant had a well founded fear of persecution. The Tribunal noted the claims made by the applicant, but set out at CB 65.9 to CB 66.8 a number of relevant matters on which it was unable to be satisfied. The Tribunal’s view, stated at CB 65.8, was that it had little more before it than vague assertions contained in the applicant's protection visa application and in her brief written statement to the Tribunal, and that the Tribunal had not had the opportunity through a hearing or any other means to obtain further information to determine the veracity of the applicant's claims and their relevance to her application for refugee status.
The applicant appeared unrepresented before me today and was assisted by an interpreter in the Mandarin language. At the outset of the hearing the applicant raised two preliminary issues. First, the applicant claimed that she had not received a copy of the respondent’s written submissions. Ms. Koya who appeared for the respondent submitted that the submissions were in fact sent to the applicant’s address for service by registered post on 27 July 2005. The respondent tendered a copy of the letter enclosing the respondent’s submissions, as Respondent’s Exhibit 1 (“RE 1”). In response, the applicant stated that she was absent from the address to which the submission were sent on that date because she had gone to Melbourne to find work. The applicant failed to explain why she did not notify the Court or the respondent of her absence from this address and also of any alternative addresses for service.
Second, the applicant sought an adjournment to engage a lawyer. She was unable to provide an explanation as to why she had not obtained the services of a lawyer in the last nine months. The applicant attended the first Court date in this matter on 8 October 2004 and was assisted by an interpreter in the Mandarin language. The Court by consent set the final hearing date in her matter for 2 August 2005. She has had notice of the date of the hearing today for well over nine months. The applicant failed to provide the Court with any reasonable explanation as to her failure to engage a lawyer to date nor did she put forward anything to suggest the prospect of engaging representation in the near future. I refused the adjournment requested.
The applicant had been referred to a panel lawyer pursuant to the Court’s Legal Advice Scheme and confirmed at the hearing before me that she had received such advice. In spite of this the applicant, in supporting her written claims, was unable to provide any further particulars or explanation for her claim that she was not given a proper opportunity to explain her case clearly before the Tribunal. In the circumstances before me it is clear that the Tribunal wrote to the applicant inviting her to a hearing before it to provide further evidence and argument in support of her case. It wrote to the only address provided by the applicant. She has not explained why she failed to advise the Tribunal of any interim address or the steps to have correspondence forwarded to her in circumstances where she said she had gone to Melbourne. In this regard I also note the Tribunal’s advice to the applicant of 3 March 2004 (CB 50 to CB 51) that she should contact the Tribunal if she changed her residential or mailing addresses. The Tribunal specifically raised the issue of the applicant’s failure leading to her not physically receiving the invitation to hearing letter. It is clear, as referred to in the Tribunal’s “Findings and Reasons” at CB 65.2 that a person claiming fear of persecution does not establish the genuineness of the asserted fear as being well founded by merely making a claim. Section 65 of the Migration Act requires that the decision maker achieve a requisite level of satisfaction as to the relevant criteria for the visa applied for as prescribed by the Act or the Regulations. In relation to protection visas s.36(2) sets out a criterion for a protection visa that the applicant is a person to whom the decision maker is satisfied that Australia has protection obligations under the Refugees Convention. It is clear on the case before me that the Tribunal could not be satisfied on the material before it that the applicant was owed such protection by Australia. The applicant was provided with the opportunity to support her claims at the hearing before the Tribunal. The Tribunal took all reasonable steps to advise the applicant of the opportunity of a hearing and the consequence of not attending. The Tribunal's findings were open to it on the material before it and it gave reasons for its findings. The applicant cannot now complain that the Tribunal simply refused to consider the application, and concluded without “any evidence” that she is not a Falun Gong member. Further, in the circumstances I cannot see that the Tribunal was under any obligation to obtain any further information from the applicant. Section 424A of the Act does provide for the Tribunal to seek additional information but this is not expressed in mandatory terms. Clearly the applicant was provided with the opportunity to pursue her claims and did not take up the opportunity that was offered.
Although not raised by the applicant before me, I did consider whether there was any issue arising in the circumstances of this case in light of the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. The Tribunal did make a reference in its “Findings and Reasons” to the applicant's statement submitted with her protection visa application. I took the view that in the circumstances, the Tribunal took the view at CB 65.8 that the applicant's protection visa application contained little more than vague assertions. I took the view that the Tribunal's subjective thought processes and its qualitative assessment of this material provided to the Tribunal by the applicant (by way of s.418(3) of the Act) is not information for the purposes of s.424A(1) of the Act. (see Tin v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1109 at 53 per Sackville J., and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 64 ALD 289 at [95] per Allsop J.) In NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1010 at [4]-[9] Branson J. took the view that an impression formed by the Tribunal in respect of the material otherwise put before the Tribunal pursuant to s.418(3) of the Act is not information within the meaning of s.424A(1). The clear intention behind the majority decision in SAAP was that the decision maker needs to properly comply with a statutory regime which purports to be an exhaustive statement of the natural justice rules and the principles underlying procedural fairness in administrative decision making. The case before me does not contain circumstances where the information, as in SAAP, was obtained from a third party, albeit another family member, but nonetheless would not have been known to be applicant. The applicant before me in the context of any broader principles of fairness would have known of the matters contained in her own application for a protection visa. In any event, as I said, I took the view that the Tribunal's reference to the applicant's protection visa application was clearly in the context of an assessment that it contained little more than vague assertions and therefore was not information for the purposes of s.424A(1) of the Act.
On claims that were put before the Tribunal, it could not be satisfied that these claims amounted to persecution for purposes of the Refugees Convention. It gave the applicant an opportunity to appear before it and provide further arguments in support of the claims and the applicant on her own admission put herself in circumstances where she did not avail herself of this opportunity. There was no fault on the part of the Tribunal in this regard. The Tribunal's findings were open to it on the material before it, and it gave reasons for its findings. I can see no error in how the Tribunal has approached its task and made its decision and on this basis the application is dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 18 August 2005
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