SZFLA v Minister for Immigration - [2006] FMCA 1216

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFLA v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1216

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant declining hearing invitation – RRT finding insufficient material to support a favourable decision – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 312
Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Mohammed v Minister for Immigration [2005] FCAFC 47
Re Minister for Immigration and Anor; Ex parte Eshetu (1999) 197 CLR 611
SZCIA v Minister for Immigration [2006] FCA 238
SZEZI v Minister for Immigration [2005] FCA 1195

Applicant:

SZFLA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG64 of 2005

Judgment of:

Driver FM

Hearing date:

22 August 2006

Delivered at:

Sydney

Delivered on:

22 August 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Court directs that the Refugee Review be joined as the second respondent to the application.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG64 of 2005

SZFLA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was signed on 19 November 2004 and was notified to the applicant by letter dated 9 December 2004. These proceedings began with a judicial review application filed on 11 January 2005. The applicant now relies upon an amended application filed on 6 April 2005. In that amended application the applicant asserts that the RRT did not properly consider his claims and failed to refer to any proper independent information and made a decision without sufficient supporting documents and evidence.
Secondly, the applicant asserts that the RRT’s satisfaction that he was not a refugee was not based upon reasoning which provided a rational or logical foundation for that belief. Thirdly, the applicant asserts that the RRT did not observe the Migration Act 1958 (Cth) (“the Migration Act”) properly in making its decision and, finally, he asserts that the RRT failed to consider his claims. The amended application includes a promise of further information but nothing further has been filed by the applicant apart from a notice of change of address. Curiously, the amended application includes particulars asserting a failure by the RRT to disclose to the applicant independent information it relied upon. This appears to conflict with ground 1 in the amended application which asserts a failure to have regard to any independent information.
The background to this matter is otherwise set out in written submissions filed on behalf of the Minister on 15 August 2006. I adopt paragraphs 2 to 4 of those submissions as background for the purposes of this judgment:
The applicant:
a)claims to be a citizen of the People’s Republic of China;
b)entered Australia on 3 May 2004; and
c)lodged an application for a protection visa on 27 May 2004: court book, page 71.
On 21 June 2004 a delegate of the Minister refused to grant the applicant a protection visa.
Applicant’s claims
The applicant claimed to have a well-founded fear of persecution because of his Falun Gong association: court book, page 74.
On 13 October 2004 the RRT invited the applicant to a hearing on 24 November 2004: court book, page 60.
On 17 November 2004 the RRT received a response to hearing invitation form from the applicant which provided that the applicant did not want to come to a hearing and that he consented to the RRT proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it: court book, page 63.
RRT decision
The RRT member concluded that she could not be satisfied about the applicant’s claim that he was an active member of Falun Gong and that as a consequence of his participation in Falun Gong he came to the adverse attention of the Chinese authorities and that he faces arrest on his return to China by reason of his association with Falun Gong (court book, page 74). This finding was based on the “very limited, formulaic and vague evidence available”. She was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.
I received as evidence the court book filed on 8 February 2005. That discloses that on 30 October 2004 the RRT wrote to the applicant at his nominated address for service inviting him to a hearing to be held on 24 November 2004 (court book, pages 60-61). In that letter the applicant was put on notice that the RRT had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The applicant declined that hearing invitation (court book, page 63). He appears to have given nothing further to the RRT in support of his review application. In the circumstances, it is unsurprising that the presiding member found that she could not be satisfied on the evidence before her that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.
In short, there was insufficient material before the RRT for it to do anything other than affirm the decision under review. The applicant is mistaken in thinking that the RRT found that he was not a refugee. Rather, the RRT was not satisfied on the material before it that he was a refugee. The evidence supporting that conclusion was the inadequacy of the material provided by the applicant in his protection visa application. The RRT was entitled to reach the conclusion it did on that material.
The decision did not depend upon any independent country information but the RRT was not required to base its decision upon such information. Because the decision was not based upon any independent country information there would have been no obligation to disclose it to the applicant even if such a legal obligation had existed. In fact, the decision did not depend upon any information in particular, it depended upon a lack of information. Those circumstances did not give rise to any obligation of disclosure pursuant to s.424A of the Migration Act. I otherwise agree with and adopt for the purposes of this judgment paragraph 6 of the Minister’s written submissions:
The first respondent submits that:
a)In respect to the claims summarised in paragraphs 5.1(a) and (b), the RRT decision was based on a finding that the material in support of the applicant’s claims was inadequate and accordingly the RRT could not reach the requisite level of satisfaction. This finding was open to the RRT member on the evidence before her and accordingly was not unreasonable or illogical: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 312 at 355-7; Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 138; Re Minister for Immigration and Anor; Ex parte Eshetu (1999) 197 CLR 611 at [145]. The RRT member was not required to consider independent country information or make inquiries: Mohammed v Minister for Immigration [2005] FCAFC 47 at [24].
b)In respect to the claims summarised in paragraphs 5.1(c), the RRT did not breach the Migration Act. Specifically:
i)The RRT did not breach s.424A(1) by affirming the decision based on the inadequacy of the material in support of the applicant’s claims. Such inadequacy is not information for the purpose of s.424A: SZEZI v Minister for Immigration [2005] FCA 1195 at [29]; SZCIA v Minister for Immigration [2006] FCA 238 at [12] and [14].
ii)The RRT was not obliged to invite the applicant to appear before the RRT to give evidence and present arguments relating to the issues arising in relation to the decision under review in circumstances where the applicant consented to the RRT deciding the review without the applicant appearing before it: s.425(2)(b).
c)There is no substance to the claim that the RRT did not consider the applicant’s claims. Further, there is no substance to the particulars that refer to independent country information.
The applicant elected not to seek to expand upon his application in oral submissions.
I find that the decision of the RRT is free from any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs on a party/party basis fixed in the sum of $3,200 inclusive of counsel fees. This was a relatively straightforward matter. Nevertheless, the Minister was represented at two court events and was required to consider an application and an amended application.

A court book of 75 pages was prepared and written submissions were also prepared by Mr Mitchell on behalf of the Minister. Although the matter appeared very straightforward I accept that it was reasonable for the Minister to be represented by counsel today at least as a precaution against something unexpected arising. The applicant did not make any submissions on costs. I accept that the claim of $3,200 is a fair and reasonable party/party assessment of costs in this matter.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $3,200.
I order that the Refugee Review Tribunal be joined as the second respondent to the application.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 25 August 2006