SZFMG v Minister for Immigration
[2006] FMCA 1054
•9 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFMG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1054 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 426A |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 SAAP v Minister for Immigration [2005] HCA 24 SZCIA v Minister for Immigration [2006] FCA 238 SZEZI v Minister for Immigration [2005] FCA 1195 |
| Applicant: | SZFMG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG107 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 26 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Mr B Cramer |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 13 January 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG107 of 2005
| SZFMG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 13 January 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 11 November 2004 and handed down on 10 December 2004, affirming a decision of a delegate of the first respondent made on 19 July 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZFMG”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Ms M Males, reference N04/49733, contains the following background information. The applicant claims to be a citizen of the People’s Republic of China (“PRC”) who arrived in Australia on 20 June 2004. On 12 July 2004, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 19 July 2004, a delegate of the Minister refused to grant a protection visa and on 20 August 2004, the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 50)
At the time of the protection visa application, the applicant claimed to be 49 years old. The statement attached to his application contains the following information:
I have the following reasons to apply for protection visa.
With the introduction from my friends in China, I began to study and practise Falungong in December 1997 for the purpose of improving my health. After practising Falungong for several months, my health had been improved a lot. I worked in Jianhua Glass Factory as a labour worker for many years. I introduced Falungong to lots of colleagues. They began to show interest in learning it for the same purpose that I had. We always practised Fa Lun Da Fa together in public area like in parks or at home.
Falungong was banned in China in 1999. Falungong organizations in China were forced to be closed and many Falungong practisers (sic) were arrested and put into prison or limited with free movement. Of course, I did not escape the punishment from the government. I was called to go to the local police office to confess my conviction for learning and practising and spreading Falungong. I still believe that there is nothing wrong with it. Actually I have received a lot of benefits from it. Thus, I insisted practising (sic) Falungong with my friends who had the same belief as I had.
In February 2002 I was forced to attend re-education courses for Falungong practisers (sic). During the re-educational courses I was treated badly both physically and spiritually. In April 2003 I was dismissed from my company where I had worked for twenty-five years.
I bribed a government official to get a passport and applied for visa to Australia…if I went back to China, I would meet much more severe punishment by the Chinese government.(CB 52-53)
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s findings and reasons are contained in paragraphs 4 and 5 of the written submissions of Mr Cramer, solicitor for the respondents:
4.On 12 October 2004, the Tribunal wrote to the applicant pursuant to section 425 of the Act advising him it was unable to make a favourable decision solely on the information before it. The Tribunal invited the applicant to give oral evidence at a hearing on 11 November 2004. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received and the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. Accordingly, the Tribunal proceeded to make a decision based upon the evidence before it pursuant to section 426A of the Act.
5.The Tribunal was satisfied that the applicant is a citizen of China. However, given the lack of detail in his claims and without the opportunity to test his assertion at a hearing the Tribunal was not prepared to accept the applicant’s claims at face value. As a result, it was unable to be satisfied that the applicant was ever a Falun Gong practitioner or that he was mistreated as he claimed. The Tribunal was not satisfied on the limited evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.
Application for review of the Tribunal’s decision
On 13 January 2005, the applicant filed an application for review in this Court under s.39B of the Judiciary Act setting out the following grounds:
1.I am a refugee according to the definition in the Article 1A(2) of the Convention and the Refugees Protocol.
2.I fear the persecution from my own country and the fear is well founded. I began to study and practise Falungong in December 1997 for the purpose of improving my health. Falungong was banned in China in 1999. I was called to go to the local police office to confess my conviction for learning and practising and spreading Falungong. In February 2002 I was forced to attend re-educational courses for Falungong practisers. During the re-educational courses I was treated badly both physically and spiritually. In April 2003 I was dismissed from my company where I had worked for twenty-five years.
On 20 April 2005, the applicant filed an amended application containing the following statements:
I began to study and practise Falungong in December 1997 for the purpose of improving my health. I introduced Falungong to lots of colleagues. They began to show interest in learning it for the same purpose that I had. We always practised Fa Lun Da Fa together in public area like in parks or at home.
Falungong was banned in China in 1999. Falungong organizations in China were forced to be closed and many Falungong practisers were arrested and put into prison or limited with free movement.
I was called to go to the local police office to confess my conviction for learning and practising and spreading Falungong. I insisted practising Falungong with my friends who had the same belief as I had.
In February 2002 I was forced to attend re-education courses for Falungong practisers. During the re-educational courses I was treated badly both physically and spiritually. In April 2003 I was dismissed from my company where I had worked for twenty-five years.
Reasons
The applicant is a self-represented litigant and appears in this Court with the assistance of a Mandarin interpreter. The grounds in his original application are vague and unparticularised. At first directions, the applicant declined an offer for him to participate in the Court’s Legal Advice Scheme. He was given leave to file an amended application with complete particulars of his grounds of review. An amended application was filed; however, it repeated the applicant’s claims of Falun Gong practice and the harm he suffered in the PRC because of his adherence to the practice. The applicant was also ordered to file written submissions in support of his application, together with a list of authorities, 14 days prior to final hearing. This order was not complied with.
When the applicant was invited to make oral submissions in Court, he made a brief statement that he was a Falun Gong practitioner and that he had been persecuted by the authorities in the PRC.
The Tribunal had only very limited material available to it consisting of the original application to which was attached a one and half page statement typed in double space.(CB 23-24) In it the applicant briefly stated his background. The applicant describes how he became involved in Falun Gong in 1997. After Falun Gong was banned in 1999 he continued to practice and participate in the movement. This led to his forced involvement in a re-education programme where he claims he was treated badly both physically and spiritually. In April 2003, he was dismissed from work after 25 years service. It also contained a brief explanation in respect of his departure from the PRC. The application to the Tribunal contains a half-page statement consisting of three typed paragraphs, which in effect repeats the material in the statement attached to the original visa application.(CB 42) None of these statements are signed or dated. However, they are referred to in the respective application forms.
The Tribunal wrote to the applicant on 12 October 2004, indicating that it had considered all 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 was invited to attend a Tribunal hearing on
11 November 2004 to give oral evidence and present arguments in support of his claims. The letter clearly stated the consequences if the applicant failed to attend the Tribunal hearing, or did not formally seek to have the hearing postponed or transferred to another date. The applicant was also advised that if he wished to bring any witnesses to give evidence in support of his application, he should complete the relevant part of the enclosed form. Further, he was invited to submit further written submissions or any other documentation which he wished to rely upon. The decision records that the Tribunal received no response to the hearing invitation and that the letter was returned to the Tribunal as unclaimed. As the applicant had not provided a telephone contact, the Tribunal was unable to follow up on these issues. The applicant did not appear before the Tribunal on the day of the scheduled hearing. Pursuant to s.426A of the Act, the Tribunal made its decision on the review without taking any further action to enable the applicant to appear before it.
In the decision under the heading ‘Findings and Reasons’, the Tribunal records the following:
The applicant’s claim lack detail in certain respects. He claims to have practised Falun Gong since December 1997 but does not state how he practised it or how often. He says he introduced Falun Gong to colleagues but does not describe how. The applicant does not specify when he was called to the local police station to make his confessions or how he was mistreated whilst attending the “re-educational courses”. Further, his claims are merely assertions. Given the lack of details in his claims and without the opportunity to test his assertions at a hearing the Tribunal is not prepared to simply accept the applicant’s claims. Thus, the Tribunal is not satisfied that the applicant was ever a Falun Gong practitioner or that he was mistreated as he claims.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.(CB 54)
The circumstances of this case are similar to those in SZEZI v Minister for Immigration [2005] FCA 1195 (“SZEZI”). In that case, Allsop J found that the applicant did not attend the Tribunal hearing and His Honour records the relevant reasons from the Tribunal decision Tribunal (SZEZI at [8] and [29]):
8. The relevant reasons of the Tribunal were as follows:
The applicant [name provided] has not provided the level of detail necessary to satisfactorily establish the relevant facts in his case…how he was able to leave Bangladesh unharmed if, as he claims, he is a risk of [sic] being killed or crippled because of his sexual preference, why he returned to Saudi Arabia after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known to others given his claim that his sexual preference would be known if he returned there now.
29.On one view, it might be said that since the only information that was before the Tribunal about the appellant’s circumstances was information not withdrawn from the operation of s424A (1) by s424A (3)(b), it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF I discussed the purpose of s424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.
In SZCIA v Minister for Immigration [2006] FCA 238 which is another matter where the applicant did not attend the Tribunal hearing, the Federal Court emphasised the need to make an evaluation of the Tribunal’s reasons. Justice Allsop stated at [9], [11] and [12] of that decision:
9.The Tribunal after dealing with the legislation and applicable law referred to the departmental file, which was before the Tribunal. It is clear from the cases dealt with up to and including SZEEU v Minister for Immigration and Multicultural and Indigenous [2006] FCAFC 2 that the departmental file may well contain information the subject of section 424A and within the meaning of that section. However, as I sought to make clear in SZEEU at [208] – [216], and in [216], whether information is the reason or a part of the reason depends upon a judgmental analysis of the reasons of the Tribunal for why the Tribunal came to the view it did.
10. …
11.The Tribunal's obligation in relation to the grant or refusal of visas is contained within ss 36 and 65 in particular of the Migration Act. If the Tribunal is not satisfied that Australia has protection obligations in relation to the applicant the Tribunal must refuse the visa. Thus, it is necessary to understand why it was that the Tribunal reached the view that it did in relation to this applicant's claims, and in particular whether any information was the reason or a part of the reason for the decision.
12.In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain.
The Tribunal in the present proceedings did more than the Tribunal in SZEZI as is apparent from its ‘Findings and Reasons’. It referred to the applicant’s background information taken from his protection visa application and identified the critical matters it would have liked to have explored with the applicant at the hearing.(CB 53-55)
As in SZEZI, this was not the reason or part of the reason for the Tribunal’s decision. It was referred to by the Tribunal merely as another piece of information which it considered crucial and intended to discuss with the applicant, had he chosen to attend the hearing.
The reasoning of Allsop J in SZEZI and SZCIA v Minister for Immigration applies to the present case. The Tribunal did not make positive findings of fact about the position of the applicant, but rather rejected his claims because of its inability to be satisfied, on the lack of information before it, that Australia owed protection obligations to him under the Refugees Convention. This proposition is clear from the Tribunal’s conclusion at CB 61:
The Tribunal is unable to establish the relevant facts and is not satisfied, on the limited evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.
Conclusion
The applicant in these proceedings is a self-represented litigant, appearing with the assistance of a Mandarin interpreter. This places an obligation on the Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Mr Cramer, appearing for the respondents, assisted the Court with written submissions, which were supplemented by oral submissions, in respect of the application and recent developments that have had a direct impact on these proceedings.
I acknowledge the applicant is faced with great difficulty as he does not speak the language nor does he understand the legal system in which he has brought these proceedings. I am satisfied that the applicant has been given the opportunity to receive independent legal advice under the Court’s sponsored scheme, and to amend his application. It was apparent that the applicant did not comprehend aspects of the proceedings or how he was to succeed in his case. I am satisfied that no grounds are identified in his amended application. Neither is it apparent that any other grounds of review exist which suggests that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 8 August 2006
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