SZFMZ v Minister for Immigration
[2006] FMCA 974
•4 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFMZ v MINISTER FOR IMMIGRATION | [2006] FMCA 974 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – whether Tribunal complied with notification obligations in relation to invitation to hearing. |
| Migration Act 1958, ss.425, 426, 441 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 109 SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 |
| Applicant: | SZFMZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG139 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 4 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the Refugee Review Tribunal be joined as second respondent to the proceedings.
That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG139 of 2005
| SZFMZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 December 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant, who claimed to be a citizen of the People's Republic of China, arrived in Australia in June 2004. In a statement in support of his protection visa application he claimed to have become a Falun Gong practitioner while living in the United States between 1997 and 2002, and that on his subsequent return to China he was detained and mistreated, kept under police surveillance, and that his freedom of movement and speech were restricted.
His application was refused and he sought review by the Tribunal by application lodged on or about 11 August 2004. In that review application he claimed that he had been detained in China because he had travelled overseas and attracted more attention because he was suspected of having contact with foreign organisations. He claimed that China was full of bribery, corruption and bureaucracy and that he could hardly breathe in that environment; and that he hoped he could do his best to help China to be changed completely.
It is relevant to the grounds relied on by the applicant in these proceedings to note that in the review application the applicant provided a home address and a mailing address. He did not provide a contact telephone number. Nor did he appoint an authorised recipient.
The Tribunal wrote to the applicant by letter dated 13 October 2004, sent by registered post to both his mailing address and also to his home address. The affidavit of Ishan Fuhab Muthalib sworn on 27 June 2006 and the annexed extract from the registered post records of the Tribunal reveal that these letters were sent on 13 October 2004 by registered post. The court book indicates that the copy of the letter sent to the applicant's home address was returned to the Tribunal on 18 November 2004.
In its reasons for decision the Tribunal referred to its invitation of
13 October 2004 in which it advised the applicant that it 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.
It noted that it had invited the applicant to attend a hearing at a time and place specified on 23 November 2004, and advised him by that letter that if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice. The Tribunal reasons for decision state that no response was received, apart from the one returned unclaimed letter.
The applicant did not attend the hearing. The Tribunal stated that it took several steps to locate the applicant. This appears from the No Reply to Hearing Invitation form to have involved checking the Tribunal and Departmental file and database.
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 pursuant to s.426A of the Migration Act 1958 (Cth) (the Act).
The Tribunal set out the applicant's claims in his protection visa application and review application and stated that it had considered information from external sources relevant to the applicant's claim that he was a Falun Gong practitioner and a political activist. In its findings and reasons the Tribunal found that the applicant had presented his claims poorly and that he provided broad, vague claims regarding his interest and involvement with Falun Gong and political activities but no meaningful details regarding these matters.
The Tribunal found that it could not determine from the applicant's evidence if indeed he was involved with Falun Gong or if he had any involvement in political activities either in China or overseas.
The Tribunal found that it could not be satisfied on the evidence provided by the applicant that he was a person of interest and concern to the PRC when he left the country in 2004.
The Tribunal was also unable to determine if the applicant had had any involvement with Falun Gong or political activities in Australia or if he intended to be involved in such activities in the reasonably foreseeable future. The Tribunal referred to the absence of country information to indicate that the authorities in China targeted former Falun Gong practitioners or former political activists and noted that it had no information from the applicant regarding his current or future political Falun Gong activities. It was satisfied that any previous involvement the applicant had in such activities would not make him a person of concern to the PRC authorities unless he continued to actively participate in those activities.
It reiterated that it had not been able to determine the extent or nature of the applicant’s involvement with Falun Gong or political activities, if he was currently involved in any such activities, or how he intended to express his views in the reasonably foreseeable future. The Tribunal found that without further information from the applicant regarding these matters it could not be satisfied he was implicated in Falun Gong or political activities which would attract the adverse attention of the PRC authorities in the reasonably foreseeable future.
The Tribunal noted that the applicant had been put on notice that the Tribunal was not satisfied by the evidence he had provided in support of his application, that he did not provide further information despite ample opportunity to do so and that many questions regarding his previous and future circumstances remained unanswered. The Tribunal concluded that in the absence of further information and in view of its findings, it was not satisfied by the evidence before it that the applicant had a well-founded fear of persecution in China for reasons of political opinion or any other Convention reason.
The applicant sought review of the Tribunal decision by application filed in this court on 18 January 2005. He filed a document headed Amended Application on 22 June 2005. He has not filed written submissions and, when offered an opportunity to elaborate on his contentions in the hearing today, he did not add anything to his application or amended application.
The first ground that can be discerned from the application and amended application is a contention that the applicant was not notified properly of the Tribunal hearing. The amended application contends that the letter of 13 October 2004 was not finally received and translated for the applicant by a friend until the hearing date had passed, that the period between 13 October and 23 November 2004 (which was described as being 28 working days) was insufficient, and that the Tribunal failed to give the applicant an opportunity and time to respond to the invitation.
However, as contended for by the respondent, it is apparent that the invitation in the letter of 13 October 2004 was despatched in compliance with the applicable provisions of the Migration Act 1958. The Tribunal met its obligations under s.425 to invite the applicant to appear before it at the hearing. The notice of invitation to appear (the letter of 13 October 2004) complied with the requirements of s.425A in relation to the contents of the notice. As set out in the affidavit of Ishan Fuhab Muthalib, in the accompanying material and in the Tribunal reasons for decision, the notice was given to the applicant by one of the methods specified in s.441A of the Act, in that it was despatched by pre-paid post to the last address for service provided to the Tribunal by the applicant in connection with the review, and, indeed, also sent to the last residential address provided to the Tribunal by the applicant in connection with the review. The Tribunal registered post records indicate that this occurred on the date on which the letter was dated: 13 October 2004, and hence it was within three working days of the date of the document.
Thus the requirements of s.441A(4) were satisfied and, in accordance with s.441C(4)(a), the applicant is taken to have received the document seven working days after the date of the document, which the respondent calculates would be by 22 October 2004.
The applicant contended that he was given an insufficient period of notice. Section 425A(3) provides that:
The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
In this case, a period is prescribed under regulation 4.35D. The applicant not being a detainee, regulation 4.35D(b) provides that:
The prescribed period starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.
Thus the applicant was given the prescribed period of notice in respect of the hearing scheduled for 23 November 2004.
There is no affidavit evidence before the Court as to the time of actual receipt of the document, although in the application the applicant stated that he received the letter after the hearing. However, in circumstances where the Tribunal has complied with the regime in ss.425, 425A, 441A and 441C of the Act, as the Full Court of the Federal Court stated in SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 at [17] it is:
... not to the point that actual notice was not received...until after the date for the hearing.
As their Honours went on to state:
Compliance with the applicable statutory regime satisfies the requirements of procedural fairness to an applicant.
Also see VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14]. No jurisdictional error has been established by the applicant in relation to the Tribunal's obligation to invite him to a hearing and notify him of the invitation.
The applicant also contended in his amended application that after receiving the invitation, he authorised a friend to contact the Tribunal to see whether a new hearing could be arranged. Again, there is no evidence to this effect and, as the applicant concedes in his amended application, he did not appoint his friend as authorised recipient. Moreover, the Tribunal had, in any event, met its obligations under the Migration Act 1958. As expressed this contention does not establish jurisdictional error on the part of the Tribunal.
It is further claimed that the Tribunal did not assess the application carefully. This appears to be a contention that the Tribunal did not consider the claims made by the applicant that are summarised thereafter, but rather that it just declined the application because the applicant failed to attend the interview. The claims referred are the applicant's stay overseas before his return to China, his claimed persecution by the government because of his involvement with Falun Gong and his opponent opinion against the government, and that his fear was based on his previous activities in China and the United States.
Jurisdictional error is not established on the basis contended for by the applicant. The Tribunal wrote to the applicant informing him that it could not make a decision in his favour based on the material before it. It met its obligation to invite him to a hearing. The applicant did not utilise that opportunity. The Tribunal summarised the claims made by the applicant both in his protection visa application and in his review application, including those aspects of his claims that related to his involvement in Falun Gong and political opinion and previous activities in China and the United States. However, the Tribunal found in relation to such claims that they had been presented poorly and were broad and vague claims, lacking meaningful details. On that basis the Tribunal could not determine from the evidence before it that the applicant was involved with Falun Gong or if he had any involvement in political activities either in China or overseas.
It considered not only the applicant's claims about previous activities but also the absence of evidence as to present involvement or possible future involvement or expression of views in the future. While it also considered country information in relation to the situation of past Falun Gong activists and political activists in China, it did so after having already indicated that it could not determine from the applicant's evidence if indeed he was so involved, so that it could not be satisfied on the evidence before it that the applicant was a person of interest and concern to the PRC when he left the country.
It is clear from the concluding findings of the Tribunal that the Tribunal was unable to be satisfied on the paucity of evidence before it of the applicant's claims. It noted the absence of further information and that many questions regarding both previous and future circumstances of the applicant remained unanswered.
The findings of the Tribunal addressed the claims of the applicant and were open to it on the material before it. It has not been established that the Tribunal erred in the manner contended for by the applicant or failed to understand its task or perform it according to law.
Finally, the applicant claimed that imprisonment awaited him should he return to China. However such claim seeks merits review, which is not available in this Court. No jurisdictional error has been established.
The respondent seeks that, consistent with the approach in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 109, the Tribunal should be joined as second respondent to the proceedings. I agree that this is appropriate and shall make such an order.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. There is nothing in the circumstances before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The amount sought is appropriate in the light of the nature of this and other similar matters.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 20 July 2006
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