SZFNK v Minister for Immigration - [2006] FMCA 859

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFNK v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 859

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, 424A, 426A, 483A, 494B, 494C

Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration v VSAF of 2003 [2005] FCAFC 73
SAP v Minister for Immigration [2005] HCA 24
SZCIA v Minister for Immigration [2006] FCA 238
SZEEU v Minister for Immigration [2006] FCAFC 2
SZEZI v Minister for Immigration [2005] FCA 1195
WAGP of 2002 v Minister for Immigration (2002) 124 FCR 276

Applicant:

SZFNK

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG167 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

13 June 2006

Delivered at:

Sydney

Delivered on:

30 June 2006

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person with the assistance of a Mandarin interpreter

Advocate for the Respondents:

Ms K Rose

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The application 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

SYG167 of 2005

SZFNK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS 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) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 19 January 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 18 November 2004 and handed down on 17 December 2004, affirming a decision of the delegate of the first respondent made on 10 August 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZFNK”.
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 David Connolly, reference N04/49845, provides the following background information. The applicant, who claims to be a citizen of the People’s Republic of China (“the PRC”), arrived in Australia on 22 July 2004. On 2 August 2004, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 10 August 2004, a delegate of the Minister refused to grant a protection visa and on 14 September 2004, the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 51)
The applicant stated in his original application that he is a 44 year old married Chinese citizen, born in Jilin, China. He gave his occupation as technician and his residence as Beijing, where his wife also resides. The applicant claims that he was very active in debates and activities for freedom and democracy in the PRC. He also supported the independence of Tibet. In 1989, he was present and witnessed the student demonstration for democracy in Tiananmen Square. He claimed that he could not stand the Chinese political system and the way it treated people. The applicant became a Falun Gong adherent in 1998 and practiced the meditation and exercises for his health. He claims he now cannot live without Falun Gong. The practice of Falun Gong was barred by the authorities in 1999. The applicant claims to now practice Falun Gong secretly for fear of further persecution. In September 2003, while practising Falun Gong in the PRC, the police came and arrested the practitioners. The applicant was lucky to leave in time. With the help of a friend he obtained a passport and came to Australia for protection.(CB 53-54)

The tribunal’s findings and reasons

A convenient summary of the Tribunal’s findings and reasons was contained in the respondents’ written submissions and I adopt the following paragraphs of those submissions:
13.The RRT listed a number of aspects of the applicant’s claims which it was unable to seek further information from the applicant, namely:
13.1 His claim to have been present in Tiananmen Square in 1989;
13.2 That he claimed to have hidden from the authorities in 1989;
13.3 That he claimed to have become a Falun Gong follower;
13.4 How he escaped arrest in September 2003 when police broke up a Falun Gong exercise session. (CB 54-55)
14.Owing to the lack of information provided by the applicant the RRT was unable to be satisfied that he had never been persecuted for attending the Tiananmen Square demonstrations, nor that he was persecuted because of his practice of Falun Gong. The RRT therefore could not accept the applicant would face a real chance of persecution if he was to return to China. (CB 55)

Application for review of the tribunal’s decision

On 19 January 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following three grounds:
1.The RRT failed to exercise its jurisdiction as it failed to make any finding as to whether I would be persecuted if I attempted to practise Falungong in China.
2.The tribunal refused my application just because I could not attend the hearing on that day and I was not given another chance for the hearing.
3.The Tribunal refused to consider my application just because I could not attend the hearing scheduled by them. (copied without alteration or correction)
On 2 May 2005, the applicant filed an amended application, which contained a single ground which was particularised:
That the RRT decision was affected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars
1.    The Tribunal failed to exercise its jurisdiction as it failed to assess the chance of my persecution and persecuted on my return to China based on the member of a particular social group in China. I was persecuted and discriminated because of my being a member of “Falun Gong”.
2.    The Tribunal failed to consider my claims and failed to provide me adequate particulars of the independent information.
3. The Tribunal did not observe Migration Act 1958 to making the decision.
4.    The Tribunal failed to provide a rational foundation for its decision.
5.    The Tribunal did not provide me an adequate opportunity to respond the substance of the information.
6.    The Tribunal finding that the totality of the country information does not show that in my position in China. (copied without alteration or correction)

Reasons

The applicant is a self-represented litigant, appearing with the assistance of a Mandarin interpreter. The applicant appeared at first directions before a Registrar of this Court who made consent orders. These orders included the filing and serving of an amended application giving complete particulars of each ground of review relied upon. This order was complied with. The applicant was also required to file any affidavit material containing additional evidence relied upon, including a transcript of the Tribunal hearing. Nothing has been filed in respect of this order. The applicant was also required to file and serve written legal submissions and a list of authorities 14 days prior to the hearing. This order was also not complied with. When the applicant was invited to make oral submissions in support of his application, he indicated that he was unsure what to say to the Court and had no submissions to make in support of his application.
The Tribunal wrote to the applicant on 25 October 2004 advising him that it had considered all the material before it in relation to his application. The letter confirmed that the Tribunal was unable to make a decision in his favour on that information alone. The letter invited the applicant to appear before the Tribunal to give oral evidence and to present any further arguments in support of his claim. The letter indicated that he may bring any witnesses with him to give oral evidence and further, that the applicant may submit any new documents or written arguments to the Tribunal to consider. This letter was sent to both his mailing and home addresses. The letter sent to the home address was returned to the Tribunal indicating that the applicant had left that address. The applicant did not attend the scheduled hearing on 18 November 2004, nor did he contact the Tribunal with any explanation in respect of his failure to attend. Pursuant to s.426A of the Act, the Tribunal decided to proceed with its decision by reviewing the documents that it had in its possession, without taking any further action to enable the applicant to appear before it.
The material before the Tribunal was very limited. The applicant had supplied, as an attachment to his original application, a photocopy of his passport which effectively consisted of three pages. Attached to Part C of his application was a brief half page typed statement which stated (CB 21):
I am a very active person in political debates and activities for freedom and democracy in China. Probably because the influence from my family and the experiences of suffering of my family members and myself. I support the independence of Tibet. In 1989, I was in Beijing to support the student to ask for democratic system and sufficient political system in China. I participated in demonstrations at Tiananmen Square; I witnessed the whole event of the Tiananmen Square Massacre. I can not stand the political systems in China and the way the government treated the students and the people participating in the movement. During that period of time, we were controlled strictly by the government, we were supervised by the government officials, and we lost freedom totally. I had to hide myself very well so that I could avoid being persecuted further. However, because that is my nature who is interested in promoting freedom and democracy in China, in my spare time, I liked to join in political debates. At the same time, I needed to cover myself very well every day when I was in China. I became a Falun Gong member in 1998. I practiced Falun Gong for my health at the beginning and soon became the support of my life; I can not live without “Falungong”. Unfortunately, it was banned by the Chinese authorities in 1999, and I had to practice it secretly and worried day and night that I would get caught and would be subject for persecution by the Chinese authorities. However, in September 2003, when I was practicing Falungong, police came to arrest people. I was helped to leave on time. With the help of my friend, I could get my passport to Australia for protection. I hope that Australian government can provide protection to me. (copied without alteration or correction)
The Tribunal was also provided with a copy of the delegate’s decision. Attached to the application for review by the Tribunal, the applicant included a brief statement in section D of his application which states (CB 41):
I could not stand the pressure from the Chinese authorities and I came to Australia for protection. In 1989, I was in Beijing to support the student on asking for democratic system and sufficient political systems in China. I realized at that moment that we would never enjoy the freedom in China. I as strictly supervised by the Chinese authorities. I became a Falungong member in 1998 because of personality of curiosity at the beginning. Soon, I realized that Falungong is not only good for my health but also good for my belief. Just before I came to Australia, I was nearly detained by the Chinese authorities, I was lucky to leave on time with the help of other members. (copied without alteration or correction)
This is the full extent of the material provided by the applicant in respect of his application and subsequent review.
In the respondents’ written submissions, it is submitted that both the original and amended application to the Court allege failure on the part of the Tribunal to ‘make a finding’, exercise jurisdiction, ‘observe the Act’, consider claims and provide a rational foundation for the decision. Although the application uses language alleging jurisdictional error, it fails to identify any particular error with reference to the Tribunal’s actual conduct or reason. No written or oral submissions were made by the applicant to support any of these contentions.
Grounds two and three of the original application dispute the Tribunal’s compliance with its statutory obligation to invite the applicant to attend a hearing. There is nothing which indicates that the Tribunal did not comply with its statutory obligation and the applicant did not identify or provide any particulars in respect of those claims. Part 7, Division 4 of the Act contains an exhaustive statement of the requirements of the natural justice hearing rule. Those provisions have been complied with. Similarly, the relevant provisions of Part 9 of the Act have also been complied with. In particular, s.494B(1) of the Act requires the Tribunal to forward to the applicant a hearing invitation at his nominated postal address. There is no evidence to suggest that the applicant’s postal address (as nominated in his application to the Tribunal) had changed, that he had not previously received mail at that address, nor that the Tribunal knew or ought to have known that the applicant’s address may had changed. Consequently, the hearing invitation is taken to have been received by the applicant in accordance with s.494C(4). All of the relevant provisions have been complied with and the Tribunal was not obliged to hold a second hearing as a consequence of the applicant failing to appear the scheduled hearing on 18 November 2004. Grounds two and three of the original application cannot be sustained.
In the respondents’ written submissions, Ms Rose submits that in respect to particulars two, five and six of the amended application, the applicant cannot succeed, as independent country information was not used by the Tribunal in reaching its decision. It is submitted that even if the Tribunal had used independent country information in reaching its decision, it was not obliged to put that information to the applicant by reason of s.424A(3)(a) of the Act.
In respect of particulars three and four of the amended application, the applicant does not raise any issue that identifies a jurisdictional error or enhances the applicant’s argument.
Particular one of the amended application asserts that the Tribunal failed to assess the applicant’s chance of persecution should he return to the PRC. This is clearly incorrect as the Tribunal in its findings and reasons, found that owing to the lack of detail provided by the applicant, it was unable to be satisfied of his participation in the claimed political activities in the past. Neither was it satisfied that he would engage in these activities in the future should he return to the PRC. The Tribunal was simply not satisfied that the applicant met the criteria for granting of a protection visa: Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [17] per Black CJ, Sundberg and Bennett JJ:
17.As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant’s claims were at "such a general and vague level that the Tribunal cannot establish the relevant facts", and therefore had made no findings either accepting or rejecting the claims. The Tribunal’s approach was upheld by a Full Court at [15]:
"It can be seen from the form of [s 65(1)] that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied."
See also NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033 at [33] and Applicant A159 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCA 473.
The Tribunal simply concluded that there was insufficient evidence before it to allow factual findings to be made in respect of the applicant’s claim. The Tribunal has not erred in law nor on the facts, in reaching this conclusion: WAGP of 2002 v Minister for Immigration (2002) 124 FCR 276 at [26] to [29]; SZEEU v Minister for Immigration [2006] FCAFC 2 per Allsop J at [207].
The Tribunal did not rely on any information in affirming the decision under review that may engage s.424A of the Act. In SZEEU v Minister for Immigration, it was established that the Tribunal is bound to provide an applicant with particulars in writing of any information that might be the reason or part of the reasons for the decision. In the present case, the applicant may argue that most of the information that was before the Tribunal was that provided in his protection visa application. His Tribunal application only contained limited information in the brief statement in Section D. It made no reference to the original visa application that would have the effect of drawing that material into the Tribunal decision. However, the circumstances of this application fall outside that requirement for the following reasons.
In SZEZI v Minister for Immigration [2005] FCA 1195 (“SZEZI”), Allsop J found that the applicant did not attend the hearing before the Tribunal. Accordingly at [8], His Honour recorded the relevant reasons for the Tribunal decision and proceeded with the following conclusion at [29]:
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 s 424A (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 s 424A. 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.

Similarly, in SZCIA v Minister for Immigration [2006] FCA 238, the applicant did not attend the hearing and Allsop J emphasised the need to make an evaluation of the Tribunal’s reasons. In the present proceedings, under ‘Findings and Reasons’ in its decision, the Tribunal did no more than the Tribunal did in SZEZI. It referred to background information about the applicant, taken from his protection visa application, but stated that there was insufficient detail in the protection visa application to allow it to make a finding of fact in relation to the applicant’s claims. As in SZEZI, this was not a reason or part of the reasons for its decision. The reasoning of Allsop J in SZEZI and SZCIA v Minister for Immigration applies to the present case. The Tribunal did not make a positive finding of fact about the position of the applicant, but rather rejected his claims because of an inability for it to be satisfied on the lack of information before it.

Conclusion

The applicant in these proceedings is a self-represented litigant and appears with the assistance of a Mandarin interpreter. Ms Rose, appearing for the respondents, assisted the Court with submissions addressing all of the issues raised in the applicant’s application.
As the applicant is self-represented, this places an obligation on this 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. I am satisfied that none of the grounds identified in either the applicant’s original application or his amended application can be sustained. To satisfy this obligation, I have read all of the material in the Court Book and reconsidered the Tribunal decision. It is not apparent that there are any other grounds of review that exist to suggest that the Tribunal made a jurisdictional error in its decision-making process. I am satisfied that the applicant has been given an opportunity to avail himself of independent legal advice under the Court’s sponsored scheme and that he has received written advice, although he failed to attend the conference with the panel lawyer. The applicant was granted leave to file an amended application and he has taken advantage of this opportunity. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 29 June 2006