SZFUA v Minister for Immigration

[2006] FMCA 790

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFUA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 790

MIGRATION – 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.424A, 425, 425A, 426A

Yo Han Chung v University of Sydney & Ors [2002] FCA 186
SAAP v Minister for Immigration [2005] HCA 24
SJSB v Minister for Immigration [2004] FCAFC 215
SZCIA v Minister for Immigration [2006] FCA 238
SZEEU v Minister for Immigration [2006] FCAFC 2
SZEZI v Minister for Immigration [2005] FCA 1195

Applicant: SZFUA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG509 of 2005

Judgment of: Lloyd-Jones FM

Hearing date: 31 May 2006

Delivered at: Sydney

Delivered on: 22 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 McNamara

Solicitors for the Respondents: Phillips Fox

ORDERS

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

2. The application is dismissed.

3. 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

SYG509 of 2005

SZFUA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. 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 28 February 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 7 January 2005 and handed down on 25 January 2005, affirming a decision of the delegate of the first respondent made on 23 June 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.

2. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZFUA”.

3. 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

1. The Tribunal decision of Ms Phillipa McIntosh, reference N04/49634 contains the following background information. The applicant claims to be a citizen of the People’s Republic of China (“PRC”) and arrived in Australia on 2 June 2004. On 17 June 2004, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 23 June 2004, a delegate of the Minister refused to grant a protection visa and on 30 July 2004, the applicant applied to the Tribunal for a review of the delegate’s decision.(Court Book (“CB”) 57)

2. At the time of the visa application, the applicant claimed to be 41 years old and from Hedong District in Tianjin City of the PRC.  He claimed has been employed as a worker in a factory there from 1984 to 2003.  In a statement, the applicant claimed to fear persecution on the basis that he was a Falun Gong practitioner and that other practitioners had been gaoled, tortured or killed.  He also claimed to have been detained in the PRC for over six months from December 2002 but provided no documentary evidence in support.  The applicant claimed to have bribed police to enable him to have a passport issued, although elsewhere in his protection visa application, he stated that he obtained his passport without difficulty.  He submitted a copy of his passport which showed that it had been issued in the PRC on 25 November 2003 and that he had visited Singapore, Malaysia and Thailand before returning to the PRC.  The applicant left the PRC again on 1 June 2004 and came to Australia, returning again to the PRC on 8 June 2004. 

   
   

   He stated that he again left the PRC legally on 11 June 2004 and re-entered Australia.(CB 60)

The Tribunal’s Findings and Reasons

1. A convenient summary of the Tribunal’s Findings and Reasons was contained in the first respondent’s written submissions:

   7.The RRT invited the applicant to attend a hearing. The applicant did not reply and did not attend on the scheduled hearing date. The RRT decided, pursuant to section 426A of the Migration Act 1958, to make its decision without giving the applicant any further opportunity to attend a hearing.

   8.The RRT found that the applicant’s claims could only be seen as mere assertions without any corroborating evidence.  The RRT noted that the information provided by the applicant was vague and lacking in crucial details.  It gave examples of crucial details that were missing including why, if the applicant feared serious harm, he chose to re-enter China twice after travelling abroad and also why he did not apply for a protection visa during his first visit to Australia in June 2004.

   9.The RRT concluded that it was “…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.

Application for Review of the Tribunal’s Decision

1. On 28 February 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following grounds:

   1.I am a membership of a particular social group-Falun Gong.  I am a common Falun Dafa practitioner.

   2.I have been prosecuted and jailed by Chinese government.  Falun Gong was outlawed in China on July 22, 1999.

   3.My fear of persecution is a “well-founded” dear.  I was arrested on in December 2002.  I was beaten and kicked by police on the scene upon my arrest.  Later, I was sent to Tianjin Detention Centre for four months.  The policemen used varies measures to torture me.  They also increased my jail terms – I was not released even two months after I had completed the sentence. (copied without alteration or correction)

Reasons

1. 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 indicated a desire to participate in the Court’s Legal Advice Scheme and was subsequently allocated a panel lawyer.  The applicant attended a conference with that lawyer and was provided with written advice a short time later.  At first directions, the applicant was granted leave to file an amended application and complete particulars of his grounds for review.  This opportunity was not pursued.  The applicant was also ordered to file submissions in support of his application, together with a list of authorities, 14 days prior to final hearing.  This order was not complied with.

2. When the applicant was invited to make oral submissions in support of his application, he made a brief statement that he was a Falun Gong practitioner and that he had been persecuted by the authorities in the PRC.  He also stated that his passport contained the details which indicated that he had visited various countries prior to coming to Australia.  He returned to the PRC and at a later date re-entered Australia.  The Tribunal, in its decision, raised the question of why the applicant did not make a protection visa application during his first visit to Australia.  As the applicant did not attend the Tribunal hearing, the Tribunal was unable to raise this issue with him.  The applicant did not offer any explanation for his actions and did not take this matter any further.  It is unclear whether the applicant contests this finding.  This could not be resolved by the Court as the applicant declined to say anything further in respect of this matter.

3. Ms McNamara, appearing for the respondents, submits that the Tribunal fulfilled its obligation under s.425 of the Migration Act 1958 (Cth) (“the Act”), by inviting the applicant to attending its hearing. Sufficient notice was given of the hearing as pursuant to s.425A. The applicant did not respond to the hearing invitation. When he did not turn up to the scheduled hearing, the Tribunal proceeded to make its decision, as it was entitled to do pursuant to s.426A.

4. The Tribunal wrote to the applicant on 6 December 2004, indicating that it had considered all the material in relation to his application, but was unable to make a decision in his favour on that information alone.  The Tribunal extended an invitation to the applicant to attend a Tribunal hearing on 6 January 2005 and advised the applicant of the consequences if he failed to attend the hearing or did not seek postponement should he be unable to attend on that date.  He was also invited to bring any witnesses to give oral evidence in support of his application, and was further invited to serve any further documents or written arguments by 22 December 2004.  This invitation was forwarded to the applicant’s mailing address as specified in his application for review.  That correspondence was not returned to the Tribunal by the postal service.  His application for review did not nominate an agent, nor did it contain telephone contact details for the applicant.  The Tribunal’s checklist, prepared when there is no reply to a hearing invitation, indicates the invitation was sent to the address for service recorded in the case management system.  The Tribunal also checked to see whether there was a more recent address and phone record than that of the Department of Immigration.  A check of the airport movement database was performed and there was no record that the applicant had left the country.

5. Ms McNamara, in her written submissions, submits that the Tribunal decision was based on a finding that there was insufficient evidence to be satisfied of the applicant’s claim.  In support of this submission the Court was referred to the authority in SJSB v Minister for Immigration [2004] FCAFC 215 at [15] to [16] per Ryan, Jacobsen and Lander JJ, where the Court concluded that a legislative regime which requires a positive state of satisfaction as to whether the protection obligations are owed mandated a refusal decision if that state of satisfaction is not reached. The Tribunal here could not reach a positive state of satisfaction in relation to the applicant’s claims. In those circumstances, its decision was inevitable.

6. 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.  In it the applicant briefly stated his background in the period of detention after his arrest for being a Falun Gong practitioner.  It also contained a brief explanation in respect of his departure from the PRC.(CB 12)  The application to the Tribunal contained a half-page statement, which consisted of three typed paragraphs, which in effect repeats substantially the material contained in the statement attached to the original visa application.  None of these statements are signed or dated.  However, they are referred to in the respective application forms.

7. Ms McNamara’s written submissions then address SZEEU v Minister for Immigration [2006] FCAFC 2 which makes clear 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 reason for its decision. It is submitted that in the present case, the applicant may argue that the only information that was before the Tribunal was that provided in his protection visa application, except the brief typed statement to the visa application which briefly repeats the claims attached to the visa application. In the circumstances, the information was not provided for the purposes of the application to the Tribunal and the exceptions contained in s.424A(3)(b) do not apply an obligation to write to the applicant pursuant to s.424A(1) would arise. The respondent contends that the circumstances of this application falls outside of that requirement and submits the following argument in support of that proposition.

8. Ms McNamara submits that 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 hearing before the Tribunal and accordingly at [8] His Honour records the relevant reasons from the Tribunal decision:

   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.

   His Honour proceeded to conclude:

   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.

9. In SZCIA v Minister for Immigration [2006] FCA 238, another matter where the applicant did not attend the Tribunal hearing, the Court emphasised the need to make an evaluation of the Tribunal’s reasons. His Honour Allsop J stated at [9]-[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.

10. Ms McNamara submits that the Tribunal in the present proceedings, under the heading ‘Findings and Reasons’, did more than the Tribunal in SZEZI.  It referred to background information of the applicant, taken from his protection visa application, and identified the critical matters it would have liked to have explored with the applicant at the hearing.  As in SZEZI, these matters predictably related to a period when the applicant voluntarily returned to a place in which he claimed to fear persecution.

11. As in SZEZI, Ms McNamara contends that this was not a reason or part of a reason for its decision.  It was referred to by the Tribunal merely as another piece of information that it considered crucial and that it intended to discuss with the applicant, had he chosen to attend the hearing.

12. Ms McNamara submits that the reasoning of His Honour Allsop J in SZEZI and  SZCIA v Minister for Immigration applies in the present case.  She submits that the Tribunal did not make positive findings of fact about the position of the appellant 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 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

1. The applicant in these proceedings is a self-represented litigant, appearing with the assistance of a Mandarin interpreter.  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. Ms McNamara, appearing for the respondents, assisted the Court with submissions, which were supplemented by comprehensive oral submissions in respect of the applicant and recent developments that have a direct impact on these proceedings.

2. 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 is attempting to bring these proceedings.  I am satisfied that the applicant has been given the opportunities available to him 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 achieve his review.  However, I do not believe that setting down this matter for further hearing some time in the future is going to change the approach or the content of the applicant’s application.  I am satisfied that none of the grounds identified in his original application can be sustained.  Neither is it apparent that any other grounds for review exist that suggest that the Tribunal made a jurisdictional error in its decision-making process.  The applicant’s claim should be dismissed.

3. 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-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  16 June 2006