SZGCD v Minister for Immigration

[2005] FMCA 1007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGCD v MINISTER FOR IMMIGRATION [2005] FMCA 1007

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in the PRC as a member of Falun Gong.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 65(1); 91R; 91S; 424A; 424C; 425; 441A

B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30

Applicant: SZGCD

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 939 of 2005

Judgment of: Emmett FM

Hearing date: 19 July 2005

Date of Last Submission: 19 July 2005

Delivered at: Sydney

Delivered on: 5 August 2005

REPRESENTATION

The Applicant on behalf of himself

Counsel for the Respondent: Mr G. Kennett

Solicitors for the Respondent: Ms B Mendelsohn, Blake Dawson Waldron

ORDERS

1. The Application filed 14 April 2005 is dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG939 of 2005

SZGCD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The Application

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 September 2003 affirming the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) not to grant a protection visa to the Applicant.

2. The Applicant is a Chinese national who arrived in Australia on

   
   

   22 October 2002.

3. On 14 November 2002 the Applicant lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”) for a protection visa (class XA) on the basis that he was a member of Falun Gong, by reason of which he was persecuted in the Peoples Republic of China (“the PRC”).

4. On 25 November 2002 his application for a protection visa was refused by a delegate of the Minister on the basis that the Applicant did not have a well founded fear of persecution within the meaning of the Convention and was therefore not a person to whom Australia owed protection obligations..

5. On 12 December 2002 the Applicant applied for review by the Tribunal of the decision of the delegate of the Minister.

6. On 9 September 2003 the Tribunal dismissed the application on the basis it did not accept as credible the claims made by the Applicant and therefore was not satisfied that the Applicant had a well founded fear of persecution within the meaning of the Convention. Central to the Tribunal’s decision was the identical nature of the claims made by the Applicant with claims by others. This concern caused the Tribunal to invite the Applicant to comment pursuant to s.424A of the Act. The Applicant did not respond and the invitation to comment together with an invitation to appear at a hearing were sent back to the Tribunal marked “Return to Sender”.

7. On 14 April 2005 the Applicant filed an application for judicial review before this Court (“the Application”) claiming relief in the following terms:

   “1. An order that a writ of prohibition be directed to the first Respondent prohibiting the first respondent from acting upon or giving effect to or proceeding further upon the decision.

   2. An order that a writ of Mandarins be directed to the second     respondent compelling it to redetermine the application of protection.

   3. A declaration that the decision of the second respondent was mad e in excess of jurisdiction and is void and null.

   4. An order that the respondent pay the cost of the court.

   The grounds of the application are:

   1.  If I go back to my country I will be risk of suffering persecution within the meaning of the 1951 convention relation to the status of Refugees sand the 1967 protect relating to status of Refugees.

   2.  Member of Refugee Review Tribunal failed to understand my claims and failed to consider relevant matters. Further particulars to be provided.

   3.  The respondent refused to grant my protection visa application without any proper grounds and proper investigation.”

Legislative framework

1. Section 65(1) of the Act provides that the decision maker must not grant a visa unless satisfied that the prescribed criteria have been met.

2. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

Procedural history

1. Attached to his application for review by the Tribunal was a 2.5 page statement by the Applicant relating to:

   “the reason I am seeking a review for applying protection visa as a member of “Falungong” organisation”

2. On 13 December 2002 the Tribunal acknowledged receipt of the application but enclosed another form of application for immediate completion by the Applicant. The letter further notified the Applicant in the following terms:

   “tell us immediately if you change your home address, mailing address, your telephone number or if there is any change in the name or address of Authorised Recipient. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice. The Tribunal will acknowledge any change of contact information you provide. (You should also inform the Department of any change in these details)”

   The letter concluded by saying:

   “if you have any questions, you can contact us on [phone]. If you are calling from outside Sydney phone [phone]. If you don’t speak English, please contact the Translating and Interpreting Service (TIS) on 131450”

3. The Applicant duly completed the form of application sent to him.  It is dated 19 December 2002 although it was date stamped “received on
   12 Dec 2002”. The new application did not nominate an authorised recipient and nominated the Applicant’s home address and mailing address.

4. On 24 December 2002, the Tribunal wrote to the Applicant at his identified address informing him of the review process and notifying him to tell the Tribunal immediately if he changes his home address, his mailing address, his telephone number or if there is any change in the name or address of any authorised recipient. Again the Applicant was notified of the contact details of a translating and interpreting service.

5. On 21 August 2003 the Tribunal wrote to the Applicant in terms of s.424A of the Act (“the s.424A notice”). Relevantly, s.424A requires the Tribunal to notify the Applicant in writing of particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming a decision under review. Such notice must be given to the Applicant in accordance, inter alia, with s.441A.

6. Compliance with s.441A(4)(c) requires, relevantly, that the s.424A notice be sent by pre paid post within 3 working days of the date of the letter to the last residential address provided to the Tribunal by the Applicant.

7. The s.424A notice was in the following terms:

   “The Tribunal has information that would, subject to any comments you make, be the reason or part of the reason, for deciding that you are not entitled to a protection visa.

   The information is as follows:

   The primary decision on your protection visa application included reference to the fact that your statement of claims was identical or virtually identical to two others lodged with the Department giving rise to serious concerns about the applicant’s submission. The same issue now arises in relation to the statement accompanying your Review application, which is virtually identical to two others lodged with the Tribunal.

   This information is relevant because this situation again gives rise to serious concerns as to the credibility of your claims.

   You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 15 September 2003.

   IF YOU DO NOT GIVE COMMENTS 15 SEPTEMBER 2003 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.”

8. The s.424A notice must provide a reasonable time for the Applicant to respond. I note that the time provided by the Tribunal is 25 days for response from the Applicant. I am satisfied this was a reasonable time.

9. The Respondent relies on the details on the envelope on which was written “Return to Sender” to satisfy the requirement that the letter be sent within 3 days of its date. The envelope was marked “Return to Sender” and dated 22 August 2003. The letter was dated 21 August 2003. Having regard to those details I am satisfied that the letter was sent to the Applicant within 3 days of the date of the letter and was sent to the last residential address provided to the Tribunal by the Applicant in connection with the review.

10. Where there has been an invitation to the Applicant to comment on information in accordance with s.424A, and the Applicant has failed to give comments before the passing of the nominated time, then, in accordance with s.424C(2), the Tribunal can proceed to make a decision without taking any further action to obtain the Applicant’s views on the information.

11. Pursuant to s.425 of the Act, the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in relation to the decision under review. However, where the applicant has been invited to comment on information pursuant to a s.424A notice and has failed to comment within the nominated time then s.425(2)(c) removes the obligation of the Tribunal to invite the applicant to a hearing.

12. In fact, on the same date as the letter of 21 August 2003, the Tribunal sent another letter to the Applicant dated 21 August 2003 inviting the Applicant to appear at a hearing on 9 October 2003. That invitation to appear was also sent back to the Tribunal marked “Return to Sender” with the same details as the other letter.

13. The Applicant claims that he was let down by his migration agent, who passed nothing on to him and did not otherwise provide him with any information. However, there was no other person authorised by the Applicant to receive correspondence and I am otherwise satisfied that all correspondence was sent to the address nominated by the Applicant. The correspondence referred to in this judgement makes it plain that the Applicant had been told in writing that it was his obligation and, indeed, he must notify the Minister of any change of contact details. No changes of contact details have ever been received by the Minister or the Tribunal.

14. The authorities are clear that reliance on the advice of a migration agent by an applicant cannot lead to a finding of a denial of procedural fairness by the Tribunal (B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30).

The Tribunal decision

1. The Applicant did not place before the Tribunal any additional information beyond that which had been supplied to the delegate of the Minister and the document provided by the Applicant in support of his application for review by the Tribunal. That information was no more than the Applicant’s statement of claims that had been the subject of the Tribunal’s letter in which it had expressed its concerns about the identical nature of the statement of claims with others.

2. The Tribunal had notified the Applicant in the s.424A Notice that its concerns about the credibility of the Applicant may be the reason or part of the reason for deciding that the Applicant is not entitled to a protection visa. As stated above, the Applicant failed to respond to the Tribunal’s invitation to comment on its concerns.

3. In its “Findings and Reasons”, the Tribunal stated the following:

   “Generally where broad claims are made, the tribunal hearing is an opportunity for the Tribunal to gather detail about the claim with the Applicant. He has not provided any further information in support of his claims, despite ample opportunity to do so. Nor has he given the Tribunal to opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered.

   I accept that the applicant is a national of China.

   In his primary application, the applicant claimed that he had been harassed by the Chinees authorities and forced to recant his practise of Falun Gong. He claimed that, even after his recantation, he was watched by the authorities. He claimed that most of his friends who are leader within the Falun Gong had been arrested recently.

   The fact that the applicant’s statements (in his primary application and again in his application to the Tribunal) in support of his claims are identical (except for the names) to that of two other applicants, combined with the absence of a reply to the s.424A notice drawing his attention to this situation and the absence of an opportunity to discuss his claims with him, means that I cannot be satisfied to the credibility of any of his claims.”

The Applicant’s claims before this Court

1. The Applicant was unrepresented before this Court. However, an interpreter was present throughout the hearing in respect of the language identified by the Applicant, namely Mandarin.

2. The Applicant did not seek to place any further material before this Court, either oral or documentary, in support of his Application filed in this Court on 14 April 2005, nor did he file any written submissions.

3. I understand the Applicant’s claims before this Court to be as follows:

   a)The Tribunal failed to understand his claims;

   b)The Tribunal failed to consider relevant matters;

   c)The Tribunal refused his application without proper grounds and proper investigation.

   d)If he returns to the PRC he will be persecuted within the meaning of the Convention;

4. No further particulars have been furnished by the Applicant, nor has he provided any other material in support of his Application.

Applicant’s claim (a) - The Tribunal failed to understand his claims

1. The Applicant claims that the Tribunal failed to understand his claims. I understand that claim to be based on the decision by the Tribunal not to accept as credible the claims asserted by the Applicant.

2. As is apparent from its reasoning, the Tribunal had a dearth of material from the Applicant to consider other than statement of claims annexed to his original visa application and the further statement submitted in support of his application to the Tribunal for review.  The Tribunal had notified its concerns to the Applicant about the identical nature of those documents with documents lodged by others.

3. It was open to the Tribunal not to accept the claims asserted by the Applicant, particularly where the only material in support of the claims were contained in the very documents identified by the Tribunal as its cause for concern given the identical nature with other documents not related to the Applicant’s case. The Tribunal had taken the step of notifying the Applicant, in accordance with s.424A, that its concerns in respect of those documents may be the reason or a reason for deciding that the Applicant is not entitled to a protection visa.

4. Having found that the statements of claims were not sufficient to satisfy the Tribunal that the Applicant had a well founded fear of persecution, it could do little more than offer the Applicant an opportunity to comment.

5. As well as the s.424A Notice inviting the Applicant to comment, the Tribunal invited the Applicant to appear at a hearing. That invitation being returned to sender, the Tribunal was entitled to proceed with its review once the time for responding to the s.424A Notice had passed.

6. The Tribunal decision makes it clear that the identical nature of the Applicant’s documents with others, together with his failure to respond to the s.424A Notice and the absence of an opportunity to discuss his claims are the reasons why the Tribunal was not prepared to accept the bare assertions made by the Applicant.

7. It was open to the Tribunal, having considered the material before it and having regard to the conduct of the Applicant, not to accept the claims made by the Applicant. In those circumstances, I do not accept that the failure by the Tribunal to accept the claims of the Applicant demonstrates a failure by the Tribunal to understand the Applicant’s claims.  

8. Accordingly, this ground is rejected.

Applicant’s claim (b) - The Tribunal failed to consider relevant matters

1. The Applicant claims that the Tribunal failed to consider relevant matters. There are no particulars of this claim. It is not otherwise apparent to me what this claim is to encompass. It is for the Applicant to particularise any ground of review sought. In any event, the Tribunal’s decision centres around the Tribunal not being satisfied of the claims asserted by the Applicant (see paragraph 38 above). In the circumstances, this ground is rejected.

Applicant’s claim (c) - The Tribunal refused his application without proper grounds and proper investigation.

1. The Applicant claims that the Tribunal refused his application without proper grounds and proper investigation.

2. The Applicant did not avail himself of the opportunity offered to him by the Tribunal, by way of the s.424A Notice, to provide further information and to comment on the concerns expressed by the Tribunal. The fact that the s.424A Notice was returned to the Tribunal marked “Return to Sender” would appear to be a matter solely within the control of the Applicant where such notice was sent to the residential and mailing address nominated by the Applicant.

3. It is not for the Tribunal to have to make the Applicant’s case for him. It is for the Tribunal to offer him a reasonable opportunity, in compliance with its statutory obligations, to satisfy the Tribunal of his claims. This the Tribunal did.

4. Further, the Tribunal made it clear in its reasons why it did not accept the claims of the Applicant (see paragraph 38 above).

5. Accordingly, this ground is rejected.

Applicant’s claim (d) - If he returns to the PRC he will be persecuted within the meaning of the Convention

1. The Tribunal determined that, on the material before it, it was not satisfied that the Applicant would be persecuted in the PRC within the meaning of the Convention. The Tribunal carefully identified the legislative issues raised by s.36 and ss.91R and 91S in considering what is persecution within the meaning of the Convention.

2. The Tribunal specifically referred to the factual findings that were necessary to satisfy the requirements of ss.91R and 91S of the Act. The Tribunal considered the Applicant’s claims in the light of those requirements and was not satisfied that the claims asserted by the Applicant had been made out. For the same reasons identified above, the Tribunal did not accept that the material placed before it by the Applicant was sufficient to establish the untested and unsupported claims of the Applicant contained in his statements of claims, particularly in light of the failure of the Applicant to comment on the concerns identified to him by the Tribunal in the s.424A Notice.

1. It is clear the Tribunal understood its statutory duty to consider the claims of the Applicant and to make relevant findings of fact. This it did. The findings of fact made by the Tribunal were open to it on the material before it. In light of its findings the Tribunal concluded that the Applicant did not have a well founded fear of persecution within the meaning of the Convention. In those circumstances the Tribunal dismissed the Applicant’s application for review. There is no demonstrable error in that process.

2. Accordingly, this ground is rejected.

Conclusion

1. The Tribunal, on the material before it, did not fail to understand the Applicant’s claims and did not fail to consider relevant matters. The Tribunal considered the claims made by the Applicant and determined, after proper consideration of the claims and the material placed before it, including the Applicant’s statements of claims, that it was not satisfied that the Applicant would be persecuted within the meaning of the Convention on his return to the PRC.

2. In the circumstances, I am satisfied that the Tribunal properly considered the factual claims before it made by the Applicant and the findings made by the Tribunal in respect of those facts were open to the Tribunal. Further, I am satisfied that there is not any other claim plainly arising from the material before the Tribunal that is capable of satisfying the Court that there was any error on the part of the Tribunal.

3. Accordingly, all the grounds raised by the Applicant in his Application, filed on 14 April 2005, are rejected.

4. The Tribunal’s decision is a privative clause decision an, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. Accordingly, the Application is dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date:  2 August 2005