SZGER v Minister for Immigration - [2006] FMCA 562

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGER v MINISTER FOR IMMIGRATION

[2006] FMCA 562

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), s.426A

SAAP v Minister forImmigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195

Applicant:

SZGER

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1116 of 2005

Judgment of:

Barnes FM

Hearing date:

11 April 2006

Delivered at:

Sydney

Delivered on:

11 April 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Phillips Fox

ORDERS

That the application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $2,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1116 of 2005

SZGER

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 30 March 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant is a citizen of the Peoples Republic of China who arrived in Australia in November 2004. In December 2004 he lodged an application for a protection visa. The application was refused and on 13 January 2005 he lodged an application with the Tribunal for review of the decision. In that application the only contact details he provided consisted of a residential address in Australia. He did not indicate in that application that he had an adviser or that he wanted correspondence sent anywhere other than to his residential address. Annexed to his review application he provided a short summary of his claims in relation to his situation in China. He claimed to fear persecution on the basis of his involvement in and activities with Falun Gong, that he had had to practise it secretly and that at the end of 2003 the police had started to investigate him.
The Tribunal wrote to the applicant on 11 February 2005. The letter was addressed to the applicant at the residential address provided in his review application. It advised the applicant that the Tribunal had considered the material before it in relation to his application, but that it was unable to make a decision in his favour on that information alone. It invited the applicant to attend a hearing on a date and at a time and place specified and advised that if the applicant 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 record that no response was received to this letter and that the invitation was not returned unclaimed to the Tribunal, that the invitation had been sent to the applicant's residential address and that the applicant had provided no other address or contact details.
As the applicant did not appear before the Tribunal on the day, time and place scheduled, the Tribunal stated that it had proceeded, pursuant to s.426A of the Migration Act 1958 (Cth) (the Act), to make a decision on the review without taking any further action to enable the applicant to appear before it.
As I have indicated briefly, the applicant claimed to fear persecution in the Peoples Republic of China because he is a Falun Gong practitioner. His claims were initially made in his protection visa application and briefly reiterated in his application to the Tribunal. In its findings and reasons the Tribunal first stated that on the basis of independent evidence it accepted that Falun Gong practitioners had been persecuted in China for practising Falun Gong, but observed that the question was whether the applicant was a Falun Gong practitioner as claimed.
The Tribunal found that the applicant's claims were general and lacking in detail. For example the applicant had claimed that he was a member of Falun Gong but had not specified when he became a member or why. While he claimed he had been forced to practise in private after his detention in 1997, he had provided no particulars about how he practised Falun Gong before that time. The Tribunal also referred to the lack of details about the applicant’s claimed trip to Beijing in 1997, about the petition he claimed to have presented, to whom it was presented and what happened thereafter, including particulars of the claimed torment to which he was subjected. The Tribunal also noted the absence of detail about the nature of police investigation the applicant claimed occurred at the end of 2003 or the outcome of such investigation. The Tribunal found that in addition to lacking detail, the applicant's claims were mere assertions.
It concluded:
Given the lack of detail in the claims and without the opportunity to test the applicant's assertions at a hearing, the Tribunal is not prepared to simply accept his claims. Thus, the Tribunal is not satisfied that the applicant is or ever was a Falun Gong practitioner or that he was detained or mistreated for reasons of Falun Gong membership or activities.
Consequently the Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution in China within the meaning of the Refugees Convention.
The applicant sought review by application filed in this court on 2 May 2005. He now relies on an amended application filed on 28 March 2006. The ground in the amended application (which also contains material in the nature of a submission) is that the Tribunal failed to carry out its statutory duty. The particulars of this claim are that the only information before the Tribunal was that contained in the first respondent's file and that given to the Tribunal by the applicant and that the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) in relation to information that was the reason or part of the reason, for affirming the decision. Reference was made to extracts from the decision of the High Court in SAAP v Minister forImmigration & Multicultural & Indigenous Affairs [2005] HCA 24 in relation to the mandatory nature of the obligation in section 424A of the Act. It was contended that s.424A applied to the information given by the applicant to the first respondent as part of his application for a visa, consistent with the approach in Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27 as such information was not information given to the Tribunal for the purposes of s.424A. It is apparent that this is intended to be a reference to the exception in s.424A(3)(b). It was contended that the Tribunal based its findings on the information or lack of information contained in the application for a protection visa, that it failed to comply with s.424A and so fell into jurisdictional error. In oral submissions the applicant told the court that, in his view, the Tribunal should have given him a written notice, which I take to be a reiteration of the ground relied upon in the amended application.
Section 424A(1) of the Migration Act 1958 requires the Tribunal to give to the applicant in a way it considers appropriate in the circumstances, particulars of any information the Tribunal considers would be the reason or a part of the reason for affirming the decision under review to ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review and to invite the applicant to comment on it.
The effect of sub-s.(2) of s.424A is that the invitation is to be given in writing. The obligation in s.424A(1) is subject to exceptions in subsection (3). It is not disputed that no notice under s.424A of the Act was given to the applicant in this case.
The essence of the applicant's claim is that the Tribunal ought to have notified him in writing of the information or lack of information in his protection visa application.
In SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2, the Full Court of the Federal Court accepted that information provided to the Department prior to the making of a review application was not information provided by the applicant for the purposes of the application and, hence, did not fall within the exception in section 424A(3)(b). (See Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27).
However it was contended for the respondent that there were two factual matters which distinguished this case from the circumstances considered and principles enunciated in SZEEU. The first was said to be that in the short statement provided to the Tribunal with his review application, the applicant had purported to reaffirm his claim to suffer persecution because of his Falun Gong membership, resulting in four days detention. No authority was cited by the respondent in support of the proposition that the information in those circumstances was given to the Tribunal.
The brief statement attached to the review application makes no reference to the claims which were provided with somewhat more detail (albeit still limited detail) in the protection visa application. It does not refer to that application or, indeed, to the departmental file or to the departmental decision. It is not, however, necessary in the circumstances of this case for me to reach a conclusion in relation to this issue (which would involve consideration of a number of cases which have considered such situations), because I am satisfied, consistent with and for the reasons given by Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, that the obligation in s.424A(1) is not in any event enlivened in this case. In SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs, Allsop J found that there was no failure to comply with s.424A stating at [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 section 424A(1) by section 424A(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 section 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 this case the reason for the Tribunal decision was not the information in the protection visa application as claimed by the applicant, but rather the Tribunal's evaluation and conclusion (based on the limited detail, the generality in the claims and the fact that the claims were mere assertions) that it could not reach the required mental state of satisfaction that the applicant had a well-founded fear of persecution.
As in SZEZI, this was an absence of detail and explanation which had been invited by the letter of 11 February 2005. Nothing in SZEEU affects this reasoning in relation to the particular circumstances of the case before me. No failure to comply with s.424A of the Act has been established. That is the only basis relied upon in the amended application. As no jurisdictional error has been established, the application should be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 28 April 2006