SZGQW v Minister for Immigration

[2006] FMCA 366

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGQW v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 366

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in PRC due to being a Falun Gong practitioner – applicant failed to appear at Tribunal hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 91S; 425; 425A; 426A; 474; 483

S58 of 2003 v Minister for Immigration &  Multicultural &  Indigenous Affairs [2004] FCAFC 283
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171

Applicant: SZGQW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1747 of 2005

Judgment of: Emmett FM

Hearing date: 15 March 2006

Date of Last Submission: 15 March 2006

Delivered at: Sydney

Delivered on: 15 March 2006

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the Respondent: Ms C. Gray, Sparke Helmore Lawyers

ORDERS

1. The application before this Court is dismissed.

2. That the applicant pay the First Respondent’s costs in an amount of $3,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1747 of 2005

SZGQW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 31 May 2005, to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicants.

2. The applicant is a 42 year old female who claims to be a citizen of the People’s Republic of China (“the PRC”) and of Chinese ethnicity and Falun Gong faith (“the Applicant”).

3. The Applicant arrived in Australia on 27 November 2004, having legally departed from Shanghai on a passport in her own name.

4. On 7 January 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

5. The Applicant claimed that she feared persecution by the government of the PRC by reason of her being a Falun Gong practitioner.

6. On 13 January 2005, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

7. On 15 February 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 9 May 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. On 5 July 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

9. Pursuant to Orders made on 28 July 2005 the Applicant filed an amended application on 12 September 2005 (“Amended Application”).

Legislative framework

1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 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.

3. Australia owes protection obligations to a refugee on Australian territory.

4. 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.”

5. 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.

Tribunal proceeding

1. The Tribunal had before it the Department’s file, including, the protection visa application and the Delegate’s decision record.

2. The Tribunal wrote to the Applicant on 9 March 2005, advising the Applicant that it had considered all the material before it relating to her application but were unable to make a favourable decision on that information alone. The Tribunal invited the Applicant to attend the Tribunal hearing on 9 May 2005, in order to give oral evidence and present arguments in support of her claim.

3. The Applicant failed to respond to this invitation and failed to attend the Tribunal hearing.

4. In support of her application for review by the Tribunal the Applicant provided a statement, relevantly, in the following terms:

   “Since I knew FaLun Gong seven years ago I have never stopped practicing it. I believe I can keep my health and spirit through practicing and there is nothing wrong with FaLun Gong. I was running a variety store in Shanghai China. They asked me to pay more tax than others. The Chinese government even threatened to close my business because I am a FaLun Gong practitioner. In order to help the government to understand us, I volunteered to write petitions and photocopy 10 thousand copies. For several weeks, I and my FaLun Gong colleagues practiced FaLun Gong at my home. We did not know how the Public Security Bureau got the wind of it. One night they drove the police car to my home and arrested us. Fortunately I escaped for I knew the environment around my house very well. There is no way out for me in China.”

5. The Tribunal found the Applicant’s statement to be “extremely vague”. It noted that the Applicant did not specify when police allegedly tried to arrest her, when she was threatened with the closure of her business and when she was required to pay higher than normal taxes. The Tribunal noted that Applicant provided little information to indicate she has any knowledge of the history, practice or philosophy of Falun Gong. The Tribunal noted that such information as was provided by the Applicant was “easily obtained from publicly available sources.”

6. The Tribunal was not prepared to accept that the Applicant was ever a Falun Gong practitioner on the basis of her assertion, particularly given the lack of detail in her claims. Because the Tribunal was not satisfied that the Applicant is now or ever was a practitioner of Falun Gong, it was not satisfied that police tried to arrest her for being a practitioner, or that they would seek to do so if she were to return to the PRC.

7. In the circumstances, the Tribunal found that the Applicant’s claim of persecution in the PRC is not well founded and that the Applicant was therefore not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The hearing before this Court

1. The Applicant was unrepresented before this Court this morning although had the assistance of an interpreter.

2. I note that a facsimile was received by the Registry yesterday,

   
   

   14 March 2006, at 1.08pm from a Mr George Gunnee. Mr Gunnee stated he was writing on behalf of the applicant because she does not speak English. The letter sought an adjournment of today’s hearing to enable the Applicant to meet with a panel adviser, Mr Ray Turner, to seek advice. I note that on 28 July 2005, the Applicant appeared before the Registrar at a Directions hearing, with the assistance of an interpreter at which the Applicant indicated that she wished to have the opportunity of meeting with a panel adviser. On 25 October 2005, a letter was received by this Court from Ray Turner, Solicitor, being the appointed panel adviser. The letter simply stated “I advise that advice has been given in the abovementioned matter.”

3. There was no evidence provided by the Applicant of attempts made by her to communicate with Mr Turner since that time. However, I note that Mr Gunnee, in his facsimile stated that “telephone contact with Mr Turner has been so far unsuccessful.”

4. I explained to the Applicant at the outset of the proceeding that there had been ample time for the obtaining of any relevant advice and that in the circumstances her request for an adjournment of the hearing to enable her to meet with Mr Turner to seek his advice was refused.

5. The Applicant then stated that, although she had signed the Amended Application filed on 12 September 2005, she was not the author of the document. She then informed the Court of a sad tale of her involvement with a migration agent, Mr David Deng. I explained to the Applicant that this Court’s role is confined to a review of the Tribunal’s decision and the Tribunal’s conduct in reaching its decision insofar as it must comply with certain statutory obligations. I suggested that the Applicant may be able to pursue her complaint in respect of the migration agent with the assistance of the First Respondent.

6. The Amended Application appears to have peripheral relevance only to the Applicant’s situation. The grounds identified are as follows:

   “1)RRT disregarded the fact that even though the applicant left China via Beijing airport legally but the group leader has taken his passport away from him this is the way (which is not normal) that the Chinese authorities controls its people and should the applicant return to his county of origin, he would face a real chance of persecution and serious harm.

   2) RRT was subjectively seeking reasons to decide against the applicant rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant’ claim of a well founded fear of persecution and there is a real chance that he will be persecuted.

   3) RRT using so called country information to against the applicant rather than looking at the whole fact of the application fairly to make its judgment. RRT also did not fully disclose the full detail of the country information that they used to assess applicant’ application.”

7. Ground 1 is not a claim mentioned by the Applicant on any previous occasion and is not referred to in either of her statements. If it occurred it may be have been a matter that the Applicant could have taken up with the Tribunal. The Applicant was invited in two letters, following her lodgement of her review application, to send the Tribunal “any documents, information or other evidence, to which the Applicant would wish the Tribunal to have regard.”

8. The first letter, dated 15 February 2005, and marked Exhibit 1A, also noted receipt of the Applicant’s application, informed the Applicant to contact the Tribunal immediately in respect of any change of address and also provided her with contact details for a translating and interpreting service.

9. The second letter dated 9 March 2005, invited the Applicant to attend a hearing before the Tribunal on 9 May 2005. Relevantly, that letter informed the Applicant that the Tribunal had considered the material before, it but was unable to make a decision in the Applicant’s favour on that information alone. It also notified the Applicant that, if she did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on her case without further notice.

10. Both letters were sent to the Applicant, at the mailing address identified by her in her review application, lodged on 15 February 2005. No authorised recipient or telephone number was provided by the Applicant.

11. The Tribunal’s letter dated 9 March 2005, complied with the statutory requirements identified in ss.425 and 425A of the Act.

12. Pursuant to s.426A of the Act where the Tribunal has complied with s.425 and the Applicant does not appear before the Tribunal on the nominated day, then the Tribunal may make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.

13. In its decision, the Tribunal noted that the Applicant had been invited to attend a hearing. The Tribunal noted that it “checked that the letter was sent by registered mail to the address nominated by the applicant for the services of such notices.” The Tribunal also noted that Applicant did not nominate any authorised recipient and that no response had been received by her to the invitation as at 9 May 2005. The Tribunal then noted that, in the circumstances, pursuant to s.426A of the Act it would proceed to make its decision on the review without taking any further action to enable the Applicant to appear before it.

14. In failing to appear at the hearing, the Applicant is taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of the Applicant’s material, would be noted by the Tribunal, without an opportunity for the Applicant to explain or clarify them. In those circumstances, the Applicant cannot complain if her application was rejected because, amongst other reasons, she failed to take up the opportunity to appear. (See S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 (“S58”) at [25-26]). This is particularly so, where the Applicant received an invitation to attend a hearing before the Tribunal that clearly stated that the information presently before it was not sufficient to make orders in favour of the Applicant (WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 (“WACO”)). The Full Court of the Federal Court in WACO at [46] stated that:

    “There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward”.

15. In the circumstances of this case, the Tribunal provided the reasons upon which it purported to exercise it discretion under s.426A of the Act and, in the circumstances, was entitled to proceed with the review. There is no error, let alone jurisdictional error by the Tribunal in proceeding as it did.

16. Ultimately, the Tribunal was not satisfied that the criteria required for a protection visa was met by the Applicant. Section 65(1)(b) of the Act clearly states that, after considering a valid application for a visa, if the Minister is not satisfied that the criteria are met, the Minister is to refuse to grant the visa. The Tribunal identified the concerns it had with the claims made by the Applicant and found her claims to be “extremely vague”. The Tribunal identified with particularity concerns arising out of the vagueness of her claims. The findings and conclusions of the Tribunal were open to it on the material before it. Having concluded that it was not satisfied, that the relevant criteria had been met, it affirmed the decision not to grant a protection visa.

17. Ground 2 of the Amended Application contains no particulars and does not disclose a reviewable error.

18. Ground 3 of the Amended Application is misconceived in that the Tribunal did not have regard to any “country information” in reaching its conclusions.

Conclusion

1. There being no jurisdictional error, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

2. Accordingly, the application before this Court is dismissed with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Kwong

Date:  15 March 2006