SZGTG v Minister for Immigration
[2006] FMCA 1071
•18 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGTG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1071 |
| MIGRATION – Review of decision by Refugee Review Tribunal – Refugee Review Tribunal proceeded with review in absence of applicant pursuant to s.426A of the Migration Act 1958 (Cth) – alleged failure by Refugee Review Tribunal to consider applicant’s claims – allegation of bias on part of Refugee Review Tribunal – Refugee Review Tribunal not satisfied criteria for refugee status met by applicant on information before it – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2); 65(1); 425; 425A; 426A; 441A; 441C(4); 474 Federal Magistrates Court Rules 2001, sch.1 |
| S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZGTG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1850 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 18 July 2006 |
| Date of last submission: | 18 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 July 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr B. Cramer, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1850 of 2005
| SZGTG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant filed an application in this Court on 14 July 2005 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) in respect of which the applicant was notified on 23 June 2005. In accordance with directions given on 9 August 2005, the applicant filed an amended application on 4 October 2005 alleging the following grounds:
“1. The Tribunal failed to assess the chance of my persecution if I attempt to practice underground religious activities in China.
2. The Tribunal did not consider my application in full details, and just refused to consider my application any further because of my absence to the hearing invited.
3. The Tribunal did not believe that I had been a member of an underground religious group without sufficient grounds. The Tribunal refused to accept that I was a member of that underground religious group without a rational or logical grounds and evidence.
4. The Tribunal had bias against me when considering my application for a protection visa.
5. The Tribunal refused to refer to any independent information and going through all the necessary step in considering my application just because I had not attended the hearing invited, and I could not go to the hearing beyond my control.”
In considering those grounds it is relevant to refer back to the procedural history of the matter from the lodging by the applicant with the Tribunal her review application in respect of the delegate's decision to refuse her a protection visa. The applicant lodged that application for review on 16 March 2005 together with a statement that is contained at page 50 of the Court book as follows:
“I was a member of an underground church in Lianjiang. Chinese authorities detained me and I suffered physical and mental torment from the Chinese government. With large sum of money, I could get myself released and came to Australia for protection. If I return to China now, I would be subject to imprisonment as Chinese government has obtained more evidence against me and I would face persecution on my return to China.”
On 17 March 2005, the first respondent acknowledged receipt of the applicant's application and informed her that, after looking at her information, the Tribunal may either make a decision in her favour, or invite her to attend a hearing of the Tribunal. It also informed the applicant that the Tribunal may write to her for more information, or ask her to comment on information in the possession of the Tribunal.
On 7 April 2005, the Tribunal wrote to the applicant informing her that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. The letter went on to invite the applicant to attend a hearing of the Tribunal and to give oral evidence and present arguments in support of her claims. The letter identified the date, the time and the place of the hearing and informed her that the Tribunal would only change this hearing date for good reasons.
The letter stated that if the applicant thought she may be unable to attend the hearing she must contact the Tribunal immediately. The letter also informed her that if she did not attend the hearing and the Tribunal did not postpone the hearing that it could make a decision in respect of her case without further notice. The letter went on to request the applicant to complete the ‘Response to Hearing Invitation’ form, and to let the Tribunal know whether she was coming to the hearing or not coming to the hearing.
Nothing further was received by the Tribunal from the applicant, and on 23 May 2005, being the date identified in the Tribunal's letter of 7 April 2005 as the nominated date for hearing, the Tribunal proceeded with its review in the absence of the applicant.
In deciding to proceed, the Tribunal noted that, on 7 April 2005, it had written to the applicant advising her that it had considered all the material before it relating to her application but was unable to make a favourable decision on that information alone; that the Tribunal invited her to give oral evidence and present arguments at a hearing on 23 May 2005; that if she did not attend the hearing and a postponement was not granted the Tribunal may make a decision on her case without further notice; that no response was received and the letter was not returned unclaimed; that she had no migration agent or authorised recipients and had provided no telephone number at which she could be reached directly; that the Tribunal and Departmental records showed no more recent address than that to which the Tribunal had written; that the Department's records indicated that the applicant was still in Australia; that the applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. The Tribunal concluded:
“In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.” (Court book 65)
Section 426A of the Migration Act 1958 (Cth) (“the Act”) states that if an applicant is invited pursuant to s.425 to appear before the Tribunal and does not appear before the Tribunal on the day on which or at the time and place at which the applicant was scheduled to appear, that the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Section 425 requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments, and s.425A prescribes the manner in which the notice must be completed and sent.
The notice of invitation must be sent in accordance with s.441A of the Act. In the case before this Court, that involved dispatching by post to the applicant at the applicant's address identified for service, the invitation. Where the Tribunal has complied with those statutory obligations, s.441C(4) of the Act deems that the letter was received.
The Tribunal in the exercise of its discretion to proceed with its review made clear the matters that had weighed on its mind in the exercise of its discretion. The Tribunal correctly identified that, pursuant to s.426A of the Act, it was open to the Tribunal to decide to make its decision on the review without taking any further action to enable the applicant to appear before it. The Applicant “cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity” (S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 [26]).
Accordingly, there is no error in the Tribunal's decision to proceed with the review.
The applicant in her amended application refers to the following grounds, and I will deal with them one at a time.
Ground 1:
“The Tribunal failed to assess the chance of my persecution if I attempt to practice (sic) underground religious activities in China.”
That ground appears to cavil with the conclusions of the Tribunal and discloses no reviewable error. There are no particulars provided in support of the allegation and the ground otherwise appears to seek merits review that this Court cannot conduct.
Ground 2:
“The Tribunal did not consider my application in full details and just refused to consider my application any further because of my absence to the hearing invited. As a matter of fact, the reason for my absence was beyond my control, I was not allowed to have another hearing.”
The first respondent submitted that the applicant, in using the words that the reasons for her absence were beyond her control, suggests that the applicant received the letter from the Tribunal. The Tribunal itself noted that the letter was not returned unclaimed. Further, the first respondent submitted that the applicant's statement, that she was not allowed to have another hearing, suggests that the applicant requested another hearing which was denied to her. Again, there is no evidence of any attempt by the applicant to postpone the hearing.
The Tribunal’s decision refers to the brief statement written by the applicant provided to the Department in support of the applicant's protection visa application. The Tribunal also had regard to the brief written statement provided to the Tribunal by the applicant in support of her review application in which she reiterated her claims in a summary form and did not add any further information about her circumstances.
The Tribunal was satisfied that the applicant is a national of the People's Republic of China. The Tribunal then noted the following:
“The applicant has made a number of very serious claims about her experiences in China, including that she was a member of an illegal church group with international connections, that she was recently seriously harmed by the police during a period of detention and that she was only released through payment of a bribe. She has provided no evidence in support of any of these assertions, and the Tribunal is unable to establish the relevant facts. These include the key preliminary issue as to whether she has a knowledge of Christianity consistent with her account, on the basis of which I could be satisfied that she was a Christian who had participated in religious activities in China.
The Tribunal 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.” (Court Book at 66)
Section 36(2) of the Act relevantly provides that the criteria 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.
Section 65(1) of the Act authorises the decision maker to grant a visa if the decision maker is satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied, then the visa application must be refused.
The Tribunal in this case was not satisfied that the applicant had a well-founded fear because of inadequacies in the applicant’s information. The Tribunal, having read all the material and having evaluated its content and weight was unable to reach a specified mental state. (Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29]-[30]; Allsop J in SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [11]-[12]).
Bennett J, in SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 at [23], concluded that the Tribunal in the circumstances was setting out its thought processes.
It was for the applicant to satisfy the Tribunal that she met the criteria required by the legislation for her to be entitled to protection as a refugee (Abebe v The Commonwealth (1999) 197 CLR 510 at 576 (“Abebe”); SJSB v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 225 at [15] – [16]). The Tribunal concluded that on the information before it, it was not so satisfied. The conclusions of the Tribunal were open on the evidence and material before it.
Accordingly, ground 2 is not made out.
Ground 3 does no more than cavil with the factual findings of the Tribunal and seeks merits review. For those reasons, this ground is dismissed.
Ground 4:
“The Tribunal had bias against me when considering my application for a protection visa.”
No particulars by the applicant were provided in respect of this allegation, and there is nothing on the face of the decision or the way in which the Tribunal conducted its review that would otherwise suggest that the Tribunal had approached its obligations in any fashion that could be construed as bias or apprehended bias. The Tribunal had complied with its statutory obligations in inviting the applicant to attend a hearing and had informed the applicant that at that stage it was unable to make a decision in her favour.
The Tribunal considered all the material that was before it and provided reasons for its failure to achieve the level of satisfaction required by ss.36 and 65 of the Act.
Accordingly, ground 4 is not made out.
Ground 5, again, contains no particulars, and indeed the Tribunal's conclusions were drawn solely from the claims made by the applicant. On the basis of the applicant's claims, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention. The Tribunal was not otherwise obliged to search out for itself other independent information (Abebe).
Accordingly, this ground is rejected.
There being no jurisdictional error committed by the Tribunal, the Tribunal's decision is a privative clause decision, and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the proceeding before this Court is dismissed.
The first respondent seeks costs fixed in an amount of $2500 in circumstances where I am informed that the solicitor-client costs are in the order of $3000. I note that the sum sought is less than that provided for by sch.1 of the Federal Magistrates Court Rules 2001. Accordingly, I am satisfied that the costs sought are reasonable.
ORDERS DELIVERED
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 28 July 2006
[FMCoA1]‘she’? or ‘the applicant’?
0
5
2