SZGVY v Minister for Immigration
[2006] FMCA 547
•24 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGVY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 547 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of Protection (Class XA) Visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65, 425, 425A , 426A, 427, 441G, 477, 483A Migration Regulations 1994 (Cth), reg. 4.35D |
| Minister for Immigration v SGLB (2004) 207 ALR 12 SAAP v Minister for Immigration [2005] HCA 24 SZDQO v Minister for Immigration [2005] FCA 1026 SZECF v Minister for Immigration [2005] FCA 1200 SZEEU v Minister for Immigration [2006] FCAFC 2 SZEFM v Minister for Immigration [2006] FCA 78 SZEGX v Minister for Immigration [2006] FCA 166 |
| Applicant: | SZGVY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2008 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2006 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Ms C Gray |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2008 of 2005
| SZGVY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 29 July 2005, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 22 November 2001 and handed down on 18 December 2001, affirming a decision of the delegate of the first respondent made on 29 September 2000, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGVY”.
The first respondent tendered and applied for the affidavit of Catherine Jane Gray sworn on 7 April 2006 (“affidavit of Ms Gray”) to be admitted into evidence.
By a notice of objection to competency filed on 3 August 2005, the first respondent objects to the jurisdiction of this Court to hear the applicant’s application on the basis that:
1The Court has no jurisdiction to review the decision made of the Refugee Review Tribunal (“the Tribunal decision”) on 22 November 2001 as sub-section 477(1A) of the Act provides that an application to the Federal Magistrates Court under s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Act must be made within 28 days of notification of the Tribunal decision.
2The applicant has not identified any other vision that is sought to be reviewed.
Background
The Tribunal decision of 22 November 2001 contains the following background material. The applicant is a citizen of the People’s Republic of China (“the PRC”) and arrived in Australia on 10 June 2000. On 22 June 2000, he lodged an application for a Protection (Class XA) Visa with the Department of Immigration under the Act. On 29 September 2000, a delegate of the Minister refused to grant a protection visa and on 1 November 2000, the applicant applied to the Tribunal for a review of the delegate’s decision.
The Tribunal decision under the heading “Claims and Evidence” indicates that the applicant provided a statement with his original protection visa application, which contained the following information at Court Book (“CB”) 26 to 27:
The reason why I came to Australia is to escape the long term, maltreatment on my family by the Chinese Government.
My wife and I have four children which is against the Chinese One Child Policy. The Chinese Government makes it a rule that one couple can only have one child. Any one couple who violates the rule will be punished. The Chinese Government also makes it to be a political issue.
As my wife and I have four children, so we are considered to have violated the one-child policy which is a big political problem. The punishments imposed on us are
(1)Our children are considered ‘black’ children and are deprived of their entitlement to social welfare benefits and the right to education.
(2)My wife was forces to have birth control operation. She suffered severely both physically and mentally. My wife is currently weak and often has nightmares.
(3)Our basic human rights have been deprived. My wife and I have lost our freedom. We do not have the right to freedom of speech, activity and we do not have any political future in China.
As this kind of prosecution is long term, we find it unbearable. In China we not only have lost our future, our children do not have future as well. We fear this kind of life.
The reason why I fled China is because I violated the Chinese law and have suffered long term punishment. We have deep fear about this kind of life.
I would therefore like to seek political protection in Australia because Australia is a democratic and free country.
Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons are contained in the respondent’s written submissions prepared by Ms Gray and I adopt paragraphs 4 to 15 of those submissions:
4.On 12 September 2001, the Tribunal wrote to the applicant (and his adviser) inviting him to give oral evidence and present submissions at a hearing on 30 October 2001: CB 5 to 6.
5.On 26 October 2001, the Tribunal received a letter from the applicant’s adviser requesting an adjournment of the hearing date (CB 7) and enclosing a letter from Carroll O’Dea Solicitors dated 16 October 2001 about the applicant’s claim for compensation (CB 8), a medical report of Dr Millar dated 25 September 2001 detailing a finger injury the applicant received while at work (CB 9 to 10) and a NSW workers compensation medical certificate dated 12 October 2001 (CB 11 to 12).
6.On 29 October 2001, the Tribunal wrote to the applicant (and his adviser) informing him that it did not agree to an adjournment because it did “not consider that there is anything in Dr Millar’s report to support a conclusion that the applicant would be unable to attend a two hour hearing and give evidence”: CB 13.
7.On 30 October 2001, the Tribunal received a letter sent by facsimile transmission from the applicant’s adviser advising that the applicant was still ill and could not attend the hearing that day: CB 14.
8.On 31 October 2001, the Tribunal wrote to the applicant (and his adviser) requesting a letter from the applicant’s doctor about his condition and explaining how that condition prevented the applicant from attending a two hour hearing and giving evidence: CB 15.
9.On 12 November 2001, the Tribunal received a medical certificate from Dr. Ven Tan advising that the applicant was under his care and suffering from depression and stress due to his impending workcover injury Court case: CB 16.
10.On 13 November 2001, the Tribunal wrote to the applicant (and his adviser) indicating that due to the applicant’s illness the Tribunal hearing on 30 October 2001 was unable to proceed. It noted that the applicant had not produced any medical evidence that he was unable to attend a hearing and give evidence. It also invited the applicant to attend a hearing on 22 November 2001: CB 17 to 18.
11.No response to hearing invitation was received and on 22 November 2001, the applicant failed to attend his scheduled hearing on the time and date and at the place he was scheduled to appear: CB 19. In these circumstances, the Tribunal was specifically empowered to make its decision on the review without the applicant appearing before it: s.426A(1) of the Migration Act 1958 (“the Act”).
12.On 22 November 2001, the Tribunal made its decision affirming the decision of the delegate to refuse the applicant a protection visa and on 18 December 2001, the Tribunal handed down its decision: CB 23 to 29.
13.The Tribunal noted that the applicant did little to support his claim that he would be persecuted if he returned to the PRC. 14. Further, his claim was unsupported even by evidence that he could give himself. It contrasted that lack of evidence with the evidence that he attended his medical examinations in support of his workcover claim: CB 28.3. It found that it was not satisfied that any such fear would be well founded. It commented that the applicant provided no details of any persecution he himself suffered in the past, he gave sparse details of harm suffered by his wife and children (who were not part of the application), he gave no details of his claimed long term punishment and denial of freedom of expression and his claims were unsupported even by evidence that he could give himself: CB 28.6. Accordingly, the Tribunal was not satisfied on the information available that the applicant was persecuted in the past, there was a real chance that he would be persecuted if he returned to the PRC and the applicant had a well founded fear of persecution: CB 28.8.
14.In the present case, the Tribunal’s decision turned on its state of satisfaction, namely that it was not satisfied on the evidence before it that the applicant had a well founded fear: CB 28.9. No jurisdictional error is revealed because the facts that were put forward by the applicant did not cause the Tribunal to be satisfied as to the applicable criteria. It was open to the Tribunal to simply not accept the applicant’s claims and to infer that had he attended a hearing and given oral evidence, he would not have improved his case for the grant of a protection visa.
15.In similar circumstances, where an applicant declined to appear before the Tribunal in the face of a letter (as here) putting the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicant (CB 5 to 6), a Full Court has described rejection of the application as the “inevitable consequence” of the applicant’s non-attendance – which, as a practical matter, must be so, unless the Tribunal changes its evaluation of the same material already presented.
Application for review of the tribunal’s decision
On 29 July 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following grounds:
1.The Tribunal exceeded or constructively failed to exercise jurisdiction in making the decision to affirm the decision of the respondent not to grant the applicant a protection visa; and
2.The Tribunal erred in law in arriving at the decision to affirm the decision of the respondent not to grant the applicant a protection visa. (i) Subparagraph 65(1)(a)(ii) of the Migration Act 1958 (the Act) required the respondent in respect of the applicant’s primary application for a protection visa to make a determination as to whether criteria for the grant of the visa prescribed by the Act or the regulations made thereunder were satisfied; (ii) the Act at the time of the applicant’s review application to the Tribunal required the Tribunal to review the decision of the respondent and to that end the Act vested the Tribunal with powers and discretions conferred by the Act on the respondent. (Copied without alteration or correction).
Reasons
The applicant appeared as a self-represented litigant with the aid of a Mandarin interpreter. He originally appeared before this Court on
30 August 2005 for first Court date directions. At that time the applicant was granted leave to file an amended application and any supporting affidavit material. Arrangements were also made for the applicant to participate in the Legal Advice Scheme provided by the Court. There was some delay in obtaining the legal advice from the panel advisor, necessitating further directions to allow that advice to take place. At the final hearing, the applicant acknowledged that he had had a meeting with the panel advisor, but had not filed either an amended application or any written submissions for the final hearing. He indicated to me that because of his lack of English and lack of understanding of the legal system, he was unsure of what material should be put before the Court. When invited to make oral submissions on his application, he declined to do so.
Ms Gray, appearing for the respondents, provided the Court with written submissions, which initially addressed the two pleaded grounds from the applicant’s original application. I will begin by dealing with those two grounds.
Ms Gray submits that the application claims that the Tribunal exceeded or constructively failed to exercise its jurisdiction in making its decision affirming the delegate’s decision not to grant the applicant a protection visa. While the second ground claims that the Tribunal erred in law in arriving at the decision to grant the applicant a protection visa. Neither of these grounds were supported by particulars or any other form of evidence to support the contentions of those claims. The second ground refers to s.65(1)(a)(ii) of the Act. The assertion is that the Act requires the Tribunal to review the decision of the first respondent. It also vested the Tribunal with powers and discretions. In respect of this issue, Ms Gray submits that s.65 of the Act provides that the Minister is to grant a visa sought by a valid application “if satisfied” of various matters. The Minister’s satisfaction “is a condition precedent to the discharge of the obligation to grant or refuse to grant a visa and is a “jurisdiction fact” or criterion upon which the exercise of that authority is conditioned”: Minister for Immigration v SGLB (2004) 207 ALR 12 at [37] per Gummow and Hayne JJ.
On 12 September 2001, the Tribunal wrote to the applicant advising him that it had reviewed all the material relating to his application, but was not prepared to make a favourable decision on that information alone. The Tribunal extended an invitation to the applicant to attend a hearing before it and to give oral evidence and present arguments in support of his claims. That invitation was extended to include witnesses who would also be able to provide oral evidence he may wish to rely upon. The Tribunal hearing was on Tuesday, 30 October 2001. Ms Gray submits that the Tribunal’s initial invitation to the hearing complied with ss.425(1), 425A and 441G of the Act and reg.4.35D of the Migration Regulations 1994 (Cth). The applicant’s agent Tianyuan Migration Service Centre, responded to the invitation indicating that the applicant sought to have the hearing date changed because he had injured his finger and had a pending compensation case in respect of that injury. The Tribunal decision indicates that the applicant was invited to submit material from his treating doctor outlining his injury and explain why it would prevent the applicant from attending the hearing to give evidence. The applicant supplied further material, being letters from his treating doctor and a law firm handling his compensation case, and a WorkCover medical certificate.
On 13 November 2001, the Tribunal wrote to the applicant acknowledging his medical injury and invited him to a new hearing on 22 November 2001. That letter contained a warning that if the applicant failed to attend and a postponement was not sought, the Tribunal may proceed to make a final decision without further notice to the applicant. Ms Gray submits that the invitation to attend the rescheduled hearing did not have to comply with the notification required under s.425A and regulation 4.35D, because the Tribunal was acting pursuant to its adjournment powers under s.427(1)(b) of the Act: SZEFM v Minister for Immigration [2006] FCA 78 per Bennett J; SZDQO v Minister for Immigration [2005] FCA 1026 at [29] per Conti J. It was submitted that the Tribunal complied with the requirements of the Act and was entitled to proceed to make a determination pursuant to s.426A of the Act where the applicant failed to appear at the hearing.
The Hearing Information Form (CB 19), records that the applicant failed to appear at the scheduled 11.00am hearing on Thursday
22 November 2001. The Tribunal member elected to proceed with a determination as it was permitted to. It is submitted that the Tribunal considered all the applicant’s claims and was not satisfied on the basis of the material before it that he had a well-founded fear of persecution. That finding was open to the Tribunal as the sole arbiter of the facts.
In respect of the issues that arise on the pleadings, I am satisfied that there has been no jurisdictional error on the part of the Tribunal. However, I believe it is necessary to consider the recent decisions in SAAP v Minister for Immigration [2005] HCA 24 and SZEEU v Minister for Immigration [2006] FCAFC 2, which have an impact on this decision. Ms Gray supplied the Court with the recent decision of SZEGX v Minister for Immigration [2006] FCA 166, where Moore J addresses what constitutes information that should be supplied to the applicant under the provisions of s.424A of the Act.In circumstances where the Tribunal simply states that it has not reached the requisite level of satisfaction that the applicant has a well-founded fear of persecution, this is not necessarily a reference to information in the s424A sense.In coming to its conclusion that the requisite level of satisfaction was not met, save any reference to any material, the Tribunal was not obliged to engage s.424A of the Act. His Honour referred to the decision of SZECF v Minister for Immigration [2005] FCA 1200 at [29] per Allsop J:
However, the apparent approval of the judgment of Branson J in NAIH of 2002 at [28] takes the matter one step further. Her Honour was “inclined to doubt” that any inconsistency in an original statement with evidence to the Tribunal necessarily required the engagement of s 424A. That can be accepted. It is only information that is a part of the reason for the decision that engages the section. If, as here, the very form and content of a statement (including what was not said) is central to the rejection of virtually all the evidence of the appellant, I do not see anything her Honour said as necessarily inconsistent with an application of s 424A. Her Honor did not say, nor did the Full Court in WAGP, that an earlier statement of an applicant could not be information.
I accept the submissions of Ms Gray that the reasons of the Tribunal are not contrary to the principles established in SAAP v Minister for Immigration or SZEEU v Minister for Immigration. The applicant provided very little material in support of his claim. Although he was given the opportunity to rectify his position by appearing at the Tribunal hearing and submit additional information, he failed to do so. The Tribunal states that it is not satisfied that there is sufficient information available to it to form a view as to whether the applicant had been persecuted in the past or was likely to be persecuted in the future. The level of satisfaction to make these findings was not reached.
When the applicant was invited to respond to the respondent’s submissions, he raised before me a Falun Gong issue and indicated that this was his claim and that he had suffered persecution because he was a follower of the philosophy in China. I indicated to the applicant that none of the documentation before the Court, the Tribunal or the delegate made any reference to Falun Gong and that this was the first time it had been raised. When I asked him whether he still continued with his claim for persecution with China’s one-child policy, he indicated to the Court that he did not understand what this policy meant.
I spent a brief period discussing the claim the applicant had lodged his original application under, in particular, his four children, the forced sterilisation of his wife, the denial of educational benefits and the persecution of his family by the authorities. The applicant then enquired whether he could have more than one claim. He indicated to me again that he would prefer to pursue the Falun Gong claim. I said to the applicant that I could not find that the Tribunal had committed jurisdictional error on an issue which had never been raised before it, nor at any stage since the original application until his Court appearance today. I am unable to comment whether this is a serious issue the applicant faces, or it is merely a vain attempt to find a basis for a protection visa application. Consequently, I have put the Falun Gong issue to one side and will limit my consideration to the issues that were previously before the Minister’s delegate and the Tribunal.
Conclusion
The grounds in the application are both general and without particularisation and I believe they do not give rise to any jurisdictional error. The Tribunal made its decision based on a lack of satisfaction that the applicant had put forward a sufficient claim.
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 the application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 19 April 2006
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