SZGWG v Minister for Immigration
[2007] FMCA 39
•15 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGWG v MINISTER FOR IMMIGRATION | [2007] FMCA 39 |
| MIGRATION – Review of RRT decision − where the applicant did not attend the Tribunal hearing − where the application and file was lost by the respondent − where the respondent requested the applicant provide it with a copy of the application, the statement and supporting documents − where the applicant did not so provide − where the Tribunal made a decision on the basis of there being insufficient evidence before it to come to the requisite state of satisfaction required by s.65 Migration Act − whether the Tribunal erred in using unreliable third party information − whether the Tribunal was in breach of s.418(3) Migration Act by not providing the file to the applicant. |
| Migration Act 1958, ss.65, 418(3), 426A |
| WAGP v Minister for Immigration [2006] FCAFC 103 |
| Applicant: | SZGWG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG2024 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 15 January 2007 |
| Date of Last Submission: | 15 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 January 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr D Godwin |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application be dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00.
The First Respondent be amended to read Minister for Immigration & Multicultural Affairs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2024 of 2005
| SZGWG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. He arrived in Australia on 12 December 2004. On 24 January 2005 he made an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 7 February 2005 a delegate of the Minister refused to grant a protection visa and on 9 March 2005 the applicant applied for a review of that decision.
On 27 April 2005 the Tribunal wrote to the applicant stating that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to a hearing on 20 May 2005. There is no evidence in the green book as to what the applicant did in relation to that hearing invitation.
It is of some concern to me that in the letter of 27 April it is stated that the Tribunal had considered all the material before it. The letter was written some 12 days after a report found at [CB 52] which indicated that the DIMIA file could not be located. One has to wonder exactly what the writer of the letter read.
The applicant did not attend the hearing scheduled for 20 May 2005. On 20 May 2005 the Tribunal, which presumably on that date commenced a fuller review of the applicant’s case, wrote to him, informing him that the protection visa application and his file had been lost. The letter went on:
“The Tribunal therefore has no information before it about your claims other than the information recorded in the delegate’s decision record. I would like you to provide the Tribunal, on or before 16 June 2005, a copy of your application for protection visa, a statement of your claims and any other documents or information in support of your claims that you wish the Tribunal to consider.”
The applicant did not respond to this letter, which like the other letters sent by the Tribunal were all posted to the address notified by the applicant in section D of his application found at [CB 55]. The applicant not having appeared and not having responded to the letter, the Tribunal, pursuant to s.426A of the Migration Act 1958 (the “Act”), proceeded to make its decision, which it made on 23 June 2005 and handed down on 14 July 2005. The Tribunal affirmed the decision not to grant a protection visa.
The applicant’s grounds for seeking the protection of Australia were based upon his alleged involvement with Falun Gong whilst in China. That much was known to the Tribunal from the delegate’s decision which is found between [CB 43] and [CB 51]. The file in question has also now been found, and it includes a statement from the applicant at [CB 27-28], the essence of which I am satisfied is fairly reproduced at [CB 50-51] within the delegate’s decision; in particular, the references to the applicant being placed in detention because of his views, his release from detention and his feeling that he was being watched, all of which could, had the assertions been accepted, establish that the applicant had a well-founded fear of persecution for the Convention reason of religion, imputed political opinion or membership of a particular social group.
The Tribunal considered these matters and in its findings and reasons at [CB 73] said:
“The reason that the Tribunal cannot be satisfied about these matters [the applicant’s claims for protection] is that the applicant’s claims are mere assertions and there is a lack of detail about his claims before the Tribunal. Generally, there is little detail of the applicant’s involvement in and practice of Falun Gong and the persecution he alleges. Although the DIMIA file is missing and the applicant’s original application for protection is not before the Tribunal it would be expected that this detail would be forthcoming from the applicant, either in writing or orally at a hearing, if his claims were genuine and could be substantiated. The applicant has not responded to any correspondence from the Tribunal; he has not attended the hearing or sent the Tribunal any information about his claims despite being invited to do so in a letter sent to him and despite being informed that the DIMIA file, including his original application for protection, is not before the Tribunal.
In the Tribunal’s view there is no evidence before it to enable it to conclude that the applicant will suffer persecution from authorities in China either now or in the reasonably foreseeable future for Falun Gong activities if he returns to his country. Having regard to the above the Tribunal is not satisfied, on the evidence presently presented before it, that the applicant has a well-founded fear of persecution in China within the meaning of the Convention.”
The ground then, for the decision, was simply a lack of satisfaction based upon the applicant’s failure to attend the hearing and provide the Tribunal with the type of details it believed was necessary for it to come to that state of satisfaction required by s.65 of the Act. The assessment of the state of satisfaction is a matter for the Tribunal alone.
The applicant seeks review from this court on the basis found in his amended application filed on 16 November 2005 which states that he believed the Tribunal had made a jurisdictional error by using inappropriate third party information which was not reliable nor accurate. As can be seen from the extract from the decision which I have set out in these reasons, the Tribunal did not use such information at all. It was the failure of the applicant to provide the necessary information which resulted in the decision being made against him.
The applicant also said that the Tribunal did not consider his education level and lack of English proficiency and processed his case within a minimal time and resources. It would have been difficult for the Tribunal to consider the applicant’s education level or lack of English proficiency when he did not attend the hearing nor respond in any way to the Tribunal’s communications.
The respondent has rightly taken upon itself the responsibility of formulating another possible claim by the applicant, namely the failure of the Secretary to provide the Tribunal with the departmental file being a breach of s.418(3) of the Act. In his helpful written submissions Mr Godwin considers this matter in some considerable detail. It is sufficient to say here that I am bound by the authority of the Full Bench of the Federal Court in WAGP v Minister for Immigration [2006] FCAFC 103, where a very similar matter was considered between [50] and [67], as the Full Bench said at [64]:
“The obligation under section 418(3) is upon the Secretary, not upon the Tribunal. The obligation is upon the Secretary to form a view as to the relevance of each document in the Secretary’s possession or to control the review of the decision by the Tribunal … Those considerations fortify, in our view, the conclusion to be drawn from the place section 418(3) occupies in the Act as discussed in the preceding paragraph. It would be surprising if it were intended that a breach of section 418(3) by the Secretary, perhaps through inadvertence (as here) or through an error of judgment should result in the Tribunal’s decision being tainted with jurisdictional error when it had fulfilled the procedures described by division 4 of Part 7 and any additional procedural fairness obligations imposed upon it.”
In this particular case the Tribunal did provide the applicant with procedural fairness. It notified him by letter that the documents had not been sent to it and offered him the opportunity to provide those documents to the Tribunal. The way I read the letter would indicate that if the applicant then asked again for a hearing, he would in all probability have been granted one. But the applicant remained mute.
I am satisfied that in the circumstances the Tribunal did not fall into jurisdictional error by considering the applicant’s claims in the manner in which it did and in the absence of the documents. The claims that it considered are now borne out to have been the same claims as were considered by the delegate.
In these circumstances I am unable to grant the applicant the relief he seeks and I must dismiss his application, which I do. The applicant must pay the respondent’s costs which I estimate in the sum of $5000. I would also order that the name of the first respondent should be amended to read Minister for Immigration and Multicultural Affairs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
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