SZGXA v Minister for Immigration - [2007] FMCA 205

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGXA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 205

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65; 65(1); 424A(1); 425; 425A; 426A; 441A; 474; pt.8 div.2
Federal Magistrates Court Rules 2001

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
WABC v Minster for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195

Applicant:

SZGXA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2078 of 2005

Judgment of:

Emmett FM

Hearing date:

14 February 2007

Date of last submission:

14 February 2007

Delivered at:

Sydney

Delivered on:

14 February 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Mr S. Free

Solicitors for the Respondent:

Mr O. Young, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2078 of 2005

SZGXA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 June 2005 and handed down on 12 July 2005.
The applicant was born on 20 October 1971 and claims to be from the People's Republic of China (“the PRC”) and a Falun Gong practitioner. The applicant arrived in Australia on 28 November 2004, having legally departed from Beijing on a passport issued in his own name and a sub-class 676 visa.
On 2 December 2004, the applicant lodged an application for a protection visa with the now Department of Immigration and Citizenship, known then as the Department of Immigration Multicultural and Indigenous Affairs.
In support of his application the applicant, provided a statement that he became a Falun Gong member in 1997 and that, together with colleagues he went to Beijing to support other members where he participated in demonstrations and presented a petition to the Government in support of the legal status of Falun Gong.
The applicant stated that at the end of 2003 members of his factory were detained when they practised Falun Gong and police began investigation of several people at the applicant's factory, including the applicant. The applicant stated that with the help of a friend he obtained a passport and visa to come to Australia.
On 27 January 2005, a delegate of the first respondent refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 2 March 2005, the applicant lodged an application for review of the delegate's decision with the Tribunal. That application contained no further material in support of the applicant's application, and indeed none was furnished by the applicant at any time in support of his review application.
The review application gave the applicant's residential address as the only address of the applicant provided to the Tribunal. On 2 March 2005, the Tribunal wrote to the applicant at the residential address acknowledging receipt of his application and notifying the applicant that the Tribunal had asked the Department to send its file, following which, the Tribunal would consider the applicant's review application.
The letter went on to give the applicant various information about the review process and invited the applicant immediately to send any further documents or information or other evidence that the applicant may wish the Tribunal to consider. Nothing further was sent by or on behalf the applicant to the Tribunal in support of the review application.
On 27 April 2005, the Tribunal wrote again to the applicant at his residential address. That letter informed the applicant that the Tribunal 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 letter went on to invite the applicant to come to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The letter identified the date, time and place of such hearing, and informed the applicant that the Tribunal will only change its hearing date for good reason, and that, if the applicant thought he may be unable to attend a hearing, he should contact the Tribunal immediately because, if he did not attend the hearing or the Tribunal did not postpone the hearing, it could make a decision on his case without further notice.
The letter enclosed a Response to Hearing Invitation form which it requested the applicant to complete and return to the Tribunal. The letter also invited the applicant to send any new documents or written arguments that he may wish the Tribunal to consider. The Response to Hearing Invitation form was not returned to the Tribunal and nor were any further documents or arguments received by the Tribunal from the applicant.
In a decision dated 21 June 2005, the Tribunal noted that it had written to the applicant in the terms of the letter dated 27 April 2005, and noted in particular that the applicant was advised that, if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal noted that no response was received from the applicant and that a no “reply check” was conducted. In those circumstances, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The applicant does not contend, nor is there any evidence, that the letter of 27 April 2005 was not received by the applicant, or that the letter was otherwise not sent in accordance with s.425 of the Act. Section 425 requires that such notice comply with the regime of the giving of a notice pursuant to s.425A of the Act, and in accordance with s.441A of the Act. Again, there was no contention that the invitation was not sent in accordance with the Act.
Accordingly, the Tribunal's decision to proceed with its review without taking any further action to enable the applicant to appear before it was made in accordance with s.426A of the Act and is without error.
The Tribunal noted that it had before it the Department's file, including the applicant’s protection visa application and the Delegate's records. The Tribunal recounted the applicant’s claims made in a statement furnished by the applicant in support of his protection visa application. The Tribunal also noted that the applicant was advised that the Tribunal was unable to make a decision in his favour on the information provided in the protection visa application and review application and that the applicant had not appeared before the Tribunal to elaborate upon his claims.
The Tribunal stated that it had a number of issues about which it required detailed evidence before it could be satisfied about the applicant's claims. The Tribunal concluded that:
“On the very limited, vague and unreliable evidence available, the Tribunal cannot be satisfied about the Applicant’s claim that he participated in Falun Gong activities in China and that he was in fear of arrest by the Chinese authorities and so fled to Australia.”
The Tribunal concluded that it was not satisfied, on the evidence before it, that the applicant has a well founded fear of persecution within the meaning of the Refugees Convention as amended by the Refugees Protocol. Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
Accordingly, the Tribunal affirmed the decision under review.
The applicant was unrepresented before this Court at the hearing this afternoon, although had the assistance of an interpreter. The applicant confirmed that he relied upon an amended application filed in this Court on 18 October 2005, and on further particulars provided by him in a letter dated 30 December 2005. Those grounds and those further particulars are accurately set out in the respondent's outline of submissions at paragraph 7 subparagraphs 1 to 8:
“7. The amended application filed on 18 October 2005 sets out a number of grounds of review. It is respectfully submitted that the grounds of review, as set out in the amended application, are not sufficiently particularised to identify any proper bases for alleging jurisdictional error by the RRT. By letters exchanged in November and December 2005, the first respondent requested and received from the applicant further particulars as to the grounds of review on which he relies. Combining those particulars with the grounds of appeal set out in the amended application, it appears that the applicant relies on the following grounds of review (with the grounds of appeal being paraphrased and the particulars noted in square brackets):
1) The RRT did not properly consider the chance of the applicant being persecuted in the PRC because of his membership of a particular social group. [The RRT did not refer to independent information or notify the applicant of the plausible reasons why it would refuse the application];
2) The RRT’s satisfaction that the applicant was not a refugee was not based upon reasoning which provided a rational or logical foundation for the belief. [The RRT did not provide any evidence or materials to prove that the applicant was not a refugee];
3) The RRT had bias against the applicant when considering his application. [The RRT had bias against the applicant because he could not manage to attend the interview which he was offered];
4) The RRT decision was not supported by evidence or materials. [The RRT should have considered the application, referred to independent information and/or provided evidence why it would refuse the application];
5) The RRT decision was based on assumptions by the RRT. [The RRT assumed that the applicant would not be persecuted because no evidence was found about his membership of Falun Gong];
6) The RRT did not believe the applicant’s claims and was suspicious of those claims without reason. [The RRT should have informed the applicant in writing the reasons why it would refuse his application];
7) The RRT did not apply the correct procedure in dealing with the application. [The RRT did not consider the application at all because he did not attend the interview]; and
8) The RRT made jurisdictional errors when considering the application. [The alleged jurisdictional errors are as described in grounds 1 to 7].”
The applicant made no other submission in support of his application, despite having had each of the grounds interpreted for him and being invited to make whatever submissions he wished in support of each ground.
I now deal with each of those grounds.
Ground 1 appears to be a complaint that the Tribunal did not properly consider the chance of the applicant being persecuted because of his membership of a particular social group. The Tribunal's decision makes it clear that it was not satisfied that the applicant was a member of the particular social group of Falun Gong practitioners. The Tribunal decision makes clear that the reason for its lack of satisfaction about the applicant’s claims was the very limited, vague and unreliable evidence available to it and the fact that it had no opportunity to explore a number of issues with the applicant about his claims.
The particular furnished by the applicant in support of ground 1 appears to be a complaint that the Tribunal did not refer to independent information or notify the applicant of the possible reasons why it would refuse the application. The Tribunal does not have a duty to make further inquiries and to refer to additional evidence before making a decision. The Tribunal is not under any obligation to obtain information that has not been provided by an applicant (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]-[21]).
Section 65(1) of the Act requires a decision maker such as the Tribunal to be satisfied that the prescribed criteria for a protection visa have been met. However, if the Tribunal is not so satisfied, then s.65 states that the Tribunal must refuse a protection visa.
In the proceeding before this Court, the Tribunal concluded that it was not satisfied that the criteria for a protection visa had been met. In those circumstances, it was bound to refuse the applicant a protection visa and affirm the decision under review.
The Tribunal decision made clear the reason for its conclusion, namely the limited, vague and unreliable evidence available to it. In the circumstances, such a conclusion was open to the Tribunal on the material before it, and for which it provided reasons.
Accordingly, ground 1 is not made out.
Grounds 2, 4, 5 and 6 are also not made out for the same reasons. None of the grounds contain any particulars beyond the bare assertion, and each of the grounds is met by the reasons referred to above in consideration of ground 1.
Accordingly, grounds 2, 4, 5 and 6 are not made out.
Ground 3 is a complaint that the Tribunal was biased against the applicant. The particular upon which the applicant relies in support of that allegation is that the applicant had not attended the interview which he was offered. There is otherwise no evidence to support such an assertion. There is nothing in the conduct by the Tribunal of its review, including the making of its decision, that may reasonably lead to the conclusion that the Tribunal did not bring an impartial mind to the resolution of the question to be decided, or otherwise, approached its task with a mind not open to persuasion.
Moreover, no inference of bias or prejudgment can be drawn from the mere fact that the Tribunal has made adverse findings. I refer to paragraph 15 of the first respondent's submissions, and indeed the other authorities referred to by the first respondent in relation to this ground:
“No inference of bias or prejudgment can be drawn from the mere fact that RRT has made adverse findings: VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3].”
Accordingly, ground 3 is rejected.
Ground 7 complains that the Court did not apply the correct procedure in dealing with his application and relies on a particular that the Tribunal did not consider the application because the applicant did not attend the interview.
As is referred to above in these Reasons, the Tribunal's decision to proceed with its review without taking any further step to enable the applicant to appear before it was a decision open to it, pursuant to s.426A of the Act and was without error.
Accordingly, this ground is rejected.
Ground 8 is a general assertion of error that discloses no error capable of review, and is accordingly rejected.
The Tribunal otherwise conducted its review, including the making of its decision, in accordance with the statutory regime. There was no information to which the Tribunal had regard that enlivened the Tribunal's obligations under s.424A(1) of the Act. The reason for the Tribunal affirming the decision under review was the lack of information provided by the applicant to substantiate his claims. And in those circumstances there is no enlivenment of the obligations of s.424A(1) of the Act (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 and SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195).
In the circumstances, the decision of the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to intervene and the application is dismissed.

RECORDED : NOT TRANSCRIBED

The first respondent seeks costs fixed in an amount of $3500. I note that the relevant schedule is the old schedule of the Federal Magistrates Court Rules 2001. That schedule provides for a sum in excess of the amount sought. I note that counsel was briefed in the matter and I am satisfied that it was appropriate that reasonable costs on behalf of counsel be incurred. I am otherwise satisfied that the sum sought is reasonable.

ORDERS DELIVERED

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 26 February 2007