SZGZJ v Minister for Immigration
[2007] FMCA 587
•20 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGZJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 587 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 425, 425A, 426A, 483A |
| Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NAST v Minister for Immigration [2004] FCAFC 208 SJSB v Minister for Immigration [2004] FCAFC 215 |
| Applicant: | SZGZJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2228 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 14 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Ms K McNamara of DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 18 August 2005 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 |
SYG2228 of 2005
| SZGZJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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 18 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 24 June 2005 and handed down on
14 July 2005, affirming a decision of the delegate of the first respondent made on 16 February 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated 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 “SZGZJ”.
A Court Book (“CB”) prepared by the first respondent’s solicitors was filed on 14 September 2005 and is marked Exhibit “A”. It was read into evidence.
Background
The Tribunal decision of Ms A. Younes, reference N05/50856, provides the following background information. The applicant, who claims to be a citizen of the Peoples Republic of China arrived in Australia on
2 December 2004. On 11 January 2005, she lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 16 February 2005, a delegate of the Minister refused to grant a protection visa and on 22 March 2005, the applicant applied to the Tribunal for review of the delegate’s decision.(CB 62)
Applicant’s claims
The Tribunal decision sets out the applicant’s claims, which I adopt for the purposes of this judgment:
In 1995 and due to poor working conditions and tiredness, her husband got diabetes and gout.
In early 1998, a family relative taught her husband to practise Falun Gong hoping that it would be good for his health. She had a stomach disease which she wanted to cure.
They practised Falun Gong twice a week after dinner in the Falun Gong Service Centre.
“At the end of this year”, they were forbidden from practising Falun Gong. Her husband did not “obey the rules and he was fired and jailed”. She was forced to report to the police station.
Upon his release, her husband had totally changed. He was very skinny and his hair went white. In fear for her, he requested a divorce and asked her to leave China.(CB 65)
Tribunal’s findings and reasons
The Tribunal decision under the heading ‘Findings and Reasons’ contains the following paragraphs:
In essence, the applicant makes a series of vague and general claims. Further, the applicant has not provided any corroborative evidence supportive of her claims. The Tribunal is satisfied that the applicant has been given proper opportunity to support her application both at the primary level as well as at the review stage. She has not attended a hearing and the Tribunal has no explanation for the lack of attendance. The applicant was put on notice that the Tribunal could not make a favourable decision on the basis of the available information. The Tribunal is satisfied that the applicant has had notice of the hearing but is not genuine about pursuing her case.
Without further details, clarifications, corroborative evidence and without having had the opportunity to explore the claims with the applicant at a hearing, the Tribunal is not satisfied that the applicant and/or indeed her husband are Falun Gong practitioners, nor is the Tribunal satisfied that they were involved in any Falun Gong activities. It follows that the Tribunal is not satisfied that her husband did not “obey the rules and he as fired and jailed”, nor is the Tribunal satisfied that she was forced to report to the police station. In essence, the Tribunal is not satisfied that the applicant had suffered any of the claimed harm.(CB 66)
Application for review of the Tribunal’s decision
On 18 August 2005, the applicant filed an application for review in this Court under s.39B of the Judiciary Act setting out the following grounds:
1.I am a membership of a particular group-Falun Gong. I experienced a terrible ordeal in my original country as a genuine Falun Gong practitioner.
2.I fear persecution because I am a membership of Falun Gong, and I also believe my fear of the persecution is well-founded.
In accordance with orders made at the first Court date, the applicant filed an amended application on 22 November 2005. It does not contain any grounds of review and only repeats brief information about the applicant, together with her claims.
Submissions and reasons
The applicant appeared as a self-represented litigant with the assistance of a Mandarin interpreter. The applicant confirmed to the Court that she had filed an amended application, but had not complied with the Court order to file written submissions. She wished to make oral submissions in support of her application. The applicant said that she had not received a letter from the Tribunal. This was an apparent reference to a Tribunal letter of 11 May 2005, indicating that it had considered all of the material in the applicant’s application but was unable to make a decision in her favour on this information alone.(CB 51-52) The letter invited the applicant to appear at a hearing on
23 June 2005.
I invited the applicant, with the assistance of the interpreter, to refer to her Tribunal application.(CB 44-48) In reply to the question ‘Do you have an adviser you authorise to act for you in relation to this application? (for example a migration agent)’, the applicant replied she did not. In reply to the question ‘Where do you want us to send correspondence about your application? (tick one box only)’, the applicant gave a P.O. Box address as her mailing address. Finally, the applicant confirmed that the signature on the declaration dated
22 March 2005 was hers:
I declare that the information I have supplied on or with this form is complete, correct and up-to-date in every detail.(CB 47)
I then asked the applicant to turn to the Tribunal letter inviting her to a hearing and confirmed that it was addressed and sent to her P.O. Box.(CB 51-52) The letter was sent by registered post (RP22814003), in accordance with her instructions on the Tribunal application form. The applicant acknowledged that the P.O. Box she gave was in fact that of an agent who had been acting on her behalf, although this was not disclosed on her application form.
Ms McNamara, appearing for the first respondent, indicated that she would rely upon her written submissions filed in these proceedings. Those written submissions submit that the Tribunal fulfilled its obligation under s.425 of the Act by inviting the applicant to attend a hearing. Sufficient notice of that hearing was given under s.425A. The applicant did not respond to the invitation. Consequently, the Tribunal proceeded to make its decision as it was entitled to do pursuant to s.426A. That decision was based on the findings that there was insufficient evidence to satisfy the applicant’s claims.
Ms McNamara referred the Court to SJSB v Minister for Immigration [2004] FCAFC 215 at [15] – [16] per Ryan, Jacobson and Lander JJ, which concluded that the legislative regime requires a positive state of satisfaction as to whether protection obligations are owed. It also mandates a refusal if that state of satisfaction is not reached. The Tribunal in the matter before this Court could not reach a positive state of satisfaction in relation to the applicant’s claims. In those circumstances, its decision was inevitable.
Ms McNamara also referred to NAST v Minister for Immigration [2004] FCAFC 208 at [4] – [5] which stated:
4.In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.
5.In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.
It is submitted by the first respondent that the Tribunal was mandated to affirm the decision on review because, on the lack of evidence before it, it could not reach a positive state of satisfaction as required by the Act. I accept those submissions and I am satisfied that the decision of the Tribunal is correct.
Although the amended application filed in these proceedings does not specifically identify any grounds of review in respect of the Tribunal decision, I accept the first respondent’s submissions that the applicant is inviting the Court to conduct a merits review of the Tribunal decision. This Court cannot conduct a merits review of a Tribunal decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.
Conclusion
The applicant is a self-represented litigant, who appeared with the assistance of a Mandarin interpreter. The applicant appears to have relied on an unidentified agent who, on the applicant’s own admission, has been of little assistance and was unreliable. I have independently reviewed the Court Book and Tribunal decision to consider whether any argument based on those documents could have been made out. There are no valid grounds of review contained in the original or amended application, nor is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the application should be dismissed.
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 this application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 19 April 2007
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