SZHAV v Minister for Immigration
[2006] FMCA 415
•16 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHAV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 415 |
| MIGRATION – Review of decision of RRT – whether the Tribunal was biased and did not refer to any independent information – whether the Tribunal failed to hear the application pursuant to the necessary steps – whether the Tribunal failed to observe the Act properly - whether the Tribunal failed to assess the chance of persecution adequately on the basis that the application was too vague and lacking in detail. |
| Migration Act 1958 (Cth), s.426A Federal Magistrates Court Rules 2001, Rule 13.03A(c) |
| NAST v Minister for Immigration [2004] FCA 86 |
| Applicant: | SZHAV |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2413 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 16 March 2006 |
| Date of Last Submission: | 16 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2006 |
REPRESENTATION
Applicant in Person
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2413 of 2005
| SZHAV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the Peoples Republic of China. He arrived in Australia on 29 November 2004. On 10 January 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 11 March 2005 a delegate of the Minister refused to grant a protection visa and on 11 April 2005 the applicant applied for review of that decision. On 26 May 2005 the Tribunal wrote to the applicant at the address given by him in his application as his address for service and informed him 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 offered the applicant an opportunity to come to a hearing on 8 July 2005. On 7 June 2005 the Tribunal wrote to the applicant again at the same address. It informed him that due to circumstances beyond its control, it was necessary to change the hearing date. The date was changed from 8 July to 7 July. The time within which the Tribunal gave that notice was in excess of the time required by the Migration Act 1958 (Cth) (‘the Act”). On 7 July 2005 the applicant did not appear at the hearing. The Tribunal checked and found that none of the mail which it had sent to the applicant had been returned [CB60]. The Tribunal therefore determined to hear the case in accordance with the provisions of s.426A of the Act. On 8 July 2005 it affirmed the decision not to grant the protection visa and handed the decision down on 2 August.
The applicant's claim to have a well founded fear of persecution arose out of his alleged membership of the Falun Gong. The applicant, in a statement attached to his application for review and found at CB 54 says:
“My wife was a key member of Falun Gong and, influenced by her, I became a member. When I was in China I had to hide here and there for practising Falun Gong. We could not endure freedom of belief in China. In May 2003 police detained me because of my Falun Gong activities. I was tormented both physically and mentally. In May 2004 police came again. Police detained me for five days. I had to come to Australia for protection.”
In his application to the delegate, the applicant had indicated that his wife had ceased her Falun Gong activities but he was unable to. The Tribunal said in its findings and reasons at CB 73:
“In essence, the applicant makes a series of vague and general claims lacking in details. Of particular concern is the lack of provision by the applicant of details pertaining to how and when he practised Falun Gong. Further, the applicant has not provided any corroborative evidence supportive of his claims. The Tribunal is satisfied that the applicant has been given proper opportunities to support his application, both at the primary level as well as at the review stage. He 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 his 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 his wife 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 the applicant was ever detained or that he paid money to be released or that he was warned that if he got caught again he would be sentenced and imprisoned. In essence, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm. On the basis of the available information the Tribunal is not satisfied that the applicant had suffered any Convention related harm, nor is the Tribunal satisfied there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future.”
The applicant submitted an application for review to this court on
19 December 2005. The grounds of the application were four-fold. The first ground alleged that the Tribunal was biased and did not refer to any independent information for consideration of his application. The ground goes on to say that the Tribunal refused to consider the application with the normal procedures because the Tribunal believed that:
“I had made a series of vague and general claims lacking in details.”
In regard to this ground, I would say that it is now well established that a claim of bias on the part of the Tribunal is a serious matter which must be only made with caution and must be properly proved. The applicant has provided no particulars of the alleged bias as required by the rules and to the extent that the second part of this first ground gives such particulars, they are, to my mind, an excellent justification for the Tribunal taking the course which it did. The Tribunal is entitled to come to a view that the series of vague and general claims lacking in detail did not assist it to come to the state of satisfaction required under the Act.
The second ground is that the “Tribunal did not consider the application with the necessary steps. The Tribunal just refused the application in the simplest way”. In the absence of the applicant, it was difficult for the Tribunal to do much more than it did. The Tribunal took into account the matters raised by the applicant before the delegate and his statement made in his application to the Tribunal for review. As Allsop J said in NAST v Minister for Immigration [2004] FCA 86 at [6]:
“My task in an application such as this is to ensure that the Tribunal has approached the matter lawfully so that it can be assessed one way or the other whether the claims of the applicant have been lawfully and properly considered. What it is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either is satisfied of all the relevant matters or it is not satisfied of all the relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well founded fear of persecution under the Refugee Convention. The Tribunal had considered the application and had written to the applicant to inform it that it had not arrived at a state of satisfaction and could not do so without discussing matters with the applicant. It gave him an opportunity to come to the Tribunal and discuss those matters. He did not take that opportunity. There is nothing unreasonable in the fact that the Tribunal maintained its lack of satisfaction through to its decision.”
The third ground of application is that the “Tribunal did not observe the Act properly in assessing his application for a protection visa”. I am quite satisfied that on the face of the record there is no breach of the Migration Act and in the absence of any particulars I am unable to point to one that might have occurred.
The fourth ground is that the Tribunal failed to assess the chance of persecution on return to China and refused to consider the applicant's claims in writing and made a decision on the basis that the application was too vague and lacking in detail. The Tribunal did consider the applicant's chance of persecution if he returned to China. It had determined that it was not so notified the applicant was not a practitioner of Falun Gong. In the absence of any other claims concerning his fear to return to China, the Tribunal quite rightly concluded that there were no chances of persecution if he did return. The Tribunal did not refuse to consider the claims made by the applicant in writing; it did so in the manner in which I have described and which can be seen in the court book. It is true that the Tribunal made a decision to refuse the application on the basis that it was too vague and lacking in details. This is a very good reason for refusing an application which requires a Tribunal to reach a state of satisfaction. It does not point to any jurisdictional error.
Finally, the applicant argues that the Tribunal did not understand his claims. I am quite satisfied that there is no substance in this allegation. The applicant came before me today. He had previously been due to appear at a callover on 10 February at 2.15. For reasons given in his affidavit dated 7 March 2006, which I accept, he did not arrive at the court in which the callover was held. Consequently, the registrar dismissed his application under Rule 13.03A(c) of the Federal Magistrates Court Rules 2001. The applicant sought to have his case restored. I did restore it and the applicant indicated to me that he was aware of the reasons why he believed that the Tribunal had erred in the manner in which it came to its conclusion.
I note that the applicant had been given the opportunity to take advantage of the Minister's scheme in December 2005. I determined that I should allow the application to restore the matter and hear it today. This is what occurred. I asked the applicant whether he had anything to say as to why he believed the Tribunal had erred in law in the manner in which it came to its conclusions but he was unable to advance any reasons. I have therefore dealt with the matter on the basis of the written application originally submitted. The application is dismissed. I order that the applicant pay the respondent's costs which I assess in the sum of $2,500.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 24 March 2006
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