SZHFA v Minister for Immigration

[2007] FMCA 198

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 198

MIGRATION – Review of RRT decision − where the applicant did not accept the Tribunal’s invitation to appear at the hearing − where the Tribunal was not satisfied on the evidence before it that the applicant was a refugee under the Migration Act − whether an error in the delegate’s decision constitutes jurisdictional error on the part of the Tribunal − whether the Tribunal properly considered the applicant’s claims and relevant country information − whether the Tribunal erred in its consideration of the applicant’s claims in the absence of the applicant.

Migration Act 1958

Abebe v The Commonwealth (1999) CLR 510
Dranichnikov v Minister for Immigration (2003) 197 ALR 389
Zubair v Minister for Immigration [2004] 211 ALR 261

Applicant: SZHFA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2722 of 2005

Judgment of: Raphael FM

Hearing date: 16 February 2007

Date of Last Submission: 16 February 2007

Delivered at: Sydney

Delivered on: 16 February 2007

REPRESENTATION

Applicant in Person

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $3000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2722 of 2005

SZHFA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia on 20 January 2005.  On 15 February 2005 he lodged an application for a protection (XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 16 March 2005 a delegate of the Minister refused to grant a protection visa and on 18 April 2005 the applicant applied for review of that decision.  On 4 July 2005 the Tribunal wrote to the applicant advising 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 invited the applicant to a hearing on 2 August 2005.  That letter was received by the applicant who responded positively to it by fax dated 20 July 2005 [CB51].  However, the applicant did not attend the hearing.  On 3 August 2005 the Tribunal determined to affirm the decision not to grant a protection visa and it handed that decision down on 23 August.

2. The grounds upon which the applicant claimed that Australia owed him protection obligations are contained in a short statement found at [CB7].  Essentially the claims are that the applicant only had a short period of schooling in China and was a labourer at a plastic company in Tiangjin from 1982 until 2002.  The company had been taken over in 2001 by a Hong Kong company.  In July 2002 the applicant and 120 other employees were made redundant.  He received an unemployment allowance which he claimed was only 200 yuan per month and he could not survive on it.  The applicant tried to do some small business to support his family but it was unsuccessful.  He then joined in a protest seeking unemployment welfare which was disrupted by the police.  Although he says that some of the protest organisers were imprisoned, he does not say that that happened to him nor does he say that he suffered any other form of physical harm.

3. It can be seen clearly from this description of the applicant’s claims that if he was to have any chance of success, he would have to attend before the Tribunal and provide far more detail.  His failure to do so meant that the Tribunal was placed in a position whereby it could not be satisfied that the applicant had made out the statutory elements for the grant of protection.  It is now clear that it is for the applicant to satisfy the Tribunal that he is a person to whom Australia owes protection obligations and this must be done in a positive way: Abebe v The Commonwealth (1999) CLR 510 per Gummow and Hayne JJ at [187]; Dranichnikov v Minister for Immigration (2003) 197 ALR 389 per Kirby J at [78]. When the Tribunal determined that on the basis of the evidence before it it was not able to be so satisfied it did not, to my mind, commit any jurisdictional error.

4. There are three particulars of jurisdictional error provided by the applicant in the application to this court filed on 26 September 2005.  The first related to the decision of the delegate.  There is certainly something odd about the decision of the delegate which commences at [CB35].  At [CB38] the delegate sets out the applicant’s claims but it is quite clear that they are not the claims of this particular applicant at all.  However, the claims of this applicant are picked up at [CB39] and it appears to be upon them that the decision of the delegate was based.  Since the Federal Court clarified the law in Zubair v Minister for Immigration [2004] 211 ALR 261, there is now no doubt that any errors that may have been made in the delegate’s decision are cured by the merits review provided by the Tribunal and so that is not a ground for impeaching the Tribunal’s decision.

5. The second matter put by the applicant is that “by reaching a finding that the applicant had not suffered any Convention related harm, the Tribunal failed to properly consider his claims and the relevant country information concerning Falun Gong practice in China”.  Clearly the applicant did not write this document.  Any moral superiority he may have felt as a result of the clear mistake on the part of the delegate would be met by the suggestion that this gentlemen was equally in need of a competent sub-editor.  No claim relating to Falun Gong was made either to the delegate or to the Tribunal.

6. The third ground was that it was not reasonable that the Tribunal did not accept the claims made by the applicant because he did not attend the hearing. The Tribunal did not make any findings about the applicant’s claim save that they were not sufficiently detailed to satisfy it as required by the Act.  As the Tribunal says at [CB60]:

   “Based on the insufficient detail he provided, the Tribunal is not satisfied that the applicant invokes protection obligations in Australia.  For instance, the applicant did not provide much, if any, detail as to why he was “fired” by the Hong Kong owner of the factory where he was formerly employed, how, why or when he may have been “labelled as people disordering the social security.”  Based on the limited evidence he provided, nor did the applicant satisfy me he may have been labelled as claimed (or at all) and/or for the reasons he claimed.”

   In my view it is perfectly reasonable for the Tribunal to come to these conclusions when the applicant does not attend.  I cannot see any jurisdictional error in this.

7. In the circumstances the application must be dismissed.  The applicant must pay the respondent’s costs which I assess in the sum of $3,000.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: