SZHGR v Minister for Immigration

[2006] FMCA 1004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHGR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1004

MIGRATION – Refugee Review Tribunal – whether applicant received invitation to attend hearing – issue raised for the first time at final hearing – leave to amend application to raise issue not granted – application dismissed.

Migration Act 1958, ss.424A, 441A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 2
SZECI v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1201
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1195
SZHFE v Minister for Immigration, Multicultural and Indigenous Affairs
(No 2) [2006] FCA 648

Applicant: SZHGR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2839 of 2005

Judgment of: Riethmuller FM

Hearing date: 11 July 2006

Date of Last Submission: 11 July 2006

Delivered at: Sydney

Delivered on: 11 July 2006

REPRESENTATION

Advocate for the Applicant: In person

Counsel for the Respondent: Mr Smith

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 5 October 2005 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2839 of 2005

SZHGR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

First Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal dated 19 August 2005.  The application was filed on

   
   

   5 October 2005 and in it the applicant claimed:

   I was born in China on 8 May 1973 and I am a Chinese citizen.  Because of the relationship with Falon Gong which is banned in China, I have been suffered a lot.  I could not live in China any more peacefully and I will be continuously persecuted if I go back to China.

2. The grounds for the application are:

   (1) I do not think DIMIA and RRT made fair decisions on my applications. 

   (2) I cannot go back to China because after I go back I will be arrested by the authorities.  Now the Chinese authorities still against the Falon Gong as before.  Now thousands of Falon Gong members still arrested.  Some of the members are detained secretly until now. 

   (3) As a Chinese citizen we don't have the rights to chose our own religion.  Falon Gong has been banned strongly in China so as a Falon Gong member I cannot go back to China. 

Background

1. The applicant is a 33 year old male citizen of the Peoples Republic of China.  He claims that if he returned to China he would be persecuted because of his reputed association with Falon Gong.  He arrived in Australia on 23 January 2005 and sought a Protection Visa on 7 March 2005. 

2. On 5 April 2005 a delegate of the Minister refused to grant a protection visa and on 11 May 2005 the applicant lodged an application for review of the decision by the Minister's delegate. 

3. On 25 July 2005 the Tribunal wrote to the applicant advising that it was unable to make a decision in his favour on the information that was before it.  This letter invited him to attend at a hearing on

   
   

   18 August 2005.  The letter was sent to a post office box at Burwood in New South Wales.  It appears from the copy in the Court Book that it was sent by registered post.  The post office box address was the one nominated by the applicant in section D of his application for review and was the same post office box address that he had nominated in question 17 of his original application.

4. I note that he gave a residential address in Berala in his original application and that an attempt by the Minister to send correspondence to that address resulted in the letter being returned to sender.  A copy of that envelope is at page 49 of the Court Book.  None of the other correspondence which was sent to the post office box was returned.

5. From the bar table today the applicant raised for the first time an issue about when he received the letter inviting him to appear at the hearing.  He said that he had given a friend's post office box as his address and that his friend had gone overseas for a month which resulted in him receiving the letter after the time of the hearing as he did not have a key to the post office box.

6. There is nothing before me to indicate that the Minister has not complied with s.441A of the Migration Act 1958. Whilst there is not formal proof of the requirements set out in s.441A(4)(a), this is because the issue was not raised until today despite earlier directions about filing material.

7. In any event, it appears that on the evidence as outlined by the applicant he does not have a case that would show that the letter was not posted in the appropriate timeframe as would be the case in the ordinary course of business.

8. In all of the circumstances I am not prepared to grant the applicant leave to amend to formally raise this issue today, particularly in light of the directions of Lloyd-Jones FM of 28 April 2006 and the lack of anything in any of his material to indicate that this was an issue prior to his oral submissions today. 

9. The Tribunal handed down its decision on 8 September 2005 setting out (at page 5) a summary of his claims:

   The Applicant claims he and his brother had a printing factory in Shenzhen, Guangdong Province. He claims his father, who was not a Falun Gong follower, knew some people who were Falun Gong followers. He claims that in February 2002, they asked his father to ask him and his brother to print some Falun Gong propaganda for them. He claims he and his brother took on the job. He claims that in September 2002, the police apprehended him and his brother, detained then for eight days and beat them. He claims his father was beaten by the police because they thought he was practicing Falun Gong when all he was doing was (legal) Qigong exercises.

   The Applicant claims his brother went to New Zealand on a false passport and took all the Falun Gong evidence with him, leaving him none. He claimed he had to save money working for another company in the PRC before he was able to afford a false passport of his own. The Applicant claims he is not Zhong Guowen, as stated in his passport, but Chen Ming. He has provided no evidence to support his claims about this identity issue.

   The Applicant names certain family members in his, protection visa application form as “Chen” but he has not provided evidence to support these identities. By contrast he has submitted a passport containing official recognition’ of his status as Zhong Guowen. The passport has been examined and stamped by airport security officials. The Applicant claims he left the PRC legally and that he had no difficulty obtaining his passport.

   Even if he did obtain a passport in a name other than his own, the Applicant has provided no evidence to support the position that he did so for the reasons claimed in his protection visa application

   The applicant’s DIMIA application includes a body of commonly-available information about Falun Gong and its banning.  The Tribunal has duly examined it.

10. The Tribunal went on to conclude that the Delegate's decision should be affirmed, saying:

    The Tribunal is not satisfied that there is sufficient consistent, factual detail in the present application satisfy that the applicant’s claims are genuine.  Having been disadvantaged, as he claims, by his brother possessing all the material he need sot argue his case, the Applicant has not taken up the offer at least to speak further about his claims.  He has not explained why he cannot have his brother send copies of the relevant material to him in Sydney.  The tribunal does not have sufficient consistent, detailed material before it to allow it to be satisfied that he has any identity other than Zhong Guowen, the identity under which he was officially permitted to depart the PRC.  The Applicant’s silence in the present matter does not help his case.

    The Tribunal is not satisfied that the applicant fears a real chance of Convention-related persecution in the PRC.  His claimed fear of such persecution is not well-founded.  He is not a refugee.

11. On 22 February 2006 the applicant filed a letter with the Court dated 17 February 2006 setting out what appears to be the main thrust of the submissions.  That letter is in the following terms:

    Dear Sir/Madam:

    My name is SZHGR and I was born on 8 May of 1973 in Guang Dong, China. I arrived in Australia on 23 Jan of 2005 and I feel extremely privileged to be able to come to Australia, which is a free and democratic society. After I arrived in Australia I was applying for protection visa to stay in Australia due to the fact that I was implicate by a particular social group called Falun Gong in China. This social group is characterised by the Chinese authorities as a counter-revolutionary organization in China and is a proscribed organization according to the Chinese legislations. The members of followers of or anyone involved with Falun Gong therefore are subject to persecution. I lodged the application to DIMIA on 7 March of 2005 and I lodged the application to Refugee Review Tribunal for review my application on May of 2005, but unfortunately I was refused by both DIMIA and RRT. I lodged the application to Federal Magistrates Court of Australia for appeal; I hope the court could give me a chance to stay in Australia for seeking the safe and peace.

    In 1996 my old brother and I franchised a printing factory named Shenzhen Xincai Printing Factory in Shenzhen City, China. I was the business manager responsible for obtaining business orders and developing business network and new customers. In Feb of 2002 we got some orders for printing some Falun Gong brochures and propaganda materials. At that time we didn’t know much about the group of Falun Gong and also we didn’t think that much, we accepted the works and continued to print various Falun Gong materials for them. Unfortunately my brother and I even my whole family suffered in the persecution from the Chinese authorities. The authority was deeply convinced that my brother and I is the practitioner of Falun Gong. From then my brother and I land us in countless suffering and persecution. Our printing factory was sealed off by the Public Security Bureau and our business licence was cancelled by the Industrial and Commercial Administrative Bureau. We were locked up at the police station and beaten by the police. Luckily my brother escaped from hospital and leaved China, applied for a protection visa in New Zealand. Now he is legally live in New Zealand, I am very happy for him could seek the protection from New Zealand Government.

    Until now the Chinese authorities and local police still harass my family, they force my old mother and father tell them where is my brother and I and compel them to say how my brother and I supported Falun Gong and how to connected with the member of Falun Gong at that time They harass our family ceaseless and make my old parents could not live normally.

    Dear case officer, I could not go back to China right now because I could not live in China as a normal person any more. I felt heart bleeding whenever I recalled those experiences, which I was suffered in. I was told by my brother, Australia is my best choice. It is a flourishing and free country where human rights are highly regarded. The society is full of sympathy and understanding as well. Australian government acts as a guard to equal rights and freedom.

    I would be truly grateful if the Australia government could protect me from persecution and allow me an opportunity to stay here safely. Because I cannot live as a normal person who has own freedman of my own life in China. I had suffered a lot mentally and physically in China. I will obey the Australian laws and respect the rights of others. I will try our best to bring benefits into Australian society and people by using my skills and abilities.

    I am so glad to be here and have a chance to write to you. I sincerely hope that the Australian government could give me some understanding and help and my application can be approve.

    Thank you very much for your time!

    Yours truly,

12. Whilst this is a polite and well written letter, it goes only to the merits of the decision by the tribunal and does not appear to identify any possible jurisdictional error or grounds for judicial review.

13. This Court does not have power to review or interfere with the findings of fact or the merits decision of the Tribunal, only to consider whether or not there has been a jurisdictional error.  There is nothing in the applicant's material that points to a jurisdictional error.

14. The final matter that I should deal with is whether or not there is any application for s.424A in light of the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. This was raised quite properly by counsel for the Minister. It appears clear that the Tribunal had nothing before it other than the decision of the delegate and the material that was on the file that was available to the delegate. As a result, the Tribunal considering the statement of the Applicant annexed to his original application would have therefore considered information within the meaning of s.424A of the Migration Act 1958. 

15. However, it does not appear to me that this information could be said to be the reason or part of the reason for affirming the delegate's decision.  Without this information the applicant would have had absolutely no case before the tribunal and the information provided at least some evidentiary basis for a case for the tribunal to consider. 

16. The reason for refusing the applicant's application was that the tribunal was not satisfied on the basis of the limited material before it.  This question has been considered in the Federal Court in SZECI v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1201 where Allsop J said:

    19 In NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119 at [52]-[56] I said the following:

    If the Refugee Review Tribunal (the Tribunal) comes to the view, apparently within the bounds of reason, that, having considered the papers, it is not satisfied that Australia owes protection obligations to an applicant such as the appellant, it is required to inform the applicant of that fact and invite him or her to a hearing to put his or her case.

    That was the position here. Such an invitation was given.
    
    The appellant did not take up that invitation.

    The Tribunal remained unsatisfied of the relevant matter to which I have referred.

    In those circumstances, unless the Tribunal somehow misdirected itself, or otherwise failed to comply with the Migration Act 1958 (Cth) (the Act) or other applicable law, ss 36 and 65 of the Act, read together, required the refusal of the visa

    20 These matters apply in this case. There is no evidence that there was any material before the Tribunal to lead it to suspect that the applicant was being in any way misled.

    21 In this case the Tribunal expressed reasons for its lack of satisfaction that Australia had protection obligations to the appellant in a way which was rational and open to it.

    22 One aspect of the Federal Magistrate’s approach to the matter which may be seen to be wrong is its reliance on NAHV. This decision of the Full Court of this Court was disapproved by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs 2005) 215 ALR 162. In SAAP it was held that any failure to comply with s 424A was a jurisdictional error.

    23 When SAAP is read with Al Shamry there is the opportunity for an argument that the use of any information given by the applicant prior to the review application may form the foundation for an obligation for communications contemplated by s 424A.

    24 However, though the Tribunal obviously made reference to material that was not put before it in the way identified by the Full Court in Al Shamry there was no breach of s 424A here. I refer to my reasons in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 and SZEZI v Minister for Immigration and Multicultural Affairs [2005] FCA 1195. I do not repeat those reasons here. The lack of satisfaction of the Tribunal was reached after considering all the information before it including documents which would be information for the purpose of s 424A. However, the reason or the part of the reason for the decision was not the information but the evaluation of it and the fact that the thought processes of the Tribunal were such that it was not able to reach a state of satisfaction of the relevant criterion (in effect, that the applicant had a well-founded fear of persecution) upon that material. It was the absence of information of any specificity or persuasive character that can be said to be the reason for the decision. In the same way as in SZEZI, it cannot be said that the information was the reason or a part of the reason. If I am wrong about this, the comments I made in SZEZI at [31] and [32] would apply here too.

17. Similarly, in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1195 his Honour said:

    29 On one view, it might be said that since the only information that was before the Tribunal about the appellant’s circumstances was information not withdrawn from the operation of s 424A(1) by s 424A(3)(b), it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF I discussed the purpose of s 424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.

18. In SZHFE v Minister for Immigration, Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 Jacobson J said:

    32 The Minister fairly raises another issue which was not addressed by the appellant. The issue is the question of whether section 424A was breached. The Minister concedes that in light of a decision of a Full Court in SZEEU v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCAFC 2 ("SZEEU"), the Federal Magistrate's finding that a protection visa application had been adopted in writing was no longer sustainable the Minister concedes that the information contained in the appellant's protection visa application was not "information" falling within the exception contained in section 424A(3)(b) of the Act.

    33 However, it seems to me to be clear that the observations of Allsop J in SZEEU at [206] and [207] are applicable. That is to say, "information" does not encompass the RRT’s subjective appraisals, thought processes or determinations nor does it encompass gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the RRT in weighing the evidence by reference to those gaps.

    34 Thus, applying the approach adopted by Allsop J at [216] of SZEEU, the RRTs reasons in the present case went to the appellant's manner of giving evidence and the vague and generalised claims which he made it was those factors which informed the RRTs decision and not the information in the protection visa application itself.

1. In the circumstances I find that whilst this issue was properly raised by counsel for the Minister, it does not provide a basis for a judicial review of the decision in this particular case.

2. As the Applicant has not established a ground for judicial review I must therefore refuse his application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:  Melissa Gangemi

Date:  8 August 2006