SZHIE v Minister for Immigration - [2007] FMCA 744

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHIE v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 744

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – credibility – whether RRT breached obligations under s.424A – Tribunal exercised discretion under s.426A.

Federal Magistrates Court Rules 2001 sch.1 pt.1
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65; 424A(1); 424A(2); 441A(3); 425; 425(1); 425A; 426A; 441A;474; pt.8 div.2

SZEEU v MIMIA (2006) 150 FCR 214
Tin v MIMIA (2006) 150 FCA 1109
Singh v MIMIA [2001] FCA 1679

Applicant:

SZHIE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2929 of 2005

Judgment of:

Emmett FM

Hearing date:

13 March 2007

Date of last submission:

13 March 2007

Delivered at:

Sydney

Delivered on:

13 March 2007

REPRESENTATION

Applicant representing himself

Counsel for the Respondent:

Mr M. Cleary

Solicitors for the Respondent:

Ms A. Mansour, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2929 of 2005

SZHIE

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 pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 June 2005 and handed down on 12 July 2005.
The applicant claims to be from the People's Republic of China (“the PRC”) and a Falun Gong practitioner. The applicant arrived in Australia on 12 December 2004 having legally departed from the PRC on a passport issued in his own name and a business visa issued on 25 November 2004.
On 20 January 2005 the applicant lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).
In a statement lodged in support of his application for a protection visa the applicant claimed that in 1995 he commenced the practice of Falun Dafa and that he was selected as a vice-director of that practice in his town group in March 1996. The applicant claimed in the statement that after Falun Gong was outlawed in 1999 he was prohibited from organising Falun Dafa practice and his home was searched and books and video tapes were confiscated. The applicant claimed that he was warned that his business would be closed if he continued to practise Falun Dafa.
The applicant said thereafter he organised to practise Falun Dafa secretly and organised the presentation of a petition in support of Falun Dafa. The applicant claimed that as a result of his activities he was detained on 15 August 2001 and mistreated whilst in detention.
The applicant stated that on 31 August 2001 he was released on condition that his family provide written guarantee that they would stop the applicant practising Falun Dafa or organising any petitions. Thereafter the applicant claimed that he was watched and his home and telephone monitored. The applicant then sought to obtain a visa to enter Australia.
On 7 March 2005 a delegate of the first respondent (“the Delegate”) refused the applicant 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 Refugee Protocol (“the Convention”).
On 6 April 2005 the applicant lodged an application for review of the Delegate's decision by the Tribunal. The applicant did not provide any further material in support of that application.
The applicant provided a mailing address for correspondence and in answer to the question in section C:
“Do you have an adviser you authorise to act for you in relation to this application?”
The applicant answered “No”.
On 6 April 2005 the Tribunal wrote to the applicant confirming receipt of his application and inviting the applicant to send any further documents or information or other evidence that he wished the Tribunal to consider. Nothing further was sent by the applicant in response to that letter.
On 23 May 2005 the Tribunal wrote to the applicant at his identified mailing address informing him 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 invited the applicant to come to a hearing on 22 June 2005, time and place. The letter also informed the applicant that the Tribunal would only change the hearing date for good reason and that if the applicant thought he may be unable to attend the hearing he should contact the Tribunal immediately because if he did not attend the hearing, and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice. The letter invited the applicant to send any documents or written arguments that he wished the Tribunal to consider. The letter enclosed a response to hearing invitation form that it requested the applicant to return and complete by 8 June 2005.
The response to hearing form was not returned to the Tribunal nor was any other document received from the applicant in response to that letter.
In its decision the Tribunal noted its letter dated 23 May 2005 and the terms of that letter. The Tribunal noted that no response had been received from the applicant as at 22 June 2005. The Tribunal noted that the applicant did not appear before it on the day, time and place at which he was scheduled to appear. Accordingly, pursuant to s.426A of the Act, the Tribunal purported to exercise its discretion to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal summarised the claims in the Applicant’s statement in support of his protection visa application as including a claim of having been detained for just over two weeks in August 2001 and having been mistreated whilst in detention. The Tribunal noted the applicant's claim that after his release, local police monitored his activities and phone calls and that after coming to Australia he joined Falun Dafa in Australia.
The Tribunal noted that the applicant claimed to have been a practitioner of Falun Dafa in the PRC since 1995.
However the Tribunal found that the applicant had provided little information that indicated he had any knowledge of the practice and philosophy of Falun Dafa. In particular, the Tribunal found that the applicant did not provide anything to indicate any knowledge of the history of Falun Dafa and that the information he did provide about Falun Dafa was information easily obtained from publicly available sources.
The Tribunal was not satisfied that the applicant was ever a practitioner of Falun Dafa based on his bare assertions alone and, given the relative lack of detail in his claim, the Tribunal concluded that it was not satisfied that the applicant is now or ever was a practitioner of Falun Dafa.
Because the Tribunal was not satisfied that the applicant was a Falun Dafa practitioner, it was not satisfied the PRC authorities detained him and mistreated him and monitored his activities and phone calls as claimed. The Tribunal did not accept that police would seek to arrest him if he were to return to the PRC nor that he would face any mistreatment on his return because of any alleged association with Falun Dafa.
The Tribunal concluded that it was not satisfied, having considered the evidence as a whole, that the applicant is a person to whom Australia has protection obligations and therefore affirmed the decision under review.
The applicant is unrepresented before this Court this afternoon, although has the assistance of an interpreter. I note that the applicant did participate in the panel advice scheme. The applicant brought none of his documents to Court this afternoon saying that he had relied on his migration agent in respect of any documents filed and that he had provided his material to that migration agent.
The applicant confirmed that this was the same migration agent whom he said was his migration agent before the Tribunal. I informed the applicant that there was no migration agent identified on his review application and there was no appearance filed on his behalf in respect of any legal representative in the proceeding before this Court. The Court provided the Applicant with copies of his initiating application filed 12 October 2005 and his amended application filed 22 December 2005. The applicant confirmed that it was the amended application upon which he relied. The grounds of that amended application were interpreted for the assistance of the applicant; however, he had no submission to make in support of any of the grounds.
Ground one appears to be a complaint by the applicant that he was unaware of the invitation sent to him in the Tribunal's letter dated 23 May 2005 and that the Tribunal made no attempt to contact him despite having his contact telephone number. Ground one appears to allege that, in those circumstances, the Tribunal breached its obligations under s.425(1) of the Act.
To the extent that the applicant complains that the Tribunal made no attempt to contact him regarding the hearing, such complaint is misconceived. There is no obligation on the Tribunal to make contact with the applicant.
The obligations of the Tribunal are set out in the statutory scheme in s.425 and 425A of the Act. Section 425 of the Act requires the Tribunal to invite an applicant to come to a hearing. Section 425A of the Act sets out the method by which the Tribunal is to issue that invitation. Section 425A(1) requires that the invitation give the applicant notice of the day on which and the time and place at which the applicant is scheduled to appear. Section 424A(2) of the Act sets out how the notice is to be given to the applicant.
Relevantly, s.441A of the Act states that the Tribunal must despatch an invitation sent by pre-paid post or by other prepaid means within three working days of the date of the document to the last address for service provided to the Tribunal by the recipient in connection with the review. The first respondent tendered a business record of the Tribunal, being the business record of the Refugee Review Tribunal registered post records. That document discloses that on 23 May 2005 a letter was sent to the applicant with the registered post number RP21887056. The name and address is that of the applicant and his mailing address is as identified in the application for review.
The bundle of relevant documents in the Court book was marked exhibit 1R. In exhibit 1R is a copy of a letter dated 23 May 2005 in which is reproduced the numbers in handwriting, RP21887056.
In the circumstances, I am satisfied that the letter dated 23 May 2005 from the Tribunal to the applicant was sent in accordance with the legislative scheme to the applicant at his address for service.
Section 424A(3) of the Act requires that the period of notice be at least the prescribed period; that being 14 days. Plainly the letter dated 23 May 2005 inviting the applicant to attend a hearing on 22 June 2005 complies with the prescribed period. Section 426A of the Act provides that where an applicant is invited under s.425 to appear before the Tribunal and does not appear on the day on which or at the time and place at which the applicant is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
It is clear from the Tribunal's decision that the Tribunal had regard to the invitation sent to the applicant and that the invitation was in compliance with the legislative regime.
In the circumstances, the Tribunal was entitled to exercise its discretion as it did pursuant to s.426A of the Act to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it. The fact that the applicant was unaware of the invitation is not an error on the part of the Tribunal.
Accordingly, ground one is not made out.
Ground two appears to be a complaint that the Tribunal failed to invite the applicant to provide information to it about the applicant's Falun Dafa practice, philosophy and knowledge of the history of Falun Dafa where the absence of that information was the reason for the Tribunal affirming the decision under review and that a failure to do so was a breach of s.424A(1) of the Act.
Such an allegation is misconceived to the extent that the lack of detail upon which the Tribunal relied in affirming the decision under review was information provided by the applicant to the Tribunal for the purposes of its review and is therefore excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act (SZEEU v MIMIA (2006) 150 FCR 214 at [18] and [206]; Tin v MIMIA (2006) 150 FCA 1109; Singh v MIMIA [2001] FCA 1679 at [25]).
A fair reading of the Tribunal decision makes it clear that the reason that the applicant was not satisfied that the applicant had a well-founded fear of persecution for a Convention related reason was because of the lack of detail in his claims. That is a finding that was open to the Tribunal on the material before it. The conclusion of the Tribunal, in not being satisfied that the applicant met the criteria required for being a refugee, was a conclusion open to the Tribunal on the material before it.
Whilst the Tribunal does refer to the applicant's passport, it is clear that the reason for affirming the decision under review was the lack of detail beyond the applicant's bare assertions of his claim that caused the Tribunal not to be satisfied that he met the criteria for being a refugee. In those circumstances, s.65 of the Act mandates that a decision maker, in this case the Tribunal, must refuse the applicant a protection visa.
The Tribunal otherwise complied with its statutory obligations in the making of its decision, including the conduct of its review.
The Tribunal's decision 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 interfere and the proceeding before this Court is dismissed.

RECORDED : NOT TRANSCRIBED

The first respondent seeks costs fixed in an amount of $4,900. I note that such sum is less than the amount provided in sch.1 pt.1 of the costs attached to this Court by the Federal Magistrates Court Rules 2001. I note that counsel was briefed in the matter and I regard that as entirely appropriate and that the reasonable costs of counsel should form part of the costs order. In the circumstances, I am satisfied that the amount sought is reasonable and I order that the applicant pay the costs of the first respondent fixed in the amount of $4,900.

RECORDED : NOT TRANSCRIBED

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 21 May 2007