SZHKL v Minister for Immigration
[2006] FMCA 634
•5 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHKL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 634 |
| MIGRATION – Review of the 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.424A, 425A, 483A Migration Regulations 1994 |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 R v Hickman; Ex Parte Fox & Clinton (1945) 70 CLR 598 |
| Applicant: | SZHKL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3071 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 30 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2006 |
REPRESENTATION
| Applicant: | Applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Ms E Palmer |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The application 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 |
SYG 3071 of 2005
| SZHKL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
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 21 October 2005, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 21 November 2001 and handed down on 12 December 2001, affirming a decision of the delegate of the first respondent made on 3 November 2000, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks 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 granted the pseudonym “SZHKL”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The decision of Tribunal member Peter Thomson of reference number N00/36170, contains the following background information. The applicant, who is a citizen of the People’s Republic of China, arrived in Australia on 22 September 2000. On 9 October 2000, he lodged an application for a Protection (Class XA) visa under the Act with the Department of Immigration. On 3 November 2000, a delegate of the Minister refused to grant the applicant a Protection (Class XA) visa. On 29 November 2000, the applicant applied to the Tribunal for review of the delegate’s decision. (Court Book (“CB”) 78)
The applicant was born in 1968 into a Catholic family and claims that he had a hard childhood. He further claims that all the farm land belonged to the commune. He claims that he did not finish primary education, worked as a truck driver and became an owner driver. He enjoyed his job and married in 1992. He states that he met some Taiwanese men who were working in China illegally. Also that in 1995 the Public Security Bureau (“PSB”) investigated him for transporting smuggled goods. An incident arose during his interrogation resulting in him being beaten and detained for three months. His father paid a bribe and the applicant was released. During detention he suffered an injury to his knee, which cost him a considerable sum for treatment. (CB 81)
In 1996, the applicant was in Henan Province operating a petrol station and became involved in Falun Gong. He claims that his backyard was used for practice. The petrol station was sealed by the PSB and many members were arrested. He escaped back to Fujian, where with his father’s help he obtained a passport and escaped to Lesotho. (CB 81)
The applicant found that Lesotho was not a safe country as “the local black people always robbed people with guns”. The applicant claimed to witness the killing of his roommate when gangs jumped into his yard and tried to rob them.
In his application for review to the Tribunal, the applicant provided a statement in which he outlined his reasons for disagreeing with the delegate’s decision together with his claims. In particular, his claims addressed his involvement with the Taiwanese businessmen, practice of Falun Gong, visit to Lesotho and practice of Catholicism.
Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons was contained in the first respondent’s written submissions prepared by Ms Palmer:
9. The RRT’s decision rested on a number of matters, viz:
(a) it was unable to be satisfied of the Applicant’s claims due to their lack of detail. In particular:
(i) the RRT was not satisfied, on the information before it, that the Applicant was a member of Falun Dafa;
(ii) the Applicant was not satisfied, on the information before it, that the applicant was a Catholic;
(b) the RRT had “real concerns” that the Applicant’s involvement with the illegal Taiwanese businessmen would not have been lawful in spite of the Applicant’s claim to the contrary;
(c) it was not satisfied that the Applicant was detained for three months, nor that any detention was part of an investigation into his trading activities;
(d) police brutality is common in China;
(e) the Applicant was able to obtain his passport legally;
(f) whilst the Applicant claimed he would submit further copies of his documentation within a month of his application, the Applicant did not provide any further details in the year that followed; and
(g) it was not required to consider the Applicant’s claims in respect of Lesotho because the Applicant is a citizen of China and does not face return to Lesotho.
Application for review of the tribunal’s decision
On 21 October 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following grounds:
A.I am a citizen of China who claim to have a well founded fear of persecution for reason of my religious beliefs under the Refugee Convention as amended by the Refugee protocol.
B.The Tribunal was error of law those finding were to open its from my side fact and evidence.
C.The Tribunal faild to consideration the Applicant case without the Applicant provide the evidence to the Tribunal and the Applicant to attend the hearing. The Tribunal make a such statement with conclusion decision without any reasonable and foundation in evidence. (copied without alteration or correction)
Reasons
The applicant appears as a self-represented litigant with the aid of a Mandarin interpreter. He attended first directions on 23 November 2005, and indicated that he wished to participate in the Court’s free Legal Advice Scheme. He was subsequently allocated a panel lawyer. The panel lawyer met with the applicant at Villawood Detention Centre with a Mandarin interpreter present. On the first directions date, the applicant was also granted leave to file an amended application by
28 February 2006, together with any affidavit material in support of his application. He has not filed an amended application, any evidence or written submissions as at the time of this hearing.
When the applicant was invited to make oral submissions at the Court’s final hearing in support of his application, he declined to do so. I appreciate the practical difficulties in which a person in the position of the applicant is confronted. He is in a strange country whose language he cannot speak and whose legal system he cannot understand. Nonetheless, the limited assistance that is available to applicants in his position has been provided to him.
The Tribunal decision sets out the circumstances in which the applicant was invited to a Tribunal hearing but failed to attend. The Tribunal describes the circumstances under the section ‘Claims and Evidence’ as follows (CB 80 to 81):
On 29 January 2001 the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on Monday, 16 April 2001. On 13 February 2001 the applicant advised the Tribunal that he wanted to give oral evidence. On 14 February 2001 the Tribunal rescheduled the hearing until 23 April 2001 and wrote to the applicant on the same address that he had just confirmed as his address when accepting the offer of hearing. That letter was returned to sender. The Tribunal attempted to contact the applicant by phone but the number was disconnected. However the applicant did not attend the rescheduled hearing or contact the Tribunal to explain his failure to attend. He has not rung the Tribunal even though he knew that a hearing was being scheduled. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
In the first respondent’s written submissions, Ms Palmer submits, and I accept the submission that the Tribunal complied with its obligations under s.425A of the Act in inviting the applicant to attend its hearing. Both the initial invitation dated 29 January 2001 and the second invitation dated 14 February 2001 complied with the address of notice requirements under the Act and Migration Regulations 1994. Further, the fact that the applicant returned the response to hearing invitation on the first occasion, indicated that he had received the invitation letter at one of the two addresses to which the invitation was sent. However, the Tribunal was not required to send the invitation to both addresses. The Tribunal was only required to send the invitation to the applicant’s address of service provided on his application. Ms Palmer submits that the fact that the Tribunal did not send the second invitation to the residential address was not a breach of s.425A.
The hearing information form records that the applicant failed to appear at the scheduled hearing on Monday 23 April 2001. (CB71) The Tribunal elected to proceed with a determination as it was permitted to do so. It is submitted that the Tribunal considered all the applicant’s claims and was not satisfied on the basis of the material before it that the applicant had a well-founded fear of persecution. That finding was open to the Tribunal as sole arbiter of the facts.
I believe it necessary to consider the recent decisions of SAAP v Minister for Immigration and SZEEU v Minister for Immigration [2006] FCAFC 2, which have an impact on this decision. The Tribunal did indicate that it had some concerns about the claims by the applicant that he was a Falun Gong practitioner and a Christian. However, it was unable to ask him further questions in respect of his involvement and adherence to those philosophies, as the applicant did not appear at the hearing. In particular, it indicated it wished to question the applicant about his involvement with both Falun Gong and being a Christian since arriving in Australia. The Tribunal indicated that it could not in the absence of the applicant take these issues further, and did not make any factual finding about these concerns. Ms Palmer submits that the applicant’s statement attached to the Tribunal application for review repeated all of his claims made in his original application and did not require the Tribunal to supply the applicant with the material considered in his original claim: NAZY v Minister for Immigration [2005] FCA 744 (approved by the Full Federal Court in SZEEU v Minister for Immigration). The applicant indicated he was able to leave the PRC safely in his statement annexed to his Tribunal application for review. (CB 52) In so far as the Tribunal made references to the applicant’s ability to apply for and attain a passport, it did not make any express finding that this meant that he was not wanted by the authorities.
In the recent decision of SZEGX v Minister for Immigration [2006] FCA 166, His Honour Moore J addressed what constitutes information that should be supplied to the applicant under s.424A of the Act. If the Tribunal simply states that it has not reached a reasonable level of satisfaction that the applicant has a well-founded fear of persecution, this is not necessarily a reference to information in the s.424A sense. In coming to its conclusion that the reasonable level of satisfaction was not met, save any reference to any material, the Tribunal was not obliged to engage s.424A of the Act. In SZEGX v Minister for Immigration His Honour Moore J referred to the decision of SZECF v Minister for Immigration [2005] FCA 1200 at [29] per Allsop J:
However, the apparent approval of the judgment of Branson J in NAIH of 2002 at [28] takes the matter one step further. Her Honour was "inclined to doubt" that any inconsistency in an original statement with evidence to the Tribunal necessarily required the engagement of s 424A. That can be accepted. It is only information that is a part of the reason for the decision that engages the section. If, as here, the very form and content of a statement (including what was not said) is central to the rejection of virtually all the evidence of the appellant, I do not see anything her Honour said as necessarily inconsistent with an application of s 424A. Her Honor did not say, nor did the Full Court in WAGP, that an earlier statement of an applicant could not be information.
I believe the reasons of the Tribunal are not contrary to the principles established in SAAP v Minister for Immigration or SZEEU v Minister for Immigration.
The applicant relied upon a three page statement attached to the Tribunal application for review. (CB 51 to 53) The applicant was invited to appear before the Tribunal to provide additional information, and if he wished, to bring witnesses to support his claim. The Tribunal in its letter to the applicant of 29 January 2001, indicated that it had considered all the material relating to his application, which in effect was limited to the three page statement by the applicant. It was not prepared to make a favourable decision on that information alone. The invitation was extended to attend the hearing to give oral evidence and present arguments in support of his claim. The Tribunal stated that it was not satisfied that there was sufficient information available to it to form a view as to whether the applicant had been persecuted in the past or was likely to be persecuted in the future. The level of satisfaction to make such finding was not reached.
Ms Palmer submits that there was no error in the Tribunal’s decision not to assess the applicant’s claim in respect of Lesotho, nor was the Tribunal required to put to the applicant that he was not a national of Lesotho. The applicant stated in his application for review to the Tribunal that his country of birth was the PRC and his nationality/citizenship Chinese. The Tribunal assessed his claim on that basis.
Ms Palmer submits that the applicant has not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise, or exceeded, its jurisdiction or that it had breached any of the Hickman provisions. (R v Hickman; Ex Parte Fox & Clinton (1945) 70 CLR 598)
Conclusion
As the applicant is not represented, this Court is obliged to independently consider whether any argument based on the material can be made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Ms Palmer, appearing for the respondents, assisted the Court with written submissions supplemented by oral submissions. Unfortunately, the applicant is unrepresented and made no submissions to the Court himself.
To fulfil my obligations, I have considered all the material contained in the Court Book and the Tribunal decision. I am satisfied that none of the grounds pleaded in the application raise any jurisdictional error and none of those arguments can be sustained. Neither is it apparent that any other ground of review exists which suggests that the Tribunal made a jurisdictional error in its decision to reject the applicant’s application for review. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 4 May 2006
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