SZHMB v Minister for Immigration
[2007] FMCA 291
•28 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHMB v MINISTER FOR IMMIGRATION | [2007] FMCA 291 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration & Multicultural & Indigenous Affairs v VASF [2005] FCAFC 73 SZCIA v Minister for Immigration & Multicultural Affairs [2006] FCA 238 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZHMB |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | SYG3137 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 28 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The name of the respondent be changed to ‘Minister for Immigration and Citizenship’.
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3137 of 2005
| SZHMB |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 27 September 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The background to this application is that the applicant lodged an application for a protection visa in January 2005 claiming to fear persecution for reasons of her adherence to the practice of Falun Gong in the People’s Republic of China. The application was refused and the applicant lodged an application for review with the Tribunal on 11 May 2005. In that application for review she provided a residential address in Australia and in response to the question as to where she wanted the Tribunal to send correspondence about her application she ticked the box marked ‘My Mailing Address, (Address for Service)’, and proved an address in Pitt Street, Sydney. She did not nominate an authorised recipient. Nor did she provide any telephone or facsimile contact numbers.
The Tribunal wrote to the applicant at her Pitt Street mailing address by letter of 12 May 2005 acknowledging receipt of the application and informing her that she would be invited to a hearing at a later date. She was invited her to send any documents or other evidence she wanted the Tribunal to consider.
The Tribunal wrote again to the applicant at the Pitt Street address nominated in the review application by letter of 26 July 2005 inviting her to attend a hearing on 5 September 2005 at the time and place specified. The letter advised that if the applicant did not attend the hearing and the Tribunal did not postpone it, it could make a decision on the case without further notice.
The Tribunal again wrote to the applicant at the Pitt Street address by letter of 7 September 2005 advising her that it had made a decision and the decision would be handed down on 27 September 2005. Finally it wrote again on 27 September 2005 to that same Pitt Street address enclosing a copy of the Tribunal’s decision and reasons.
In its reasons for decision the Tribunal recorded that it had written to the applicant on 26 July 2005 inviting her to a hearing and that no response had been received to that letter, that it had not been returned unclaimed to the Tribunal and that the departmental records showed no record of the applicant departing Australia.
The Tribunal recorded that it had checked and confirmed the address to which the letter had been sent was the most recent address provided by the applicant and observed that as she had no authorised recipient or migration agent and had provided no telephone number on which she could be contacted directly the Tribunal was unable to make any further inquiries.
It also recorded that the applicant did not appear before the Tribunal on the day at the time and place at which she was scheduled to appear for the Tribunal hearing. In those circumstances, pursuant to section 426A of the Migration Act 1958 (Cth) the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal summarised the applicant’s claims made in connection with the protection visa application as a claim that she feared persecution because of a political opinion imputed or arising from the fact that she had been a practitioner of Falun Gong. She claimed she had been interviewed by the police and ordered to stop practising Falun Gong, beaten at the police station and warned that she would be arrested and sentenced if she continued to be a member of Falun Gong. The Tribunal noted that the applicant had not stated when these events occurred.
In the Findings and Reasons part of its decision the Tribunal accepted that the applicant was a national of the People’s Republic of China but found that the information that she had provided about her reasons for leaving China was very vague and that apart from her assertions she had submitted no evidence that she had ever been a Falun Gong practitioner. It noted that she had not stated when she came into contact with police officers. The Tribunal found that it was unable to establish when in the six years since Falun Gong had been banned the authorities might have caused the applicant any difficulties and thus could not establish the circumstances in which she was living most recently in China.
The Tribunal found that it was unable to establish the relevant facts. It was not satisfied on the evidence before it that the applicant had a well‑founded fear of persecution within the meaning of the Convention.
The applicant sought review by application filed in this Court on 27 October 2005. She relies on an amended application filed on 5 January 2006. The amended application contains a recital of the applicant’s claims in relation to membership of Falun Gong and the basis for her claimed fear of persecution. As acknowledged in written submissions for the respondent such a recital of facts may, if accepted, support the applicant’s claims to be a refugee but it does not identify any jurisdictional error in the Tribunal decision.
As contended for by the first respondent it is clear that the Tribunal decision turned on its inability to be satisfied on the material before it of any of the facts relevant to whether the applicant met the requirements of the Refugees Convention and the factual matters that the applicant claimed had occurred, other than the applicant’s nationality.
There is no error in the Tribunal not making any findings of fact in circumstances where underlying the requirement that it be satisfied that the criteria for the visa are met is the establishment of the necessary facts on which such criteria can be established: see MIMIA v VASF [2005] FCAFC 73, SJSB v MIMIA [2004] FCAFC 225 and MIMIA v Lay Lat (2006) 151 FCR 214.
The applicant failed because the Tribunal was unable to be satisfied that she met the criteria for the grant of a visa on the limited information she had provided. In those circumstances section 424A has no application. There is no information within subsection (1) that would be the reason or part of the reason for the Tribunal decision. The Tribunal’s thought processes and assessment of the claims made by the applicant are not matters that are subject to the s.424A(1) obligation see: See SZCIA v MIMA [2006] FCA 238.
While no grounds of judicial review are raised in the amended application, in oral submissions the applicant told the Court that she did not receive notice of the Tribunal hearing. She said that she had no idea why this might be so but sought another opportunity to provide further evidence to support her application. However there is nothing in the material before the Court to establish that the Tribunal failed to comply with its obligations under the Migration Act in relation to the invitation to the Tribunal hearing or otherwise.
As indicated, in the application for review the applicant provided a mailing address in Pitt Street as her address for service and the address where she wanted correspondence about her application to be sent. The Tribunal wrote to the applicant at that address on a number of occasions, in particular addressing the hearing invitation of 26 July 2005 to that address.
It recorded in its reasons for decision the absence of a response to that invitation and the fact that the applicant did not appear at the hearing and also recorded the difficulties that it faced, given the absence of other contact details such as a telephone number and the lack of migration agent.
In those circumstances the Tribunal decided pursuant to s.426A of the Act to make its decision on the review without taking any further action to allow or enable the applicant to appear before it. The applicant has not established any failure by the Tribunal to comply with its obligations to invite her to a hearing or with any of the provisions of the Migration Act.
Based on the material before the Court the Tribunal properly considered whether to exercise its discretion to give the applicant a further opportunity to appear before it. The decision it made to proceed under s.426A was open to the Tribunal.
No procedural error in the process of review has been established. Nor, as indicated, is there any error of law established in the Tribunal reasons for decision. As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 13 March 2007
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