SZHMC v Minister for Immigration
[2007] FMCA 321
•5 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHMC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 321 |
| MIGRATION – Review of decision of RRT – where applicant raises many issues concerning the Tribunal’s decision but did not attend a hearing. |
| Migration Act 1958, s.424A |
| SZEZI v Minister for Immigration [2005] FCA 1195 |
| Applicant: | SZHMC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3138 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 March 2007 |
| Date of last submission: | 5 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2007 |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
The name of the first respondent be changed to Minister for Immigration and Citizenship.
Applicant to pay the first respondent’s costs assessed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3138 of 2005
| SZHMC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 8 March 2005. On 5 April 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 6 May 2005 a delegate of the Minister refused to grant a protection visa and on 31 May 2005 the applicant applied for review of that decision. On 9 August 2005 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his claim but was unable to make a decision in his favour on that information alone. It offered him the opportunity to come to a hearing on 19 September 2005. The applicant did not attend the hearing and on 19 September 2005 the Tribunal determined to affirm the decision under review. It handed that decision down on 6 October 2005.
The grounds upon which the applicant claimed the protection of Australia are contained in a short statement found at [CB 19] as part of his protection visa application. He tells how his health was not very good when he was introduced to Christianity by his uncle. He became a Christian in 1993 and spent every Sunday with his uncle and other members praying and discussing Christianity. This improved his health but was the cause of him experiencing persecution from the Chinese authorities. In May 2003 the police came to his uncle’s house and arrested him. His uncle is still in gaol. The church was required to go underground. He heard that all members of the church were on a departmental blacklist and police were keeping eyes upon them. In November 2003 the police took him away from home and questioned him for 16 hours about his religious activities. A large amount of money was spent trying to get him out of China and he is unable to return.
The Tribunal noted most of the facts recited above and the fact that it had invited the applicant to a hearing which he had not attended before stating at [CB 52]:
“In this case the applicant has provided no evidence whatsoever to support his assertions that he is a Christian and that he has suffered persecution or may face persecution in the event he returns to China. Moreover, the brief unsigned and undated statement attached to his application form contains nothing, beyond a reference to the applicant’s belief in God, a statement that the applicant spent Sundays praying, studying the Bible, discussing Christianity and learning “theory” to indicate the applicant has any understanding of the Christian religion. He made no reference to any Christian belief beyond a belief in God. Such a belief is common to all major religions.
The applicant’s statement is so vague about the matter of religion, that the Tribunal was not prepared to accept it, without more, as the basis for satisfaction that the applicant was truly a Christian. That was why the Tribunal invited the applicant to a hearing to give him the opportunity to satisfy the Tribunal as to his religious convictions. The Tribunal’s letter of invitation placed the applicant on notice but it was unable to make a favourable decision on the basis of the evidence before it.”
The Tribunal then indicated that on the basis of the evidence before it it could not be satisfied of the matters raised by the applicant and therefore it could not be satisfied that he was a person to whom Australia owed protection obligations.
In his application filed in this Court on 26 January 2006 the applicant claims that the Tribunal was biased. An allegation of bias is a very serious one that must be specifically made and clearly particularised. This the applicant has not done. The applicant then goes on to suggest that the Tribunal did not go through the correct jurisdictional steps when considering his application. The applicant suggests the Tribunal did not believe that he was a genuine Christian without persuasive evidence. In all probability the applicant is right. The Tribunal is required to be satisfied that the applicant was a Christian before going on to consider whether or not the holding of that belief placed him in a position whereby he was being persecuted or was likely to be persecuted upon his return to China. The Tribunal offered the applicant an opportunity to satisfy it of those matters but he did not take it up.
The applicant then argued that the Tribunal failed to assess his chances of persecution upon his return to China based upon his illegal religious practises. As the Tribunal was unable to be satisfied that the applicant was a Christian it did not have to consider these matters. There is then another reference to bias, a statement that the Tribunal was wrong to say that he was not a refugee and that the Tribunal could not understand the full meaning of his application. Had the applicant attended the hearing he could have taken these matters up with the Tribunal and fully explained to it the nature of his claim. He did not do so.
Before me today the applicant read out a statement that had been prepared in Mandarin and which was helpfully translated for the benefit of the court. The statement repeated the allegations of bias with which I have already dealt and then made a number of references to s.424A of the Migration Act 1958 (the “Act”). I am not entirely clear what the information was that the applicant said that the Tribunal had failed to give him notice of but it seems to me that the quotation from Allsop Js decision in SZEZI v Minister for Immigration [2005] FCA 1195 at [29] referred to me by Ms Nesbitt is apt. His Honour said:
“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 s424A(1) by s424A(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 discuss the purpose of s424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an “unbundling” is necessary in order, sensibly to apply s424A 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 the 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.”
The applicant also asserted that he did not have a chance to respond to the reasons of the Tribunal. Unfortunately, these matters are not a game of ping pong in which every intimation of a decision is entitled to be referred to an applicant for his response. The applicant was given a chance to appear before the Tribunal and he did not take it. That was his only chance conformably with the Act. The applicant said he was not allowed a chance to argue before the Tribunal. If he was suggesting that he did not receive the hearing invitation this is the first time that that has been raised. I note, without surprise, that the address given by the applicant for receipt of information from the Tribunal was an address in Pitt Street some considerable distance from his home in Canley Vale. But that was the applicant’s choice not that of the Tribunal. If he did not go and collect his mail then he has only himself to blame. It cannot be said that mail sent to him at that address did not reach him because the Tribunal’s decision was sent to him at that address and he is here, presumably because he received it.
I have considered the Tribunal’s reasons in detail and listened to the applicant. I regret I am unable to find any grounds upon which I could hold that the Tribunal fell into jurisdictional error in the manner in which it came to its decision in this case. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $3,000.00.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
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