SZHMF v Minister for Immigration
[2007] FMCA 273
•5 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHMF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 273 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether the Refugee Review Tribunal decision is affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65; 424A(1); 424A(3)(b); 426A; 474; pt.8 div.2 Federal Magistrates Court Rules 2001, sch.1 |
| Minister of Ethnic Affairs v Guo Wei Rong & Anor (1997) 191 CLR 559 Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 |
| Applicant: | SZHMF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3157 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 5 March 2007 |
| Date of last submission: | 5 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Ms K. Morgan |
| Solicitors for the Respondent: | Ms A. Mansour, Clayton Utz Lawyers |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3157 of 2005
| SZHMF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Background
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 20 September 2005 and handed down on 11 October 2005.
The applicant arrived in Australia on 8 January 2005, having legally departed from China on a passport issued in his own name and a subclass 456 visa issued on 22 December 2004.
On 17 February 2005, the applicant lodged an application for a protection class XA visa with the Department. In his application the applicant claimed to fear persecution by the Chinese authorities by reason of his membership of Falun Gong and his practice of Falun Gong.
In a statement lodged in support of his protection visa application, the applicant claimed that he became a Falun Gong member in 1998 and that he actively promoted Falun Gong after the Chinese authorities announced that Falun Gong was an illegal organisation in 1999. The applicant claimed to have organised Falun Gong practitioners and promoted Falun Gong to people in his area. The applicant claimed that, in January 2004, when he was practising Falun Gong with a group, police came and arrested some members, although the applicant was fortunate to leave prior to the arrest.
The applicant claimed that some of those arrested were tormented both physically and mentally, as a result of which, the applicant’s details were disclosed to the authorities. The applicant claimed that four days later he was detained for five days by police for interrogation, as a result of which, he suffered both mentally and physically. The applicant claimed that, after his release, he was assisted by a friend to come to Australia.
On 22 March 2005, a Delegate of the first respondent refused the applicant’s application for 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 Refugees Protocol.
The Tribunal review
On 26 April 2005, the applicant lodged an application for review of the Delegate’s decision with the Tribunal. The applicant identified a residential address in Australia in his review application and a mailing address. In answer to the question in Section C in the application for review, “Do you have an adviser you authorise to act for you in relation to this application?”, the applicant marked the box “no”.
On 27 April 2005, the Tribunal wrote to the applicant, confirming that it had received his application, and inviting the applicant to send any documents, information or other evidence that the applicant wished the Tribunal to consider. The letter also informed the applicant that he should tell the Tribunal immediately upon any change of his home address or mailing address. There was no further information provided by the applicant in response to the Tribunal’s letter of 27 April 2005.
On 19 July 2005, the Tribunal wrote to the applicant informing the applicant 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 Tribunal’s letter of 19 July 2005 invited the applicant to come to a hearing on a specified date, 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 went on to invite the applicant to send any new documents or written arguments that he wished the Tribunal to consider. Nothing was received by the Tribunal from the applicant by way of new material in response to that letter.
However, on 27 July 2005, the Tribunal received from the applicant the response to hearing form, indicating that the applicant did wish to attend the hearing and that he requested a Mandarin interpreter.
In its decision, the Tribunal noted its correspondence with the applicant, particularly, the letter dated 19 July 2005 and the applicant’s response to that letter, dated 27 July 2005, indicating that the applicant wished to attend a hearing and give oral evidence. The Tribunal noted that the applicant did not attend the hearing, nor did the applicant contact the Tribunal to explain his failure to attend. The Tribunal then exercised the discretion open to it under s.426A of the Act to proceed to make its decision on review without taking any further action to enable the applicant to appear before it.
There is no issue raised by the applicant before the Court this afternoon that the Tribunal’s decision to proceed to make its decision on the review without taking any further action was a decision made other than in accordance with the law. The applicant in his amended application makes it clear that he was aware of the hearing, however, chose not to attend “because I worried about the spies from the Chinese authorities”. That is not an explanation of which the Tribunal was aware and is not capable of establishing error on the part of the Tribunal going to jurisdiction. In the circumstances, the Tribunal was entitled to proceed to make its decision on the review before it.
The Tribunal noted that it had before it the applicant’s protection visa application and it identified with some specificity the claims made by the applicant in his protection visa application. The Tribunal noted that there was no evidence provided by the applicant to support his claims and that he had provided very little detail of the circumstances of the persecution that he alleged. The Tribunal identified particular difficulties that it had with the lack of information before it and identified matters it may have sought to explore with the applicant at a hearing.
Ultimately, the Tribunal concluded that it was not satisfied that the applicant was a practitioner of Falun Gong or that he had suffered serious harm from the authorities for that reason, or for other reason. The Tribunal was not satisfied, in those circumstances, that there was a real chance the applicant would be persecuted by reason of membership of Falun Gong, or for any other reason, if he were to return to China in the foreseeable future, because it was not satisfied he was a Falun Gong practitioner. The Tribunal concluded that it was not satisfied the applicant is a person to whom Australia has protection obligations and therefore affirmed the decision under review.
The proceeding before this Court
The applicant was unrepresented before the Court this afternoon, although had the assistance of an interpreter. The applicant confirmed that he relied on an amended application filed on 21 December 2005:
“The grounds of the application:
1. The Tribunal believed that I provided very little detal(sic) of the circumstances of the persecution which I claimed. I claimed that I was detained by the police in January 2004 for 5 days, However the officer expected the above-mentioned should have made me change my residence or my place of work, when I did nto (sic) claim so the officer could not accept my claims. I believe that the Tribunal officer does not know China very well. He made the above-mentioned conclusion based on the wrong information and concept. It would have to be the case.
2. The Tribunal failed to assess the chance of my persecution on my return to China because the Tribunal believe that anyone who could get their passports on their own names would not face any persecution on their return to China, which is wrong.
3. The Tribunal could not provide any evidence or materials to justify the making of its decision to refuse my application.
4. The Tribunal did not observe Migration Act 1958 properly in considering my application for a protection visa.
5. The Tribunal did not provide evidence to support its decision and did not notify me in writing about the possible reasons why the Tribunal would refuse my application
6. I did not attend the hearing invited because I worried about the spies from the Chinese authorities, from the 610 office, therefore, I would rather communicate with RRT in writing, but RRT did not notify the reasons why it would refuse my application in writing, so I lost the chance to explain these doubts in writing.”
Each of the paragraphs of that document was interpreted for the applicant and he was invited to make submissions in respect of each paragraph.
The applicant made no meaningful submission in respect of any ground.
Paragraph 1 is essentially a disagreement with the conclusions reached by the Tribunal and the Tribunal’s failure to accept the assertions of the applicant. However, the Tribunal is not required to accept uncritically any and all of the allegations made by an applicant. In referring to this principle, the Tribunal referred to the authorities of, Minister of Ethnic Affairs v Guo Wei Rong & Anor (1997) 191 CLR 559 at 596; Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170.
In the circumstances, there is no error demonstrated by paragraph 1 of the applicant’s amended application.
Paragraph 2 of the applicant’s amended application complains that the Tribunal failed to assess the chance of the applicant’s persecution because it believed that anyone who could get passports in their own names would not face persecution on their return to China. The Tribunal stated that:
“The applicant obtained a passport in April 2004 without any difficulty, according to his own evidence, but did not leave the country until January 2005, suggesting to the Tribunal that the applicant did not have a sense of urgency about escaping the alleged persecution by the authorities.”
On a fair reading, the Tribunal was doing no more than making an observation about a concern that it may have raised and explored with the applicant at the hearing it did not make a finding in respect of that matter.
In the circumstances, paragraph 2 does not disclose any jurisdictional error on the part of the Tribunal.
Paragraph 3 complains that the Tribunal did not provide any evidence or material to the applicant to justify the making of its decision. Such a complaint is misconceived and unsupported by any particulars, evidence, or submissions, either oral or written.
The legislation makes it clear that it is for an applicant to satisfy a decision-maker, such as the Tribunal, that an applicant meets the criteria required for being a refugee. In circumstances where a decision-maker, such as the Tribunal, is not so satisfied that an applicant meets that criteria, then s.65 of the Act obliges that decision maker, in this case the Tribunal, to refuse a protection visa.
There is no obligation on the Tribunal to provide any evidence or material to justify the making of its decision. Certainly it is required to provide reasons for its decision. At the heart of the Tribunal’s reason for affirming the decision under review was the lack of information before it. In those circumstances, authorities have held that that is information provided by an applicant to the Tribunal and for that reason does not attract the obligations of s.424A(1) of the Act by operation of s.424A(3)(b) of the Act. SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [216] per Allsop J; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [11] – [13] per Allsop J.
Accordingly, there is no error demonstrated by paragraph 3 of the application.
Paragraph 4 makes an assertion that the Tribunal did not observe the Act. That allegation is unsupported by any particulars, evidence or submissions. The Tribunal complied with the statutory regime in the conduct of its review and the making of its decision and the conclusions made by it were open to it on the material before it.
In the circumstances, paragraph 4 is not made out.
Paragraph 5 of the amended application complains that the Tribunal did not provide evidence to support its decision and did not notify the applicant in writing about the possible reasons why the Tribunal would refuse the application. Again, this complaint is unsupported by particulars, evidence or submissions.
As stated above, the Tribunal made findings in respect of the claims made by the applicant. The Tribunal concluded that it was not satisfied about the claims made on the material before it because of the very little detail provided by the applicant. Again, as referred to above, that is information that has been provided by the applicant to the Tribunal. In those circumstances, there was no obligation on the Tribunal to notify the applicant in writing about the possible reasons why the Tribunal would refuse the applicant’s application. Otherwise see these Reasons above in consideration to Paragraph 3.
Accordingly, Paragraph 5 is not made out.
Paragraph 6 of the amended application is not a ground as such. It is an attempt by the applicant to explain why he did not attend the hearing. The applicant’s explanation does not reveal any error in the Tribunal’s decision to exercise its discretion under s.426A of the Act, which it was entitled to do.
As stated above, the Tribunal’s conclusions were open to it on the material before it and for which it provided reasons.
The Tribunal complied with its statutory obligations in the conduct of its review including the making of its decision.
The Tribunal’s decision is not affected by jurisdictional error.
Accordingly, the Tribunal’s decision is a privative clause decision, and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed.
The first respondent seeks costs fixed in an amount of $4,000. I note that the relevant schedule is sch.1 of the old Federal Magistrates Court Rules 2001. I note that the sum sought is less than the amount provided or available to the first respondent under those Rules and note that Counsel was briefed in the matter and that it was appropriate that Counsel be briefed. I am satisfied that the costs sought are reasonable.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 27 March 2007
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