SZHML v Minister for Immigration

Case •

[2007] FMCA 1045

•

14 May 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHML v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1045
MIGRATION – Refugee – review of Refugee Review Tribunal decision – applicant did not attend Tribunal hearing – Tribunal not satisfied of applicant’s claims – no jurisdictional error – application dismissed.
Migration Act 1958, ss.426, 65, 36(2), 424A, 426A, 425, 425A, 441A, 41C(4)
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] 110 FCR 27
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238
Applicant: SZHML
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3185 of 2005
Judgment of: Nicholls FM
Hearing date: 14 May 2007
Date of Last Submission: 7 May 2007
Delivered at: Sydney
Delivered on: 14 May 2007

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Counsel for the Respondents: Ms. B. Nolan
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

  2. The application is dismissed.

  3. The applicant pay the first respondent’s costs set in the amount of $3,260.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3185 of 2005

SZHML

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore: Revised from Transcript)

  1. This is an application filed in this Court on 1 November 2005 and amended on 21 December 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 9 September 2005 and handed down on 29 September 2005, affirming the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

  1. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 12 January 2005 and lodged an application for a protection visa with the first respondent’s Department on 21 February 2005.  On 5 April 2005 a delegate of the respondent Minister refused to grant a protection visa to the applicant.  On 10 May 2005 the applicant applied to the Tribunal for review of this decision.

The applicant’s claims

  1. The applicant’s claims to protection are contained in his application for a protection visa (reproduced at Court Book (“CB”) CB 1 to CB 26) and the applicant’s application for review to the Tribunal (CB 50 to CB 53). In essence, the applicant claimed religious persecution as a result of his beliefs and involvement in the practice of Falun Gong. The applicant claimed he had been a Falun Gong practitioner since 1998, that a friend had been imprisoned for four years, that he had to report periodically to the police and stay in the police station on holidays and other days, and that the police started to investigate him in April 2004 about his involvement with Falun Gong and his relationship with his friend. The applicant also claimed that he had come to Australia because he would face severe persecution in China.  

Tribunal hearing

  1. Following receipt of the application for review, the Tribunal wrote to the applicant by letter dated 12 May 2005, and advised him of the process which applied to the processing of his application (CB 54 to CB 55). Relevantly, the letter put the applicant on notice as to the possibility of a hearing and its importance to the processing of his claim if he were to be invited. The letter further advised the applicant as to what he should do if he were to change his mailing address. The letter was sent to the applicant’s address for service, as provided by the applicant in his application to the Tribunal (CB 52.2).

  2. On 26 July 2005, the Tribunal again wrote to the applicant by letter sent by registered post and also sent to the address provided by the applicant (CB 56 to CB 57). The Tribunal advised the applicant that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone, and invited him to give evidence and present arguments at a hearing scheduled on 9 September 2005. The letter further informed him that if he did not attend the hearing and a postponement was not granted, the Tribunal could make a decision without further notice.  

  3. The material before the Court (particularly CB 58 to CB 59), including the relevant part of the Tribunal’s decision record (CB 69.7), reveals that the Tribunal did not receive any response from the applicant to its letter as had been requested, nor did the applicant attend at the hearing at the scheduled time and place. The Tribunal, it appears, took action to confirm that the letter had been sent to his address for service and noted that the applicant had not provided a telephone number on which he could be contacted directly (CB 58 to CB 69.8).

  4. On 9 September 2005, the applicant did not appear before the Tribunal (CB 59). In these circumstances, pursuant to s.426 of the Migration Act 1958 (“the Act”), the Tribunal proceeded to exercise its discretion to make a decision on the review without taking further action to enable him to appear before it (CB 69.8 to CB 69.9).

Tribunal’s findings

  1. The Tribunal, in its “Findings and Reasons” at CB 70.5 to CB 71.4 found:

    1)It accepted Falun Gong was banned in the PRC and there has been a sustained crackdown on practitioners since then (CB 70.8 to CB 70.9).

    2)In the applicant’s circumstances, his claims were brief and vague on various crucial points, including why, if he was known by police to be a Falun Gong practitioner, he was never charged with belonging to the banned organisation during the past five years (CB 70.10 to CB 71.1).

    3)The applicant had not explained what steps were effected by his paying of a large sum for his passport (which it noted was in his own name and stated his correct date of birth and appeared to be a genuine document) (CB 71.2).

    4)He provided no evidence, apart from his own assertions, that he was familiar with Falun Gong practice at all, or that he had a friend who had been imprisoned for reasons relating to Falun Gong (CB 71.3).

    5)Ultimately, his claims were so vague that it was unable to establish the relevant facts (CB 71.3).

    In all, the Tribunal was not satisfied on the evidence before it, that the applicant had a well founded fear of persecution within the meaning of the Convention (CB 71.4). On this basis it affirmed the decision not to grant a protection visa (CB 71.5).

The applicant’s application

  1. The applicant’s original application, filed on 1 November 2005, claims the following grounds of review:

    “1. The Tribunal did not consider all the information provided for my application for a protection visa.

    2. The Tribunal failed to consider my claims.

    3. The Tribunal failed to assess the chances of my persecution on my return to China.”

  2. The applicant’s amended application, filed on 21 December 2005 put forward the following grounds of review:

    “1. The Tribunal believed that my claims are brief and vague on various crucial points, made a decision on my application without referring to independent information for consideration of my application.

    2. My application was not considered according to Migration Act 1958, with the correct legal procedure just because the officer believed that my claims are brief and vague. I don’t think my claims are brief and vague.

    3.   The Tribunal officer mentioned: “However, Mr.Ye’s claims are brief and vague on various crucial points.  These include an explanation as to why, if he was known by police to be a Falungong practitioner, as is indicated by the fact that he had to report to the police periodically and so on, he was never charged with belonging to this banned organisation during the past five years in China.  He also does not explain why, if1 (sic) he was already known to have been a Falungong practitioner, the police began investigating him in April 2004, or indeed how he became aware they were doing so.”  The Tribunal based on the above mentioned unclear points to refuse my application.  However, the Tribunal has never informed in writing that the above mentioned would be the reasons that the Tribunal would refuse my application.  I did not know that the Tribunal officer was unclear about the above mentioned.  I would have explained to her about that if I knew about these.

    4.   I did not attend the hearing because I worried about my safety, there are spies from 610 officer everywhere in Sydney, especially organisation like RRT.”

  3. At the hearing before the Court, the applicant appeared unrepresented with the assistance of an interpreter in the Cantonese language. Ms. Nolan appeared for the first respondent. I note the written submissions prepared by Ms. Nolan and filed on 7 May 2007, on behalf of the Minister. When given the opportunity to tell the Court what he wanted to say about the Tribunal's decision, the applicant was unable to assist the Court.  I note, in particular, that I explained to the applicant the difference in the role and power between the Tribunal and the Court and that the question as to whether the applicant was a refugee or not was a matter for the Tribunal. Further, I explained that the Court's role was to consider whether the Tribunal’s decision was made according to law. 

  4. I understood from the applicant that he sought to rely on what was set out in the grounds of the amended application which he said had been prepared with the assistance of his solicitor. I note that the applicant was referred to a lawyer on the panel of the Court's Legal Advice Scheme. From communications on the Court’s file from Counsel, it appears that advice was ultimately sent to the applicant on 12 May 2006 by way of registered post. I note it was not clear that this was the lawyer to which the applicant referred.  Nonetheless, the applicant confirmed he wanted the Court to consider the grounds in the amended application and that he had nothing to add to what was written in this application.

  5. On any plain reading of the Tribunal’s decision record, it is clear that the applicant was unsuccessful before the Tribunal because, on what was before it, it could not reach the requisite level of satisfaction, such that the protection visa had to be granted (with reference to s.65 and s.36(2) of the Act).

  6. The applicant was put on notice that on what was before the Tribunal, that it could not make a favourable decision.  He was put on notice as to the importance of his attendance at a hearing to provide evidence and further argument in support of his claims.  The applicant's unexplained failure before the Tribunal to attend at the hearing was the “inevitable consequence” of his application being refused (NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]).

  7. The applicant’s first complaint in the amended application is that the Tribunal did not refer to independent information in considering his application.  Beyond a reference to country information in accepting that Falun Gong practitioners had been subject to a sustained crackdown by the Chinese authorities, the simple answer to this particular complaint by the applicant is that the Tribunal did not need to refer to any independent information.

  8. As I have already stated, it was the inability of the Tribunal to be satisfied as to the applicant's claims based on what had been put before it that lead to the unsuccessful outcome for the applicant.  The Tribunal did not need independent country information to form the view that the applicant’s claims were “brief and vague” on crucial points. This ground therefore, does not succeed.

  9. The applicant’s second ground in the amended application is that the application was not considered with the “correct legal procedure”.


    I understood this to be the applicant taking issue with the Tribunal's description or belief of his claims as being “brief and vague” because he did not think that his claims were “brief and vague”. In my view, on what was before it, it was open to the Tribunal to find the applicant's unsupported and unexplained claims to be vague. The applicant's belief now that his claims are not vague does not reveal jurisdictional error on the part of the Tribunal. With reference to relevant parts of the Act, it is for the decision maker to reach the mandatory statutory level of satisfaction, not the applicant. Beyond the disagreement with the Tribunal’s characterisation of his claims as being “brief and vague”, the applicant does not assert any particularity to enlarge his claim that the Tribunal did not consider his claims with the correct legal procedure. This complaint also does not succeed.

  10. The third ground of the amended application is that the Tribunal did not inform the applicant of the basis on which it would subsequently refuse his application. To the extent that this may be a complaint that the Tribunal breached its statutory obligations pursuant to s.424A of the Act, I note and agree with what is set out at paragraph 19 of written submissions prepared by Ms. Nolan on behalf of the Minister.

  11. I cannot see that the reference to the applicant’s claims in the Tribunal's “Findings and Reasons” is such as to breach the requirements set out in s.424A(1) of the Act (bearing in mind what was said by the High Court in the matter of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and by the Federal Court in the matters Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] 110 FCR 27 and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2). A mere re-statement of the applicant’s claims as has plainly occurred in the matter before me, does not mean that such a re-statement is information for the purposes of s.424A(1) of the Act.

  12. Plainly, as I have already stated, the reason for the Tribunal’s decision was the Tribunal’s inability to reach the requisite state of satisfaction such that the applicant must be granted a protection visa. As the Minister submits, and indeed, on any plain reading of the Tribunal’s decision record, no findings of fact were made on the information contained in the protection visa.  Simply, the Tribunal found the paucity of the material and the absence of material such that a decision in the applicant’s favour could not be made. Again, I note and follow the authorities that the Minister relied on, SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29] and SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 at [12], [13] - [14].

  13. I should also note that beyond s.424A of the Act, the applicant’s claim that he was not on notice as to why the application would possibly be refused is not made out on the material before the Court. The Tribunal's letter of 26 July 2005 was quite plain. On what was before it, the Tribunal could not be satisfied that the applicant met the relevant requirements such that a protection visa should be granted to him, that is, the requirement set out in s.36(2) of the Act, with reference to Article 1A(2) of the Refugee’s Convention. Far from the Tribunal failing to tell the applicant that the lack of detail and paucity of evidence would be the possible reason for its ultimate decision, the Tribunal’s letter plainly shows that this was the reason why it invited him to a hearing to enable him to convince the Tribunal to come to a different conclusion. The applicant claims that he did not know that the Tribunal was unclear about these matters and that he would have “explained to her” about these things if he knew about them. On what is before me, this complaint cannot be sustained.

  14. The fourth ground seeks to explain why the applicant did not attend the hearing.  The claim is expressed in terms such that the allegation is that the Tribunal contains spies for the Chinese authorities.  If this was the reason that caused the applicant not to attend the hearing in spite of the Tribunal's letter, then relevantly, there is nothing before the Court to show that the applicant advanced this concern before the Tribunal, sought any adjournment or other opportunity to put forward details of his claims.  If the applicant was worried about attending the hearing before the Tribunal, there is nothing to show that he wrote to the Tribunal to advise it of this. Nor is there anything to show he put to the Tribunal a further explanation of his claims in writing as had been notified to him, which was provided for as a possibility in the Tribunal's letter of 12 May 2005.  That is, where the Tribunal advised the applicant of the possibility of sending documents, information or other evidence in writing. 

  15. I should also note that the applicant had made no assertion before the Court that he did not receive the letter of invitation to the hearing. Further, ground four of the amended application, as stated, implies that the applicant had received the invitation but did not attend because of his worry about his safety.  In any event, the critical issue is, that there was nothing before the Tribunal to alert it to the applicant's concern in this regard, such that it may have compelled the Tribunal to have made alternative arrangements to provide an opportunity to the applicant to add to the claims that he had originally made.  In the absence of anything of that nature put before it, the Tribunal was entitled to proceed in the way that it did to make its decision.

  16. I should just note, in the original application, the applicant put forward three un-particularised complaints.  The first and second grounds state that the Tribunal did not consider the information provided by the applicant and that the Tribunal failed to consider the applicant’s claims.  On the basis of what I have already set out, plainly neither of these complaints can succeed.  The third ground in the originating application is that the Tribunal failed to assess the chances of persecution on the applicant's return to China. On what is before the Court, plainly this complaint also cannot succeed. 

  17. The Tribunal’s decision record reveals the Tribunal understood the relevant question that it was required to consider and answer. That is, whether the applicant had a well-founded fear of persecution within the meaning of that concept, as derived from the Refugees Convention. Simply, the Tribunal’s answer to that question was, that on what was before it, it could not be satisfied that the applicant had such a well‑founded fear. 

  18. In all, as I have already stated, the Tribunal was entitled to proceed to a decision in the exercise of its discretion pursuant to s.426A of the Act.

  19. I should also just note that the letter of invitation to the hearing complied with the requirements of s.425 and s.425A of Act. The letter was sent by one of the methods set out in s.441A of the Act, to the applicant's address for service. With reference to s.441C(4) of the Act and Reg.4.35D(b) of the Migration Regulations 1994, the prescribed notice period was met. The Tribunal also satisfied itself further that the letter had been properly addressed and that it had not been returned as unclaimed. In these circumstances, it was open to the Tribunal to proceed in the exercise of its discretion pursuant to s.426A of the Act.

  20. In all, therefore, I cannot discern jurisdictional error in the Tribunal's decision based on what the applicant has put in his application to the Court. Nor can I otherwise discern jurisdictional error.  In all, therefore, and for these reasons, the application to the Court is dismissed.

  1. I cannot see that there is anything before the Court that would argue against a costs order being made so I will make such an order.  While I take what is set out in the Schedule to the Federal Magistrates Court Rules 2001 (both the current and previous rules) as some guidance in these matters, I am satisfied that on what is before me, the amount sought by the Minister is a reasonable amount. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Dawnie Lam

Date:  4 July 2007

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