SZHPT v Minister for Immigration
[2006] FMCA 1199
•27 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHPT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1199 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend Tribunal hearing – citizen of China claiming fear of persecution as a Falun Gong practitioner – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 426A, 474 |
| Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2002) 110 FCR 27 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZECI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1201 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 |
| Applicant: | SZHPT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3382 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 July 2006 |
| Date of Last Submission: | 27 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Ms Clegg |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3382 of 2005
| SZHPT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 23rd September 2005 and handed down on 18th October. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of China who arrived in Australia on
16th February 2005. On 24th February she applied for a protection (class XA) visa. A delegate of the Minister refused that protection visa on 31st May 2005. The applicant then sought a review of that decision from the Refugee Review Tribunal.
The applicant lodged her application with the Tribunal on
30th June 2005. In that application which was typed out for her she set out her residential address in a suburb of Sydney and gave a mailing address in Pitt Street, Sydney. The applicant did not file any other documents with her application. The Tribunal wrote to the applicant at her mailing address that same day acknowledging receipt of her application and explaining the procedure that would follow including giving information about a hearing.
The Tribunal then wrote to the applicant on 24th August 2005 saying that it had considered the material before it in relation to her application but was unable to make a decision in her favour based on that information alone. Accordingly, the Tribunal invited the applicant to attend a hearing on Thursday, 22nd September 2005. The applicant appears not to have replied to that letter and indeed she did not attend the hearing of the Tribunal on 22nd September. The applicant eventually conceded to the Court today that she did not attend. The applicant appeared to be vague about the requirement to attend the Tribunal hearing.
The Tribunal noted that the applicant had not appeared and proceeded to exercise its power under s.426A of the Migration Act to deal with the application for the decision under review without providing the applicant with a further opportunity to attend. The Tribunal in its decision considered information from external sources, namely, independent country information from Human Rights Watch and the Department of Foreign Affairs and Trade and material relating to the treatment of Falun Gong practitioners in China.
The Tribunal's findings and reasons are set out on pages 68 through to 70 of the Court books. The Tribunal noted the applicant's claim that she was a Falun Gong practitioner who had been detained and harassed by the authorities after Falun Gong was banned. The Tribunal noted the applicant's claims that the authorities in the People's Republic of China would seek to harm her in the future due to her association with Falun Gong.
The Tribunal was critical of the brief amount of information provided by the applicant, noting on page 69:
The applicant presented her claims poorly with only a brief statement in her protection visa application and no claims in her review application. She provided broad, vague claims regarding her interest and involvement in Falun Gong, however, she did not provide meaningful details regarding her Falun Gong activities and the Tribunal cannot determine if indeed the applicant was involved with the group or whether she was a person of interest and concern to the PRC authorities while she lived in China.
The Tribunal went on to note information from external sources set out at pages 66 through to 68 of the Court book which indeed supported the applicant's claim that the Chinese government targets Falun Gong practitioners. The Tribunal went on to note that the information indicates that the PRC government has targeted the Falun Gong members who persist in criticising the government. The Tribunal went on to find, however, that it was satisfied that the authorities do not target former Falun Gong practitioners.
The Tribunal stated that it had not been able to determine the full extent of the applicant's association with Falun Gong or if she was still involved with the group. The applicant had not provided meaningful information to the Tribunal on which it could be satisfied that she had been involved in any Falun Gong activities. The Tribunal, as is set out on page 70 of the Court book, noted a file note that the Department of Immigration & Multicultural Affairs had received some information regarding the applicant "from the community" but took the view that the information was too vague to be of any assistance to the Tribunal and said:
The Tribunal has placed no weight on this information in reaching its decision.
The Tribunal noted that the applicant had been put on notice that the Tribunal was not satisfied by the evidence she had provided in support of her application and had neither provided further information nor had she attended a hearing to give the Tribunal an opportunity to explore her claims. Accordingly, due to the absence of sufficient information, the Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution in China for reasons of religion, political opinion or any other convention reason. Accordingly, the Tribunal affirmed the decision not to grant a protection visa.
The applicant sought judicial review of that decision by means of an application filed with this Court and in an amended application filed on 15th March seeks writs of prohibition, certiorari and mandamus.
She set out one ground, headed:
The Tribunal failed to carry out its statutory duties.
The applicant claimed that the Tribunal had not provided to her, in writing, the particulars of information that was the reason or part of the reasons for affirming the decision and had thereby contravened s.424A of the Migration Act. She referred to the decision of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 and also the decision in Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27. She also set out four other grounds and stated that she would provide more details in support of her claim in her outline of submissions.
Turning to the alleged breach of s.424A of the Migration Act, the respondents submit that this ground could not be sustained. They refer the Court to the decision in SZECI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1201, also SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 and also the decision of SZEEU v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2006] FCAFC 2. The Tribunal was not satisfied because of the vagueness of the claims and the failure of the applicant to provide sufficient information, either in writing or by oral evidence at a Tribunal.
It was the absence of information of any specificity or persuasive character that was the reasons for the decision. I refer to SZECI (supra) at paragraph 24. The respondents submit, and I believe correctly, that there was no breach of s.424A of the Migration Act. Turning to the other claims, the applicant claims that the Tribunal satisfaction that she was not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief. No particulars are provided and, in my view, the Tribunal's decision showed that it was not satisfied that the applicant had satisfied the relevant criteria for a reason and there is no irrationality or illogicality that I can see in this approach.
There is no jurisdictional error in the Tribunal acting in this way and I refer to Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73. The applicant claimed that the Tribunal refused her application based on the Tribunal's assumption, not actual evidence. The applicant was not able to provide any particulars about her claim when asked and I am unable to ascertain any assumption made by the Tribunal. In any event, a Tribunal does not need evidence not to grant an application. It is for the applicant to satisfy the Tribunal and if the applicant meets the criteria for a visa as set out in s.65 of the Migration Act.
The applicant has claimed that the Tribunal did not observe the Migration Act properly in making the decision. Apart from the allegation of a breach of s.424A of the Act, which I have already referred and which I have already dealt with, the applicant provides no further details. I am satisfied that the Tribunal complied with its responsibilities under s.425 of the Act by inviting the applicant to attend a hearing. I am satisfied that the Tribunal complied with its requirement under s.425A of the Act, and indeed under s.441A of the Act, in sending that invitation to the hearing in sufficient time to the applicant's mailing address.
I am satisfied that when the applicant did not attend the hearing and no message was received from the applicant, or anyone on her behalf, that the Tribunal acted properly and did not make any error in dealing with the application under s.426A of the Migration Act. There is no failure to observe any provision of the Migration Act that I can discern.
The applicant claims also that the Tribunal failed to consider her claim. Bearing in mind the paucity of the information provided by the applicant, the Tribunal did consider her claim but was not satisfied that there was sufficient information to satisfy the Tribunal that the applicant met the criteria for a visa. All of these grounds fail.
I am mindful of the fact that the applicant is not legally represented.
I read through the decision myself and I am unable to discern any other error not referred to by the applicant. I am satisfied that the decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act and as such under the provisions of sub-s.474(1) of the Act is not therefore subject to review and the relief in the nature of prohibition, certiorari and mandamus do not apply. The application must be dismissed.
In my view, the applicant has been wholly unsuccessful in her claim. There is no reason why the Court should not make an order for costs in favour of the first respondent Minister. The amount of $4,500.00 appears to me to be an appropriate figure; bearing in mind it includes counsel's fees. I propose to make an order for costs in that amount.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 10 August 2006
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