SZHQB v Minister for Immigration

Case •

[2006] FMCA 70

•

17 January 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHQB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 70
MIGRATION – visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of China – where applicant did not attend RRT hearing.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424A.,426A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27
SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457

WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276
MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 206 ALR 471
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1181

Applicant: SZHQB
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 3393 of 2005
Delivered on: 17 January 2006
Delivered at: Sydney
Hearing date: 17 January 2006
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Radich
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. Leave to join Refugee Review Tribunal as a Respondent.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3393 of 2005

SZHQB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 15th September 2005. The decision was handed down on 13th October 2005. 

  2. In its decision the Tribunal affirmed the decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs not to grant a protection visa to the Applicant.

Background

  1. The Applicant is a citizen of the People’s Republic of China. She arrived in Australia on 12th December 2004.  On 24th January 2005 she applied for a protection (class XA) visa, claiming to fear persecution due to her involvement in a Christian underground church. She claims she is wanted by the authorities in China for distributing certain publications and that other members of her group had been arrested. 

  2. A delegate of the Minister refused her application for a visa on 7th April 2005. On 16th May 2005 the Applicant applied for a review of that decision. The application for a review did not provide any additional information to the Tribunal. The Tribunal wrote to the Applicant at the address of her migration agent to say that the Tribunal had considered all the papers relating to the application but was unable to make a favourable decision on that information alone. The application was invited to give oral evidence and present arguments before the Tribunal on 30th August 2005.

The tribunal’s findings and reasons

  1. On 25th August 2005 the Applicant or rather the Applicant's migration adviser faxed a form of response to hearing invitation to the Refugee Review Tribunal. A cross was placed in the box beside the words: “No, I/we do not want to come to a hearing. I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.”

    The section to be filled in by an applicant who did wish to attend the hearing had been crossed out.  The document was signed by the Applicant's migration adviser Grace X Chen who added the words in brackets:

    I have been formally instructed by (name of Applicant deleted).

  2. Part of it is obscured and it relates to the hearing. Accordingly, the Refugee Review Tribunal proceeded to decide the application on the base of the material that was before it. The Tribunal has the power to do this under s.426A of the Migration Act. In the Tribunal's findings and reasons the Tribunal noted at page 67 of the court book.

    Determining whether the Applicant has a well founded fear of persecution for a convention related reason requires me to assess the Applicant's claims and to determine if an applicants claims are credible and plausible in light of the independent evidence of a particular country.  The Applicant was put on notice that the Tribunal was unable to make a favourable decision on the information before it. She did not provide any further information to support her claims, nor did she give the Tribunal the opportunity to explore relevant aspects of her claims with her. 

  3. The Tribunal went on to say at paragraph 68:

    Whilst I accept that some prominent members of underground churches face difficulties in some parts of the country, without further information from the Applicant I am not satisfied the Applicant is a Christian or was involved in the Christian underground churches or is wanted by Chinese authorities for distributing underground unregistered religious publications secretly imported from foreign countries Her claims are vague and without details.  Without further information from the Applicant, I am also not satisfied she had been under investigation for some time prior to her departure for Australia or that her employment opportunities have been affected.

  4. The Tribunal affirmed the decision not to grant a protection visa. 

Application and amended application

  1. The Applicant filed an application for review of that decision on 21st November 2005. The Respondent noted that the Applicant had provided no grounds other than a vague assertion of an error of law particularised as the Tribunal misconstrued or misapplied the law concerning its determination. 

  2. The Applicant was referred to the Pilot Scheme for Legal Advice available to people who wish to challenge a decision of the Refugee Review Tribunal. A solicitor, Mr Ray Turner, prepared for her an Amended Application under the Migration Act. Quite properly be forwarded a copy of that document to the solicitor for the Respondent. The Applicant sought leave to file the Amended Application in court on the day of the hearing and the solicitor for the Respondent did not oppose leave for that document to be filed.

  3. Accordingly, I granted leave and I proceeded to hear the application on the basis of the grounds set out in the Amended Application filed today. There are two grounds given, first that the Tribunal failed to carry out its statutory duty, second, that the Tribunal failed to base its findings on evidence. As to the first ground, the Applicant claims that the Tribunal did not comply with s.424A of the Migration Act and relied on the decisions in SAAP & MIMIA [2005] HCA 24 and also Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27.

  4. The substance of the Applicant's claim was that the only information before the Tribunal was that contained in the Department's file and that given to the Tribunal by the Applicant. The Tribunal was required to provide particulars of the information that was the reason or part of the reasons for affirming the decision and was required to explain why the information was relevant and provide the Applicant with an opportunity to comment on it. Those particulars have to be provided in writing. The Respondent submits, correctly in my view, that there is no breach of s.424A.

  5. The application was rejected on the basis not of information but of a lack of information. There is a significant amount of authority binding on this court that it is the task of an applicant to provide information sufficient to enable the Tribunal to be satisfied that the Applicant meets the criteria for a visa. If the Tribunal is satisfied that the Applicant does not meet the criteria, s.65 of the Migration Act makes it clear that the application must be rejected.

  6. If the Tribunal is not of a view that the information provided is sufficient to allow the Tribunal to reach a state of satisfaction that the Applicant meets the criteria for the visa, then the Tribunal cannot be satisfied.  Being satisfied that an applicant meets the criteria for the grant of a visa is a positive finding and if there is insufficient evidence then the Tribunal cannot be satisfied and the application must be refused, and that in effect is what has happened in this case.

  7. The authorities make it clear that the lack of information is not information for the purpose of s.424A. I am referred to the decision of Bennett J in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457 which is a decision on appeal from the Federal Magistrates Court and is binding on this court.

  8. Her Honour at [19] through to [24] noted that the Tribunal's decision was based on a lack or absence of information on which to form the requisite satisfaction. Her Honour rejected the submission that the lack of information or insufficient information is of itself information within the meaning of s.424A (1) of the Migration Act.

  9. I note that in WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276, MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256, and also in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 206 ALR 471, the court has held that the word ‘information’ imports at least some positive factual material and conclusions arrived at by the Tribunal in weighing up aspects of the evidence by reference to gaps or defects in that evidence is not information for the purpose of s.424A.

  10. I have also been referred to the decision of Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 again a decision on appeal from the Federal Magistrates Court and at [29] 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 s.424A (1) or s.424A(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 discussed the purpose of s.424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an unbundling is necessary in order sensibly to apply s.424A to the expressed reasons of the Tribunal. Here the reasons for the decision are plain. The Tribunal, having read all the material and having evaluation its content and weight was unable to reach a specified mental state. 

  11. His Honour said at [30]:

    Thus in my view there was no failure to comply with s.424A.

  12. That also is a decision on appeal from the Federal Magistrates Court and is of course binding on me.

  13. I also note that other judges have looked at this question where an applicant does not attend the hearing of the Refugee Review Tribunal and accordingly the Tribunal proceeds under s.426A to look at what information there is. Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306, again a decision from a Federal Magistrate, followed the decision of the Full Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 and at [16] his Honour said :

    The RRT made it perfectly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant's favour on the basis of the information before it and as the Full Court observed in NAVX & MIMIA [2004] FCA 287 when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.  Thus even though the RRT adverted to matters (B) and (C) in its reasons, what was integral to the RRT's reasoning process was the notified inadequacy of the information provided by the appellant in support of his claims and his rejection of the invitation to appear at a hearing designed to afford him the opportunity to elaborate on that information.

  14. In SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1181 Bennett J referred with approval at paragraph 17 to the quote from Hely J in SZDXC at [16] to which I have previously referred. Interestingly, at [8] her Honour pointed out that it is well accepted that the powers of the Tribunal to make an investigation under the Act do not give rise to any mandatory investigation. Her Honour went on to say it is for the appellant to present to the Tribunal material necessary to achieve the requisite satisfaction. In this case, clearly the Applicant did not.

  15. The other ground that has been argued in the Amended Application, or cited in the Amended Application, that the Tribunal failed to base its findings on evidence. The Applicant refers to the Tribunal's positive finding:

    I am satisfied the Applicant is not a Christian nor has the Applicant been involved in any anti government activity nor has the Applicant a political or religious profile or an imputed religious or political profile.  The Tribunal, it is submitted has no evidence on which to base this positive finding.

  16. The fact as I see it is that this passage has been taken out of context.  Earlier on the same page, the Tribunal had made it clear that without the information that was necessary the Tribunal could not be satisfied of those matters.  Ms Radich for the Respondent submitted that in other words the reasoning for the Tribunal's finding that the Applicant was not a Christian was the lack of information. 

  17. In reply, the Applicant sought time to provide further information but I made it clear that such time had passed. The time to provide further information was at the hearing of the Refugee Review Tribunal which the Applicant elected not to attend.  It is hardly surprising that in the circumstances the Tribunal was not satisfied that the Applicant met the criteria for a protection visa. 

  18. I am satisfied that the decision of the Tribunal is a privative clause decision as defined in s.474 of the Migration Act 1958 and that it attracts the protection of that section.  There is no jurisdictional error.  The application must be dismissed. 

  19. There is an application for costs. The Applicant has been wholly unsuccessful and in my view there is no reason why I should not make an order for costs. The amount of $3,000.00 which is sought is well within the scale provided by the Federal Magistrates Court Rules.


    I would say that the way in which the solicitor for the Respondent has dealt with the matter has been appropriate and is a reflection of the way in which in my view the Respondent should deal with applications of this nature. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  25 January 2006

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