SZHRU v Minister for Immigration

Case •

[2006] FMCA 448

•

20 March 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHRU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 448
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 – bias alleged – no evidence of bias.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1948 (Cth), ss.420, 426A, 474

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306

Applicant: SZHRU
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 3492 of 2005
Delivered on: 20 March 2006
Delivered at: Sydney
Hearing date: 20 March 2006
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Quinn
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3492 of 2005

SZHRU

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 signed on 14th October 2005. The Tribunal handed down its decision on 3rd November 2005. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the Applicant. 

Background

  1. The Applicant is a citizen of the People's Republic of China.


    He arrived in Australia on 16th April 2005. On 18th April he lodged an application for a protection (Class XA) visa.  That visa was refused on 27th June 2005.

  2. On 28th July the Applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal wrote to the Applicant on 16th September 2005. The Tribunal asked the Applicant to appear at a hearing before the Tribunal on Friday 7th October. The purpose of the hearing was so that the Applicant could give oral evidence in support of his claims. As a result the Tribunal can be said to have complied with its obligation under s.425 of the Migration Act. The Applicant did not reply to the invitation. There is a form for the Applicant to complete and return to the Tribunal. That form was not received.  

  3. The Applicant did not attend the Tribunal hearing and has not given any evidence that he attempted to contact the Tribunal to explain his absence. The Tribunal proceeded to make its decision on the review without taking any further action to enable the Applicant to appear before it under the provisions of s.426A of the Migration Act.


    The Tribunal considered the Applicant's claims such as they were. 

  4. The Tribunal noticed the Applicant said that the government had sequestrated his land for housing and gave him little financial compensation in return.  The Applicant and other farmers protested and the government threatened them with imprisonment. He sought financial assistance from the government. He said that this family were in danger and he was imprisoned. The Applicant obtained a Chinese passport on 25th August 2004 and later travelled to Australia.

The Tribunal’s findings and reasons

  1. In its findings and reasons the Tribunal noted that because the Applicant had failed to attend an interview with the Tribunal and failed to provide additional evidence in support of his claims it was difficult for the Tribunal to assess the very limited evidence to his advantage.  Although the Tribunal accepted the Applicant was a Chinese citizen and that he was born in Herbei province the Tribunal did not accept a number of important factors relating to the Applicant's claim. 

  2. The Tribunal noted that it did not accept those claims due to lack of evidence. The Tribunal went on to say that as the Applicant did not attend the hearing before the Tribunal it was unable to explore those issues and other issues raised in his claims. The Tribunal therefore was not satisfied that the Applicant had a well-founded fear of persecution for a convention reason and affirmed the decision not to grant a protection visa.

The application for judicial review

  1. The Applicant commenced proceedings in this Court and filed an Amended Application on 7th February 2006. He accompanied that Amended Application with an affidavit. The text of the affidavit repeats the three grounds contained in the Amended Application and adds one further paragraph by way of submission. I have read the First Respondent's Outline of Submissions and I have heard the Applicant's oral submissions today.

  2. The Applicant told the court that he did not attend the Tribunal hearing because he lost his way. He realised how important the Tribunal hearing was. He did not give any evidence of trying to contact the Tribunal to explain his non-appearance and I note that he did not tell the Tribunal that he intended to appear at the hearing.

  3. I asked the Applicant to explain his belief that the Tribunal decision contained some bias. His answer to that was that he could not remember what he had said. There is no evidence of bias in the Tribunal decision.  An allegation of bias is a serious matter and implies personal fault on the part of the decision maker. An allegation of bias must be proved by evidence. There is no evidence in support of the allegation. The mere fact that an unfavourable decision does not of itself prove bias. 

  4. The Applicant told the court that he believed that the Tribunal had fallen into error because if the Court could understand the situation in his native country the court would realise that his materials were genuine. I have no doubt that the Applicant believes that to be true but the Tribunal was not satisfied with the meagre information with which it was provided to establish a well-founded fear of protection for a reason connected with the Refugees Convention. Even if there is a well-founded fear of persecution, if it is not connected to a convention reason then an applicant will not be successful.

  5. Turning to the grounds contained in the application, the Applicant claimed that the tribunal could not judge the "property" of the evidence by not having a proper investigation. He referred to the decision of the Full Court of the Federal Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215. It appears that something may have been left out of the Applicant's ground which I note is repeated in paragraph 1 of his affidavit because the Applicant has said that the Full Court at [15] and [16]:

    "Concluded that a legislative regime which requires a positive state of satisfaction is not reached." 

  6. If the Applicant means that the Tribunal did not conduct a proper investigation of his claim it is fair to say that the Tribunal could not be satisfied that his claims were true because he had not provided sufficient information in support of those claims. 

  7. The Respondent points out that the decision in SJSB referred to by the Applicant says that the passage referred to about the conclusion of the Full Court was to this effect: 

    "A legislative regime which required a positive state of satisfaction as to where the protection obligations are owed mandated a refusal decision if that state of satisfaction is not reached." 

  8. The Tribunal made it quite clear that the grounds for refusal of the application were the inadequacy of the information provided. Unless the Tribunal reaches a positive state of satisfaction the application must be refused. It is not incumbent upon the Tribunal to conduct its own independent investigation; it is for the Applicant to convince the Tribunal that the Applicant's claims are sufficient to meet the criteria for a protection visa. The information was inadequate to allow the Tribunal to be satisfied as to that point and so this ground must fail.

  9. The second ground provides that s.420 of the Migration Act requires the Tribunal to do substantial justice deciding each case on its merits and avoiding technicalities. From my reading of the Tribunal's decision it is clear that the Tribunal did decide this case on its merits and it did avoid technicalities. I have already referred to the claim of bias in ground 3 and found that there was no bias. The reason for the refusal decision was the lack of evidence provided by the Applicant. 

  10. Turning to the Applicant's submission that the Tribunal failed to accord procedural fairness to the Applicant and misconceived its obligations under s.424 of the Migration Act by failing to obtain current country information I am unable to see how a decision that the information provided by the Applicant was inadequate amounts to a failure to accord procedural fairness or a misconception of the Tribunal's obligations under s.424 of the Act. The Tribunal is not obliged to embark on its own search for country information in support of an Applicant's claim.  

  11. In his affidavit the Applicant refers to a denial of procedural fairness and a denial of natural justice. There is no evidence of either.


    The Tribunal offered the Applicant an opportunity to attend a hearing to give evidence to provide additional evidence and to make submissions about his case. The Applicant did not attend that hearing. He did not tell the Tribunal that he was going to attend the hearing. He claims that he lost his way but made no attempt to contact the Tribunal later to explain the reason for his absence. He did nothing. 

  12. This is a matter that has been considered in many cases before this court and before the Federal Court of Australia. In the decision of SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 Heeley J said that the Tribunal made it pellucidly clear in its letter to the applicant in that case that it was unable to make a decision in the appellant's favour on the basis of the information before it. and his Honour went on to say at [16]:

    "And as the Full Court observed in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA FC 287 when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing the inevitable consequence was rejection of his application.” 

  13. When the Applicant in this case did not attend the hearing that was offered to him and did not attempt to contact the Tribunal to explain his absence it is hardly surprising that his application should be unsuccessful because of the inadequacy of the evidence provided. I have read the decision; I am unable to determine any other jurisdictional error. There is no evidence of bias. There is no evidence of denial of procedural fairness or denial of natural justice. There is no jurisdictional error. The decision is a privative clause under the provisions of s.474 of the Migration Act. The application will be dismissed. 

  14. In my view this is an appropriate matter for an order for costs.


    The amount sought is the sum of $2,300.00 that is within the scale provided by the Federal Magistrates Court Rules. The Applicant is to pay the First Respondent's costs fixed in the sum of $2,300.00.


    I require a transcript of my reasons for this decision. The application is removed from the list of cases awaiting finalisation.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  31 March 2006

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