SZHSR v Minister for Immigration

[2007] FMCA 672

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHSR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 672

MIGRATION – Review of Refugee Review Tribunal decision – where applicant failed to attend Tribunal hearing – where Tribunal concluded it was not satisfied the applicant had suffered the claimed harm without further evidence – whether the Court can review the Tribunal’s decision on its merits.

Migration Act 1958, s.426A

SZEZI v MIMA [2005] FCA 1195

Applicant: SZHSR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3536 of 2005

Judgment of: Raphael FM

Hearing date: 20 April 2007

Date of last submission: 20 April 2007

Delivered at: Sydney

Delivered on: 20 April 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant to pay the First Respondent’s costs assessed in the sum of $2,750.00.

3. The First Respondent’s name be amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3536 of 2005

SZHSR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. She arrived in Australia on 24 October 2004. On 2 November 2004 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 26 May 2005 a delegate of the Minister refused to grant a protection visa and on 1 July 2005 the applicant applied for review of that decision. On 25 August 2005 the Tribunal wrote to the applicant advising her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. The Tribunal invited the applicant to a hearing on 10 October 2005. It sent that letter by registered post and there has been produced to me in evidence a copy of the post book from the Tribunal confirming that the letter was sent in that manner on that day. The letter was not returned. The applicant did not appear before the Tribunal. Today she told me that she was sick but offered no explanation as to why she did not try and contact the Tribunal and advise them of this problem. The Tribunal, in accordance with the provisions of s.426A, proceeded to determine the review application and concluded that it should affirm the decision under review. It made that decision on 10 October 2005 and handed it down on 1 November 2005.

2. The applicant’s claim to be a person to whom Australia owed protection obligations arose out of her commitment to Falun Gong which she described in a statement, found first at [CB24-25] and repeated almost identically at [CB49], to the Tribunal.  The applicant indicated that she had been a Falun Gong practitioner for some time, that in April 2002 she was required to go to a district police station where she was questioned about her Falun Gong practices.  She was given some negative material about Falun Gong and then recalled to the station the next day.  When the applicant refused to write letters denouncing Falun Gong she was sent to a brain washing class and deprived of her personal freedom.  She said that after May 2002 she went to Beijing on two occasions to protest and as a result was sentenced to a three month imprisonment term at a labour camp.  She says that she bribed an official to provide her with a passport and applied for a visa to Australia.

3. The Tribunal considered these matters but stated in its findings and reasons at [CB65]-[66]:

   “Without further details, clarifications, corroborative evidence and without having had the opportunity to explore the claims with the applicant at the hearing the Tribunal is not satisfied that the applicant is a Falun Gong practitioner nor is the Tribunal satisfied that she has ever been involved in Falun Gong activities either in China or in Australia.  It follows that the Tribunal is not satisfied that the applicant was ever detained or questioned in China for her Falun Gong activities or that she was detained in a labour camp or that the police ‘tried to force us to write pledges and letters to denounced Falun Dafa’, or that she had to attend brain washing classes, or that she bribed an important government official to obtain her passport.  In essence, the Tribunal is not satisfied that the applicant has suffered or would suffer any of the claimed harm.”

4. The conclusion reached by the Tribunal in this case could be summed up using the words of Allsop J in SZEZI v MIMA [2005] FCA 1195 at [29]:

   “The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state.  It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information.  The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited.”

5. In her application to this Court the applicant gives three grounds of complaint.  Firstly, she says that she met the criteria according to Article 1A(2) of the Refugee Convention.  The meaning of that criterion is a question of fact for the Tribunal alone and for this Court to interfere in any finding in relation to that matter would be effecting impermissible merits review.  The second matter was that the applicant was a Falun Gong practitioner and was tortured by the Chinese government.  This again is a question of fact.  The Tribunal did not come to a conclusion that the applicant was not what she said she was, merely that it was not satisfied that she was.  That is the task of the Tribunal; again, the Court cannot interfere.  Finally, the applicant said that she risked gaol if she returned to China.  Again, that is a question of fact, not subject of judicial review.

6. The applicant has expressed no grounds upon which judicial review might be provided and a close reading of the Tribunal’s decision does not indicate to me that such grounds might exist even if they were unexpressed.  In those circumstances I shall dismiss the application and I shall order that the applicant pay the respondent’s costs which I assess in the sum of $2,750.00.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  20 April 2007