SZHTG v Minister for Immigration
[2007] FMCA 1868
•23 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHTG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1868 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no failure to comply with statutory procedures. |
| Migration Act 1958 (Cth) ss.424A, 425, 426A, 441A |
| Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 11 SZHSQ v Ministerfor Immigration & Multicultural Affairs [2006] FCA 1295 Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 VSAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1270 |
| Applicant: | SZHTG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3565 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 23 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2007 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The title of the first respondent be amended to read Minister for Immigration & Citizenship.
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3565 of 2005
| SZHTG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 1 November 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of the People's Republic of China, arrived in Australia in June 2005 and applied for a protection visa.
In a statement accompanying her protection visa application she claimed, in essence, to fear persecution as a result of her activities as a Falun Gong practitioner, including a claim that she had been sentenced and detained for one month in a labour camp during which time she had been tortured, that she had travelled to Korea to run a small business for nearly five years and then returned to China. She claimed that she subsequently heard that Falun Gong was still not allowed and was told by a friend that the police had decided to arrest her. She claimed that in a bid to avoid further persecution she came to Australia. The application was refused and the applicant sought review by the Tribunal.
In her review application the applicant provided a residential address. She indicated she did not have an adviser who was authorised to act for her in relation to her application. In response to the question as to where she wanted the Tribunal to send correspondence about her application, she provided a mailing address which differed from her residential address. She also provided a written statement that reiterated her protection visa application claims to fear persecution as a Falun Gong practitioner.
The Tribunal wrote to the applicant at the address for correspondence provided in the review application by letter dated 7 September 2005. That letter informed the applicant that the Tribunal had considered the material before it but was unable to make a decision in her favour on that information alone. It invited her to a hearing on 4 October 2005 at a time and place specified and advised her that if she did not attend the hearing and the Tribunal did not postpone it, it could make a decision on her case without further notice. In its reasons for decision the Tribunal recorded that no response was received and the letter of 7 September 2005 was not returned unclaimed. The Tribunal checked the applicant’s most recent address for service and that she had not left Australia and observed that no telephone or fax contact numbers had been provided by the applicant in her review application. The applicant did not appear before the Tribunal on the day, time and place at which she was scheduled to appear.
In those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth), the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal summarised the applicant's written claims and referred briefly to country information in relation to Falun Gong. It accepted that the applicant was a citizen of the People's Republic of China, but found that it was not able to be satisfied of the truth of her claim that she was a Falun Gong practitioner in China for several reasons, among which were said to be first, the fact that her account of her claimed involvement in Falun Gong in China was unsubstantiated and “notably vague and generalised”. The Tribunal referred to particular aspects of Falun Gong practice and faith that were not addressed in the applicant's claim, finding that beyond her “highly formalised references” to Falun Gong which, it stated, appeared to have been taken directly from Falun Gong publicity material, she had provided no information to indicate she had any knowledge whatsoever about the Falun Gong faith, its teachings or beliefs. It found her account of her own involvement with Falun Gong was equally vague and lacking in detail. While accepting that such a written statement may not be the place for an extended account of religious or philosophical beliefs or a history of religious activities and experiences, the Tribunal indicated that, in relation to what would have been a significant element of the applicant's life, it would have expected a more than minimal, vague and highly generalised account about a centrally important area of her claim, in particular that she claimed to have continued her faith despite having been arrested and brutally tortured. It found the vagueness of her account created significant doubt about her claims of Falun Gong involvement in China.
Secondly, it had regard to the absence of any claim that the applicant had practised Falun Gong or had contact with the Falun Gong movement or members in Australia and was not satisfied that she had ever done so. It found that this cast further doubt on her claim to be a Falun Gong practitioner.
The Tribunal also found that the applicant's claims to have suffered harm in China were brief, unsubstantiated and vague. It referred to specific details that were lacking in relation to issues that the Tribunal considered would have been important and dramatic events in the applicant's life.
Further, the Tribunal did not accept as credible the applicant's claim that as a Falun Gong practitioner who had suffered severe torture on account of her faith she would have been so uninterested in the Chinese government's treatment of Falun Gong practitioners during the time she was in Korea that she would not have known that Falun Gong was still banned until after she returned to China. Nor did it accept as credible her claim that an unnamed friend told her that the local police had decided to arrest her. In the absence of any further explanation, it was not satisfied that these claims were plausible.
The Tribunal indicated that it would have explored these issues with the applicant at a hearing and given her an opportunity to demonstrate her personal knowledge of Falun Gong practice and philosophy. It was unable to do so because the applicant did not attend the hearing, notwithstanding that in the hearing invitation the Tribunal had made it clear that on the invitation before it, it was not able to make a favourable decision. The tribunal found that the applicant's vague and unsubstantiated claims amounted to no more than simple assertions and did not provide a sufficient basis for it to be satisfied she had ever been a Falun Gong practitioner or had ever had any significant involvement with the Falun Gong faith or ever suffered any harm for this reason in China.
Having regarded to the fact that the claim to fear persecution was based entirely on the applicant’s claim to be a Falun Gong practitioner and the absence of any indication on the face of the claims that there was any reason to believe that she would suffer harm for any other Convention-related reason, the Tribunal found that the unsubstantiated, brief and vague Falun Gong claims did not provide sufficient ground for the Tribunal to have confidence in the claimed basis for the professed fear of persecution or to satisfy it that the applicant had ever suffered harm in China for this reason. The Tribunal concluded in the light of the evidence available to it that it was not satisfied that the applicant faced a real chance of harm amounting to persecution from the Chinese authorities because of any involvement with the Falun Gong faith either now or in the reasonably foreseeable future should she return to China. It was not satisfied that she had a well-founded fear of persecution for this or any other Convention-related reason.
The applicant sought review of the Tribunal decision by application filed in this Court on 6 December 2005. She did not file an amended application or written submissions. When given the opportunity to elaborate on her claims she merely indicated that she did not want to return to China and that if she did so she would be persecuted. In concluding submissions the applicant suggested that if the Tribunal had insufficient information she would be able to provide further information.
Grounds 2 and 3 of the application seek merits review in reiterating the applicant's claim to face a risk of being gaoled and that she was persecuted by the Chinese government because she was a Falun Gong practitioner. Such grounds do not raise, let alone establish, jurisdictional error but rather seek to engage the Court in a review of the factual merits of the applicant's claims. Merits review is not available in this Court (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
The first ground in the application is a generally expressed and unparticularised claim that procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed. In written and oral submissions the legal representative for the first respondent addressed the issue of whether there was any failure by the Tribunal to comply with procedures under the Migration Act or Regulations, in particular addressing the Tribunal's obligation to invite the applicant to a hearing, in relation to which reliance was placed on an affidavit of Jonathan Willoughby-Thomas sworn on 13 September 2007 and filed on 18 September 2007.
As submitted for the respondent and on the basis of the material before me, including that affidavit, I am satisfied that the invitation to hearing dated 7 September 2005 was addressed and sent to the address for correspondence provided by the applicant in her review application by registered post on 7 September 2005 and that in that way the Tribunal met its obligations in relation to a s.425 invitation under s.425A, having regard to s.441A and the requirements of reg 4.35D. Having complied with its statutory obligations there was no obligation on the Tribunal to take any further steps to attempt to contact the applicant (see Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 and SZHSQ v Ministerfor Immigration & Multicultural Affairs [2006] FCA 1295).
In any event, in this instance I note that as the Tribunal recorded, the applicant had not provided telephone or fax contact details and nor had she appointed a migration agent to act as her authorised adviser. In those circumstances, having complied with its obligation to invite the applicant to a hearing as required by s.425 and in circumstances where the applicant did not attend the hearing or contact the Tribunal to seek a postponement or explain her failure to attend, the Tribunal was entitled to proceed pursuant to s.426A of the Act to make a decision without taking further action to enable the applicant to appear before it.
The submissions for the respondent also address, and I have considered, whether there was any failure by the Tribunal to comply with s.424A of the Act as it stood at the relevant time. However, in this instance the reason for the Tribunal's decision was that based on the absence of evidence before it, it was unable to reach the required state of mental satisfaction that the applicant had a well-founded fear of persecution for a Convention reason. Not being able to be affirmatively satisfied that protection obligations were owed to the applicant, as explained by the Full Court of the Federal Court in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [13] – [17] the Tribunal had no option but to refuse to grant her the visa (also see VSAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1270). In such circumstances, consistent with what was said by Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 11 at [29] – [30], no s.424A obligation arose.
Moreover, insofar as the Tribunal referred to material within the applicant's protection visa application, not only was the substance of such claims put to the Tribunal by the applicant (see s.424A(3)(b)) in connection with the review application in a written statement but, moreover, the Tribunal's subjective appraisal of the material before it does not constitute information within s.424A (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at 17‑18 and Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at 54). Similarly, the Tribunal's subjective evaluation that elements of the applicant's claims were not credible does not constitute information for the purposes of s.424A insofar as it formed part of the Tribunal's subjective appraisals, thought processes and determination. No failure to comply with s.424A is apparent on the material before the Court.
As no jurisdictional error has been established, the application must be dismissed. The name of the first respondent should be amended as is sought.
The applicant has been unsuccessful and it is appropriate that the unsuccessful applicant meet the costs of the first respondent. The amount of $2,500 which is sought is at the lower end of costs that are sought in matters of this nature and I consider it is appropriate.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date:
9
1