SZHTH v Minister for Immigration

[2007] FMCA 773

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 773

MIGRATION – Review of decision of RRT – where no attendance by applicant before Tribunal – whether Tribunal reached required state of satisfaction.

Migration Act 1958, ss.48, 65, 417, 426A

SZEZI v Minister for Immigration [2005] FCA 1195

Applicant: SZHTH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3566 of 2005

Judgment of: Raphael FM

Hearing date: 2 May 2007

Date of last submission: 2 May 2007

Delivered at: Sydney

Delivered on: 2 May 2007

REPRESENTATION

For the Applicant: Applicant in person

Counsel for the Respondent: Ms  V McWilliam

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

3. The name of the First Respondent be changed to Minister for Immigration and Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3566 of 2005

SZHTH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. He arrived in Australia on 30 September 2004. On 11 October 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 16 May 2005 a delegate of the Minister refused to grant a protection visa and on 29 July 2005 the applicant applied for review of that decision. In his application for review found at [CB 50 - 54] the applicant gives as his mailing address to which correspondence about his application should be sent, an address in Campsie. He did not nominate any other person to receive information on his behalf. On 6 September 2005 the Tribunal wrote to the applicant at the address at Campsie, advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to attend a hearing on 5 October. There was no response to that hearing invitation and a checklist was done on 28 September [CB 59]. The applicant did not appear at the hearing and the Tribunal proceeded to decide the application pursuant to s.426A of the Migration Act 1958 (the “Act”).  On 12 October 2005 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 1 November 2005.

2. The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations were that he was a practitioner of Falun Gong and one of the leaders of the Falun Gong organisation in his city.  He claimed that he had been detained by the police for almost three months in his home city, was tortured and forced to declare a separation from the Falun Gong movement.  He claims that he did not see anything wrong with Falun Gong and continued to practice it secretly after he was released.  He had received a number of warnings from the local police and visits to his home and his work unit.  The applicant tells that he had received information that the police were planning to put him in gaol for two years and so he borrowed 60,000 RMB to bribe a government officer to issue him a passport and obtain a visa to Australia.  The information of the kind here set out is almost all of the information that was before the Tribunal when it came to consider the applicant’s case.  In its findings and reasons the Tribunal pointed out that there were a number of concerns which it had with the applicant’s account.  It indicated that it would have expected the applicant to provide more than the:

   “Minimal, vague and highly generalised account he offers about [the three months detention and torture for his faith].  The Tribunal finds that the vagueness of the applicant’s account creates significant doubts about his claims of Falun Gong involvement in China.”

3. The Tribunal also expressed concern that the applicant had not indicated any continuing involvement in Falun Gong whilst in Australia and noted that he had given no information as to the nature of the accusations made against him and other matters.  In [CB 72] the Tribunal says:

   “The Tribunal would have explored these issues with the applicant at the hearing and would have offered him the opportunity to demonstrate his personal knowledge of Falun Gong practice and philosophy.  It was unable to do so because the Applicant did not attend the hearing on the date and at the time and place which was scheduled notwithstanding that in its hearing invitation letter of 6 September 2005 the Tribunal had made it clear that on the information before it the Tribunal was not able to make a favourable decision.  The right to give oral evidence is an applicant’s to exercise or waive as he or she chooses and no adverse inference is drawn by the Tribunal from a decision to forego that right.  However, where an applicant does not attend a hearing, the Tribunal has only the information contained in the written material before it from which to make a determination.  The Applicant’s vague and unsubstantiated claims do not provide a sufficient basis for the Tribunal to be satisfied that he has ever been a Falun Gong practitioner, or leader, or has ever had significant involvement with the Falun Gong faith, or that he has ever suffered any harm for this reason in China.”

4. It has been said many times before that it is for the applicant to make out his own case to the requisite standard of satisfaction. It has also been said that the Tribunal is not required to make any positive findings concerning an applicant’s claims before coming to a conclusion that it has not reached the state of satisfaction that s.65 requires. This is all that has occurred in this case and there is no jurisdictional error in the way in which the Tribunal expressed its concerns. As Allsop J said in SZEZI v Minister for Immigration [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. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.”

5. Whilst his Honour was there referring to a submission concerning s.424A of the Act his views about the requirement to reach a specified mental state apply equally in this case.

6. The applicant appeared in person before me. At first he told me that he had difficulty in putting forward any grounds as to why the Tribunal had made an error of law in the way in which it reached its conclusion. After hearing the articulate submissions of Ms McWilliam he told me that one of his friends had put the application in for him but then had returned to China so that when he got the letter from the Tribunal requesting that he attend for an interview he did not understand what it was about and so he missed the opportunity to attend and to explain his situation. This is a most unfortunate situation but does not cause the Tribunal’s decision to be one made in jurisdictional error. The applicant can put his case to the Minister for a more favourable decision under s.417 or for another opportunity to make an application under s.48B.

7. I dismiss the application.  I order that the applicant pay the first respondent’s costs which I assess in the sum of $4,000.  I order that the name of the first respondent be changed to the Minister for Immigration and Citizenship.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: