SZHYK v Minister for Immigration

[2007] FMCA 2039

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYK v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2039

MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth) ss.422B, 424, 425, 425A, 426A

Abebe v Commonwealth (1999) 197 CLR 510
Dranichnikov v The Minister (2003) 197 ALR 389
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Applicant: SZHYK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3813 of 2005

Judgment of: Barnes FM

Hearing date: 27 November 2007

Delivered at: Sydney

Delivered on: 27 November 2007

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms Jowett

Solicitors for the Respondent: Blake Dawson

ORDERS

1. The title of the first respondent be amended to read "Minister for Immigration & Citizenship". 

2. The application be dismissed.

3. The applicant pay the costs of the first respondent fixed in the sum of $2,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3813 of 2005

SZHYK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 15 November 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, a citizen of the People's Republic of China, arrived in Australia in June 2005 and applied for a protection visa. He provided a statement in connection with his protection visa application and a further statement to the Tribunal dated 24 August 2005 after his application was refused by a delegate of the first respondent. He claimed in essence to fear persecution from the government of the People's Republic of China because he had protested against a lack of compensation in respect of the acquisition (or revocation) of his land and livelihood by the government. He claimed that he owned what he described as a piece of “pound” which he used to raise fish and which was his only main source of income. He also claimed that the government owned the land and recently had, as he put it, “ceased his pound” because they wanted to develop tourism on the land. He claimed that he was forced to undertake legal action against the government and also that he openly protested in front of a government office. 

3. The applicant claimed that he was given very little compensation by the government and that that compensation was subject to a system of unofficial tax. This was said to be evidence of the government abusing and exploiting its power. The applicant claimed that his protest actions were to draw the attention of the public, to indicate that the government was corrupt and that it abused its power. His success was said to be so great that it had sparked fear into the government and threatened its public image. He claimed that the government had sent him to prison as a threat or ultimatum to deter him from his protest action and that after his release the local authority threatened him and his family that they would be imprisoned again if he continued protesting. However, he claimed he continued to approach the government on several occasions and that most times this resulted in him being imprisoned and then fined. As it was impossible to reach a solution to this problem, he claimed that his only alternative was to leave China.

4. In the statement accompanying his application for review of the decision of the delegate he added that he did not provide any evidence in written form as he did not know it would be necessary, but that he would try to collect such evidence and that he could provide oral evidence. He claimed that if he returned to China his situation would be made worse and government officials would persecute him. 

5. In his application for review by the Tribunal the applicant provided only one contact address, that being a residential address in Australia which was also said to be his address for correspondence. He did not provide a telephone contact number.  Nor did he appoint an adviser or authorised recipient. The Court Book contains a copy of a letter addressed to the applicant at the address provided in his application for review in which the Tribunal stated that it had considered the material before it in relation to his application but that it was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to a hearing at a date, time and place specified and advised that if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice. It also reiterated the advice given in the review application acknowledgement letter that the applicant should send the Tribunal any documents or information it wanted the Tribunal to consider. 

6. In its reasons for decision the Tribunal stated that it had so written to the applicant on 14 September 2005, that no response had been received and that the applicant did not appear before the Tribunal on the day, time and place at which he was scheduled to appear. It also recorded the absence of any telephone contact number or authorised recipient.  It found that there was nothing to indicate that the applicant did not receive the letter inviting him to attend a hearing. The Tribunal also observed that the applicant had not contacted the Tribunal to explain his failure to appear. The Tribunal stated that it was satisfied that it had done all it was required to do and all that it could do to discharge its duty to invite the applicant to a hearing, that there was nothing to indicate the applicant had not in fact received the letter of invitation sent to him at his nominated address and that the Tribunal had no alternative means of contacting him. 

7. 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.

8. The Tribunal summarised the applicant's claims in his protection visa application and application for review. It accepted, on the basis of his passport, that he was a national of the People's Republic of China. It described the applicant's claims as vague and somewhat difficult to understand and then summarised its understanding of those claims. In particular, it set out that it appeared that the applicant claimed to fear persecution for reason of his political opinion or a political opinion imputed to him by the Chinese authorities as a result of protest activity he undertook following the seizure without adequate compensation of land he owned which deprived him and his family of their livelihood. The Tribunal continued that:

   While at face value such claims might establish that the applicant has a well-founded fear of persecution, the applicant in this case has not provided sufficient information to enable me to be satisfied that he has made out his claim. 

9. The Tribunal referred to the fact that it is for an applicant to satisfy the Tribunal that the elements of the Refugees Convention are made out and to the fact that the applicant had been put on notice that the Tribunal was unable to decide his application favourably, but had not taken the opportunity to provide additional information or to attend a hearing and give evidence about his claims. The Tribunal found that there were significant matters (which it detailed) about which the applicant had provided insufficient evidence to enable it to be satisfied as to whether he met the requirements of the Refugees Convention. 

10. The Tribunal elaborated on the lack of clarity in the basic facts of the applicant’s grievance, and as to whether the land was owned by him or by the government in relation to his claim of compensation. It also referred to a lack of information in relation to the applicant’s sources of income, the legal action he claimed he took or his protest activity. The Tribunal also had regard to an absence of information in relation to the applicant’s claims to have been imprisoned a number of times, in particular information as to when, how often, how long, on what basis he was imprisoned and in what circumstances he was released. The Tribunal stated that it also had questions as to how the applicant was able to fund and organise his travel to Australia, given his other claims about the events leading up to his departure.

11. Given the absence of any detail as to the dates of the various events described or the time frame, the Tribunal found that it was unable to be satisfied that the applicant was still protesting and still of interest to the authorities at the time of his departure. Nor was it clear on the basis of the information provided whether or why the applicant would still be subjected to persecution if he returned to the PRC.

12. The Tribunal concluded that given what it described as the scanty and confusing information provided by the applicant, it was not satisfied he was regarded by the authorities as a dissident prior to or at the time of his departure from China. Nor was it satisfied that he was subjected to persecution for this reason prior to his departure, or that if he were to return to the People's Republic of China there was a real chance he would be subjected to mistreatment amounting to persecution for reasons of his political opinion or activities or a political opinion imputed to him. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. 

13. The applicant sought review of the Tribunal decision by application filed in this Court on 22 December 2005. He also filed an affidavit in which he reiterated the grounds raised in his application. He has not filed any amended application or written submissions. While he sought an adjournment of the hearing today in order to put further documents before the Court, it emerged that such documents related to his situation in China and hence would not be of assistance to the Court in determining whether the Tribunal in this instance made a jurisdictional error. His application for an adjournment was refused. 

14. There are two grounds in the application that involve a number of issues. The first is that the Tribunal made an “error within the jurisdiction of the law.” This is clarified by the particulars. It is contended first that the Tribunal failed to obtain current country information in relation to a matter on which it based its decision and hence failed to accord procedural fairness to the applicant and “misconceived its obligations per s.424” of the Migration Act 1958 (Cth).

15. This is not, however, a case in which the decision of the Tribunal turned in any way on country information. The applicant failed because the Tribunal was unable, on what it described as the scanty and confusing information before it, to be satisfied that the applicant met the criteria for a protection visa. In those circumstances, the claim in relation to country information does not establish jurisdictional error. 

16. It is for an applicant to satisfy the Tribunal that he or she is a person to whom Australia owes protection obligations (Abebe v Commonwealth (1999) 197 CLR 510) and insofar as it is suggested that the Tribunal was under an obligation to make inquiries to obtain country information, this is not a case in which such an obligation arose. The Tribunal did not base its decision on country information, but rather on a lack of evidence and its consequential lack of satisfaction that Australia owed the applicant protection obligations.

17. The Tribunal is not obliged to conduct its own investigations and nor is it required to accept the applicant's claims uncritically (Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559). I note in that respect that in his submission to the Tribunal the applicant had indicated that he would try to collect some evidence and could provide oral evidence. He did not do so and it cannot be said that the Tribunal failed to accord him procedural fairness in failing to make its own inquiries in relation to his claims, whatever the effect of s.422B of the Migration Act.

18. The applicant's purported reliance on s.424 of the Act appears to be misconceived. Section 424 provides in sub-s.(1) that in conducting the review the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information it must have regard to that information in making the decision on the review. This is not a case in which the Tribunal proceeded in a manner which gave rise to the obligation in s.424 to have regard to information that it had obtained. As set out above, it did have regard to the evidence before it, consisting of the copy of the applicant's passport and the two statements the applicant had made in connection with his claims.

19. It is then generally asserted in the second particular of this ground that the Tribunal made an error in terms of procedural fairness in relation to this case. Neither that general assertion or the more specific particular in relation to country information and s.424 establishes jurisdictional error. While this claim is put in terms of procedural fairness rather than a failure to comply with the procedures required of the Tribunal under the Migration Act, I note for the sake of completeness that there is no suggestion by the applicant and there is nothing in the material before the Court to suggest that there was any failure by the Tribunal to comply with its obligations under Division 4 of Part 7 of the Act, in particular its obligations under s.425 and s.425A to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review or its obligation under s.424A.

20. I also note in that respect that the Tribunal considered, in accordance with s.426A, whether it should make the decision on the review without taking further action to allow or enable the applicant to appear before it. There is nothing in the material before the Court to indicate any jurisdictional error in the manner in which the Tribunal met its obligations or considered its discretion under s.426A of the Act.

21. The second ground in the application is that the Tribunal “denied access to the nature of Justice.” The first particular is that the Tribunal made an error of law that was material to the exercise of its jurisdiction in determining whether it was satisfied that the applicant had satisfied a criterion for a protection visa. This ground was not addressed in oral submissions. There is nothing in the material before the Court to support this general contention that the Tribunal made an error of law.

22. Nor is there anything in the material before the Court to support the second particular, which is that the Tribunal denied to the applicant natural justice in that "it based its decision without took (sic) proper investigate". I understand this to be a contention that the Tribunal was under an obligation to conduct an investigation which it failed to do (the example given being that the Tribunal failed to understand “land documents issue in PRC”).

23. Insofar as this is intended to be a contention that the Tribunal was under an obligation to investigate issues of land ownership, use and entitlement in China, it does not establish jurisdictional error. The Tribunal, as indicated, was under no obligation to conduct its own investigations in the manner that appears to be contended. As set out above, it is for an applicant to advance his own case and it is for the Tribunal then to determine whether the elements of the Refugees Convention are satisfied. 

24. While, as Callinan and Gummow JJ stated in Dranichnikov v The Minister (2003) 197 ALR 389 at [78], the Tribunal acts in a generally inquisitorial way, their Honours clarified that this does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out and find any available basis which theoretically the Act provides for relief. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances. There is nothing in the material before the Court to suggest that this was a case in which the Tribunal undertook or was in any way under an obligation to make further inquiries, (for example, in the manner considered by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155).

25. Insofar as this ground is intended to be a contention that the Tribunal failed to understand land documents “issued” in the PRC, as was contended for the first respondent, again such a contention does not establish jurisdictional error. The Tribunal states in its decision that there were certain matters on which the evidence before it was scanty and confusing and that there was a lack of clarity in relation to the basic facts of the applicant's original grievance with the government and whether the land was owned by him or by the government.  In those circumstances, where the applicant did not attend the Tribunal hearing, and the Tribunal was unable to be satisfied on the limited information before it that the applicant met the criteria for a protection visa, no jurisdictional error has been identified in the decision or procedures of the Tribunal. 

26. Accordingly, the application should be dismissed. The title of the first respondent should also be changed to "Minister for Immigration & Citizenship" as sought by the first respondent. 

27. The amount of costs which is sought ($2,500) is at the lower end of the scale of amounts normally sought in such cases. I consider it is appropriate in light of the nature of this and other similar matters.

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

Associate: 

Date: