SZIAE v Minister for Immigration
[2006] FMCA 1735
•15 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIAE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1735 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution as a Falun Gong practitioner – where applicant did not attend Tribunal hearing – no breach of Migration Act 1958 (Cth), ss.424A, 425 or 426A – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A, 425, 426A |
| SZEZI v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 11 SZCIA v Minister for Immigration & Multicultural and Indigenous Affairs [2006] FCA 238 SJSB v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 225 VSAF v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 1270 NAST v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 208 NADR v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 167 NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 10 Attorney-General (NSW) v Quin (1990) 170 CLR 1 SZDXC v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1306 SZBKB v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1811 |
| Applicant: | SZIAE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 8 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 November 2006 |
| Date of last submission: | 15 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Quinn |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,000.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 8 of 2006
| SZIAE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal handed down on 29th November 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.
Background
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 6th March 2005 and on the 31st applied for a Protection (Class XA) visa. On 27th June 2005 a delegate of the Minister refused to grant the visa and on 28th July 2005 the Applicant applied for a review of that decision.
The Refugee Review Tribunal Hearing
The Applicant lodged his application for review at the Sydney Registry of the Refugee Review Tribunal on 28th July 2005. He did not provide any telephone numbers but provided a residential address and indicated that he would need an interpreter in the Mandarin language. Although he gave a residential address in a suburb of Sydney, he gave a mailing address at a box number in Pitt Street, Sydney. The Applicant did not nominate any person as an authorised recipient and did not nominate any person as a migration agent to act as his adviser.
He provided a typed statement with his application for review in which he set out this claim; which I will repeat verbatim:
I was a Falun Gong practitioner and one of leaders of a Falun Gong organisation in Shandong. In 1997 I started to learn Falun Gong from my friends because he told me that Falun Gong exercise can improve my health. After three months' exercise my body was greatly boosted. Since then I have been fascinated by Falun Gong. I introduced Falun Gong to my relatives and my friends.
In the end of 1999, the Chinese authority outlawed Falun Gong all over the country. I was detained by the police for almost one month in Qindao City, Shandong Province, tortured by the policemen. I was also forced to declare separation from Falun Gong. After I got released, the only thing for me to do was to report my situation to local police station every day.
A copy of that statement can be found at page 55 of the Court Book.
The Tribunal wrote to the Applicant on 7th October 2005. The letter told the applicant that the Tribunal 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 letter invited the Applicant to attend the hearing on Thursday 3rd November 2005. The letter enclosed a Response to Hearing Invitation Form and asked the Applicant to fill it in and return it by 25th October 2005. A copy of that letter can be found at pages 59 and 60 of the Court Book.
On 26th October an officer of the Refugee Review Tribunal completed a "No Reply to Hearing Invitation Checklist". The Checklist established that the officer had checked to see whether a reply had been received by the Tribunal but not yet attached to the file. The officer had checked that the invitation was sent to the appropriate address and checked the movement database to ensure that the Applicant was not recorded as having left Australia. A copy of that Checklist can be found at page 61 of the Court Book.
The Tribunal’s Findings and Reasons
The Tribunal signed its decision on 4th November 2005 and handed it down on 29th November 2005. A copy of the decision record appears at pages 65 to 70 inclusive of the Court Book. The Tribunal noted at page 68 that the Applicant had been invited to give oral evidence and present argument to the hearing on 3rd November and that no response had been received and the Applicant had not appeared before the Tribunal. The Tribunal exercised its power under s.426A of the Migration Act to make its decision on the review about taking further action to enable the Applicant to appear before it.
The Tribunal considered the information provided in the protection visa application and considered the copy of some pages of the Applicant's passport in which Malaysian and apparently Thai visas appeared.
The Tribunal set out its findings and reasons, which are necessarily brief, on page 69 of the Court Book. The Tribunal said:
In this case the Tribunal accepts that the Applicant is a citizen of the PRC as claimed and as supported by a copy of some pages from his PRC passport. The Applicant claims to fear persecution on return to China because he is a Falun Gong practitioner and was a leader of a Falun Gong organisation in Shandong. However the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention. This is because the Tribunal finds the Applicant's claims extremely general and lacking in useful detail.
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution within the meaning of the Convention and was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol. Accordingly, the Applicant did not satisfy the criterion set out in sub-s.36(2) of the Act for a protection visa.
The Application for Judicial Review
The Applicant sought review of that decision by means of an application and an affidavit filed on 3rd January 2006. At a First Court Date, a Registrar of the Court originally listed the application for final hearing before another Federal Magistrate on 8th November 2007. However, the application has been transferred into my docket and I listed it for final hearing today. The parties were informed in writing of the change in the hearing date and time.
The Applicant has filed an amended application which he did on 19th April 2006. He seeks an order requiring the Tribunal to determine the application according to law. He sets out three grounds of the application. They do not, to my mind, set out any jurisdictional error on the part of the Tribunal. Each one of them is a statement about the Applicant's history as a Falun Gong practitioner and about the troubles that he says he experienced from 1999 onwards after the Chinese authorities outlawed the practice of Falun Gong and he was detained by police.
The Applicant was offered the opportunity to make an oral submission to the Court about whether jurisdictional error had been made out.
He told the Court that he was unsure of what to say and in fairness to him I note that he is not legally represented.
I have considered the written outline of submissions prepared by the solicitors for the First Respondent Minister. It is submitted that the reason for the Tribunal's decision was that 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 because of the lack of evidence before it. It is submitted that in those circumstances no obligations under s.424A of the Migration Act apply and I am referred to the decision of SZEZI v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 11 at [29] – [30] and also SZCIA v Minister for Immigration & Multicultural and Indigenous Affairs [2006] FCA 238.
The submission also goes that as the Tribunal was not able to be affirmatively satisfied that protection obligations were owed to the Applicant it therefore had no option but to refuse to grant him a protection visa. I am referred to SJSB v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] and also VSAF v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 1270. The contentions by the First Respondent solicitors, to which I have referred, appear to me to be correct.
It is further submitted that whilst the Tribunal referred to material within the Applicant's protection visa application, it was the identified deficiencies and noted inadequacy of the Applicant's evidence and claims that formed the reason or part of the reasons for the decision.
I am of the view that that submission is correct. I am also referred to the decision of NAST v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]- [5] where it was observed that the Tribunal is entitled to list a number of significant matters of which it would have liked to satisfy itself at the hearing and in the case where the Tribunal is not satisfied that an applicant has a well-founded fear of persecution, it is bound to affirm the decision not to grant a protection visa.
The First Respondent submitted that there were no other possible jurisdictional errors apparent in that the tribunal had complied with its obligations under ss.425 and 425A of the Act in inviting the Applicant to attend the hearing.
The further submission is - and I believe it is correct - that the application and the amended application are clearly an attempt to engage the Court in merits review of the Tribunal decision. Decisions on the merits of the Applicant's claim are matters for the Tribunal and are not susceptible to judicial review by the Court. I am referred to NADR v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 167 and NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 10 and Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [39] per Brennan J.
Conclusion
I am mindful of the fact that the Applicant is not legally represented.
I have made my own consideration of the material independent of the Applicant's application in order to satisfy myself that no jurisdictional error appears. In my view the tribunal did comply with its obligation under s.425 of the Migration Act to invite the Applicant to attend the hearing because it was unable to make a decision in the Applicant's favour on the information that it had.
The invitation was sent out on 7th October to a hearing on
3rd November. In my view the time set by the Tribunal was appropriate and no error appears. It appears to me that the Tribunal forwarded the invitation to hearing to the address given by the Applicant and it was entitled to exercise its power under s.426A of the Act to proceed to make a decision on the review without taking further action to enable the Applicant to appear before it due to the fact that the Applicant just did not appear at the hearing nor did he contact the Tribunal to say that he was unable to attend. The Applicant confirmed that he did not attend the hearing; saying that he had been sick. He confirmed that he did not contact the Tribunal.
There is no breach of s.424A of the Migration Act. The Applicant had provided some material with his application for review, setting out a basic summary of his case. There is no information that the Tribunal referred to which called on the Tribunal to give the Applicant an opportunity to comment on it under the provisions of s.424A.
The reason why the Tribunal affirmed the delegate's decision was that there was insufficient evidence for it to be affirmatively satisfied that the Applicant met the criterion for a protection visa which is that one has to be a person to whom Australia has protection obligations under the Refugee's Convention as amended by the refugee protocol.
The information before the Tribunal was not sufficient to enable the Tribunal to make any findings of fact that would allow the Tribunal to find that the Applicant met that criterion.
It is all too frequent that applicants seek judicial review of decisions of the Refugee Review Tribunal when they have not attended the hearing of the Tribunal. It is hardly surprising that their applications for judicial review do not succeed because it is hardly surprising that their applications for review by the Tribunal do not succeed when they have not attended the hearing. This situation has been considered in many cases, including SZDXC v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1306 and SZBKB v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1811, both of which are decisions on appeal from the Federal Magistrates Court.
In SZDXC v Minister for Immigration & Multicultural and Indigenous Affairs, Hely J said at [16]:
The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant's favour on the basis of the information before it and as the Full Court observed in NAVX v Minister for Immigration & 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 the rejection of his application.
In my view, based on the paucity of material before the Tribunal in this case, the unsurprising consequence was the Tribunal's decision that it was not satisfied that the Applicant met the criterion for protection visa.
There is no jurisdictional error that I can discern. The decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. It is final and conclusive and it is not subject to certiorari, declaration, injunction, mandamus or prohibition. The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The amount sought is $2,000.00. The Applicant says that he has no money. That is unfortunate but it is not of itself a ground for declining to make an order for costs in favour of a successful party. This is a matter where it is appropriate to make a costs order as the Applicant has been wholly unsuccessful in his claim. The amount sought, namely $2,000.00, is to my mind well within the appropriate range. I propose to make an order for costs in favour of the First Respondent in the sum of $2,000.00. I will allow a short period of time to pay.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 23 November 2006
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