SZIAJ v Minister for Immigration

[2006] FMCA 1878

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIAJ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1878

MIGRATION – Review of Refugee Review Tribunal decision – failure to appear at Tribunal hearing – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss.425A, 441A, 474
Migration Regulations 1994 (Cth), r.4.35B

Applicant: SZIAJ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 17 of 2006

Judgment of: Turner FM

Hearing date: 7 December 2006

Date of Last Submission: 7 December 2006

Delivered at: Sydney

Delivered on: 7 December 2006

REPRESENTATION

The applicant appeared in person

Solicitor for the Respondent: Ms K. Hooper of DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The Court orders the applicant to pay the costs of the first respondent in these proceedings fixed at $3500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG17 of 2006

SZIAJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application, filed on 3 January 2006, seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate to the Minister not to grant the applicant a protection visa. 

2. The applicant was born on 8 October 1971 and is a citizen of the Peoples Republic of China and of Buddhist faith. 

3. The applicant arrived in Australia on 27 July 2005 on a visitor's visa which had been issued in Beijing. 

4. The applicant lodged an application for a protection visa with the Minister for Immigration and Multicultural Affairs on 4 August 2005.  In this application she claimed fear of persecution based on her involvement in the Falun Gong movement.  The applicant claimed that because of her involvement with the Falun Gong, she was arrested, interrogated, and taken to a labour re-education centre.  She continued to practice Falun Gong and was badly beaten on one occasion.  The applicant was released in 2004 after signing an agreement that she would not practice Falun Gong any longer.  The applicant continued to practice Falun Gong at her home,  and the authorities found out and returned her to the centre. 

5. The application for a protection visa was refused by a delegate for the Minister on 16 August 2005.  On 16 September 2005, the applicant filed an application for a review of a decision of the Minister's delegate with the Refugee Review Tribunal.  On 7 October 2005, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application, but that it was unable to make a decision in her favour on this information alone. 

6. The Tribunal invited the applicant to give oral evidence and present argument to the hearing on 10 November 2005.  The applicant was advised that if she did not attend the hearing, and a postponement was not granted, the Tribunal may make a decision without further notice (Court Book (“CB”) 70).  A response to the hearing and invitation form was received by the Tribunal on 7 November 2005 (CB 72).  The applicant has told the Court that she signed that response, which includes an answer that she did not want to come to the hearing.  The applicant said she did not want to come to the hearing because she was afraid of what might happen to her at that hearing. 

7. The Court finds that answer to be inconsistent with the applicant's submission to the Court that she missed the hearing because she got off at the wrong train station.  The letter to her on 7 October 2005 stated that the Tribunal could make a decision without further notice to her if she did not attend that hearing.  The applicant did not appear before the Tribunal (CB 84).

8. The Tribunal handed down its decision on 1 December 2005, and that decision is dated 11 November 2005.  The decision affirmed the decision of the Minister's delegate refusing to grant the applicant a protection visa.  In considering the applicant's claims the Tribunal made a number of findings including the following (at CB 84):

   The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is well founded, or that it is for the reasons claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.  Although the concept of onus of proof is not appropriate for administrative inquiries and decision making the relevant facts of the individual case will have to be supplied by the applicant herself - 

   (The actual decision says "himself" but the Court reads “herself”)

   in as much detail as is necessary to enable the examiner to establish the relevant facts.  The decision maker is not required to make all the applicant's case for him nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant.

   (There were then a number of cases referred to which were included in the decision).

   The High Court has emphasised in the Minister v Bru Shang Leang and Guo, referred to above, that the law requires that the Minister or this Tribunal on review must be satisfied that the person is a refugee.

9. The Tribunal's decision continued:

   As the applicant did not attend an oral hearing her claims could not be tested by the Tribunal.  The Tribunal only has the information contained in the written material before it from which to make a determination.

   The applicant's claims relate to her involvement with Falun Gong which she commenced in or about 1995.  She became involved in the practice of Falun Gong in a group and eventually she became a leader of a group of six.  In July 1999 police arrested the applicant and others in her group.  She confessed her role.  She was taken to a later re-education centre and she was required to do heavy work and attend lessons.  She practised Falun Gong at the centre on one occasion and was beaten badly.  The applicant was released one month before the Spring Festival 2004 after signing an agreement that she would not practice Falun Gong any further and that she would obey every principle and regulation.  At her home she kept practising Falun Gong.  The authorities found out and took her back to the centre.  On 26 July 2005 the applicant departed the Peoples Republic of China.

10. To further quote the Tribunal decision (CB 85):

    There is nothing to support these claims other than the applicant's unsubstantiated assertions.  There are insufficient particulars provided by the applicant to enable the Tribunal to be satisfied that these events occurred or that the applicant is a Falun Gong practitioner and because she did not attend the hearing the Tribunal has been unable to test her credibility in this regard.  Therefore, the Tribunal is unable to be satisfied that the applicant was or is a Falun Gong practitioner, or that she was detained for several years, treated badly and detained again.  Further, the Tribunal is unable to be satisfied that the applicant was subjected to serious harm by the PRC authorities. 

    Accordingly, the Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of persecution should she return to the Peoples Republic of China now or in the foreseeable future. 

    The Tribunal is unable to be satisfied, on the evidence before it, that the applicant has a well founded fear of persecution for a convention reason. 

    Accordingly, the Tribunal is not satisfied that the applicant is a refugee. 

Application

1. In her application, the applicant set out three grounds as follows:

   (1) The Department of Immigration officer did give me a chance to support my claims after my protection visa application was lodged.  However, there was not enough time given.  It is extremely difficult to get evidence from China and I am afraid my family and friends would get into tremendous trouble if they assist me to collect the required evidence in China where I was persecuted.  Moreover it took me quite some time to settle after I arrived in Australia due to language and other difficulties.  It is impossible to provide the required evidence within such a short period of time. 

2. In relation to this ground the Tribunal found the following:

   That the applicant arrived in Australia on 27 July 2005; that the applicant lodged an application for a protection visa on 4 August 2005;  That application was refused on 16 August 2005;  The applicant filed an application for review on 16 September 2005.

3. The Tribunal wrote to the applicant on 7 October 2005 (a copy of that letter is at CB 70) advising the applicant that it was unable to make a favourable decision for a decision in her favour on this information alone.  The letter invited the applicant to give oral evidence and present arguments at a hearing on 10 November 2005.  The letter, therefore, gave the applicant 32 days clear notice of the hearing.  The law requires that 14 days notice be given of the hearing (Migration regulation 4.35). 

4. The Act requires that the date of hearing be specified in that letter. It is clear that the date of hearing was specified as 10 November 2005 (CB 70). Section 425A of the Migration Act 1958 (“the Act”) was therefore complied with. The Act requires that the letter state that if the applicant does not appear the Tribunal may proceed to make a decision without taking further action to allow or enable the applicant to appear. A statement to that affect was included in the letter.

5. The applicant advised the Tribunal that she did not want to attend the hearing and has stated to this Court that she signed the response to hearing invitation which is at page 72 of the Court Book.  That response included a statement which says, "I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it”.

6. It is important to note in this context, paragraph 1 of the letter on CB 70, which is the letter dated 7 October 2005 to the applicant reads:

   The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

7. The applicant was, therefore, told by the Tribunal that it did not have enough information before it to make a decision in her favour. The applicant then decided not to attend the hearing. The Court finds a letter had been given to the applicant by a method prescribed in s.441A of the Act. The applicant complains in ground 1 that there was not enough time given to collect the evidence she required. However, the applicant was invited to attend the hearing before the Tribunal and she decided not to attend. She denied herself the opportunity to put submissions and to seek an extension of time. There has been no evidence presented to the Court that she sought any extension of time, and the Court notes that there is no obligation to give an extension of time to collect further material.

8. The Court finds that the applicant was accorded procedural fairness. The Court finds no breach of the law raised by ground 1, and the Court finds no denial of natural justice raised by ground 1.  The Court rejects ground 1. 

9. Ground 2 states that the applicant thought she would be detained if she attended the Tribunal hearing. The applicant says that if the Tribunal had guaranteed that she would not be detained she would have attended and provided more evidence. The Court notes that that is inconsistent with the claim in ground 1 that the applicant did not have sufficient time to obtain more evidence. The Court finds there is no obligation on the Tribunal to give such a guarantee. The applicant has not provided any cogent reasons in support of her fear of appearing before the Tribunal. The Court finds that that alleged fear had no rational basis. The Tribunal complied with the law by writing to the applicant inviting her to attend the hearing in the way that it did. The relevant provisions of the Act and the Regulations have already been referred to. The Court finds that no error of law was made and the Court finds no denial of procedural fairness in this ground. The Court rejects ground 2.

10. As to ground 3, the applicant complains about the material which the Tribunal referred to in reaching its decision.  The applicant was invited to attend the hearing but declined.  In reaching its decision the Tribunal made reference to country information about China. 

11. The reasons for the Tribunal's decision related to the insufficiency of the evidence before it. The Tribunal found that “as the applicant did not attend an oral hearing her claims could not be tested by the Tribunal.  The Tribunal only has the information contained in written material before it from which to make a determination” (CB 84), and also that “there is nothing to support these claims other than the actual unsubstantiated assertions.  There are insufficient particulars provided by the applicant to enable the Tribunal to be satisfied that these events occurred or that the applicant is a Falun Gong practitioner, and because she did not attend a hearing the Tribunal has been unable to test her credibility in this regard, therefore, the Tribunal is unable to be satisfied that the applicant was or is a Falun Gong practitioner or that she was detained for several years, treated badly, and detained again” (CB 85). 

12. The Tribunal continued, stating they were “unable to be satisfied that the applicant was subjected to serious harm by the Peoples of Republic of China authorities.  Accordingly, the Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of persecution should she return to the People’s Republic of China now or in the foreseeable future.  The Tribunal is unable to be satisfied on the evidence before it that the applicant has a well founded fear of persecution for a Convention reason”. 

13. These passages demonstrate that the reason for the Tribunal's decision was the insufficiency of evidence before it.  The Court finds that there was no error of law in relation to ground 3.  There was no denial of natural justice in relation to ground 3.  The Court, therefore, rejects ground 3 and having done so rejects all three grounds for the application for judicial review. 

14. The Court finds that the decision of the Tribunal is a privative clause decision and has not been affected by jurisdictional error. In such circumstances and pursuant to s.474 of the Act there is no jurisdiction for this Court to interfere.

15. The application is dismissed. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:  Dian Neligan

Date:  20 December 2006