SZIBH v Minister for Immigration

[2006] FMCA 1530

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIBH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1530

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

Migration Act 1958, ss.426A, 476

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
Minister for Immigration & Multicultural & Indigenous AffairsvVSAF of 2003 [2005] FCAFC 73

Applicant: SZIBH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG61 of 2006

Judgment of: Barnes FM

Hearing date: 9 October 2006

Delivered at: Sydney

Delivered on: 9 October 2006

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application is dismissed.

2. That the applicant pay the costs of the first respondent, fixed in the sum of $4200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG61 of 2006

SZIBH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

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 (the Tribunal) handed down on 13 December 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant, who claimed to be a citizen of the People’s Republic of China, arrived in Australia in July 2005. 

   
   

   In August 2005 she applied for a protection visa.  In the statement attached to her application she set out her claims to fear persecution in China by reason of her alleged religious activities as a Christian. 

   
   

   In particular the applicant claimed that she had been introduced to a family at a Christian gathering in 1995 and since that time had been attending Christian services regularly at a private home.  She claimed that in 1996 she went to an official church but that she stopped attending as she “noticed” the priest and the church were tools of the Communist Party.  She claimed that her house became the congregation spot for others but that in April 1997, during a Christian congregation, police officers broke into her house and accused those present of having an “illegal, evil religious gathering”. 

2. She claimed that she and the rest of the congregation were arrested, interrogated and abused at the premises of the Public Security Bureau, that she was forced to sign a prepared statement promising never again to have a house gathering and that her husband was told to pay a fine.  She claimed that after this time the home gatherings were held in different places and disguised as social gatherings. 

3. Her application was refused and she sought review by the Tribunal, providing a further statement in support of her application in which she also claimed that she was a Jehovah's Witness. 

4. In her application for review the applicant gave a residential address as her address for correspondence.  She did not nominate an adviser or other authorised recipient.  Relevantly, the Tribunal wrote to the applicant on 21 October 2005.  The letter was addressed to the address provided in the review application.  That letter advised the applicant that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone.  It invited her to attend a hearing on 16 November 2005 at a time and place specified, advised that she could ask the Tribunal to take oral evidence from others and asked her to send any new documents or written documents she wanted the Tribunal to consider.

5. There is no material in the documents before the Court nor is it suggested, that the applicant provided any further documents or written material to the Tribunal, other than a response to hearing invitation form in which she indicated that she did wish to attend the Tribunal hearing.  However the Tribunal reasons for decision record that the applicant did not attend the hearing on 16 November 2005 or contact the Tribunal to explain her failure to attend.  The Tribunal recorded that an officer contacted the applicant on 16 November 2005 and spoke to her with the assistance of a telephone interpreter and that the applicant advised that she did not want to attend the hearing.  This is consistent with a Tribunal case file note in the material before the Court which records that the applicant stated that after having the hearing invitation letter translated she decided not to attend the hearing and asked the person who translated the letter to fill in the form and that the form had been filled in wrongly because she did not want to attend the Tribunal hearing. 

6. In those circumstances the Tribunal decided pursuant to s.426A of the Migration Act 1958 to make its decision on the review without taking any further action to enable the applicant to appear before it. 

   
   

   It summarised the applicant's claims as made in the written statement accompanying the protection visa application and the statement with the review application.

7. The Tribunal found that the applicant had provided only a brief outline of her claims and that important aspects of those claims were general and lacking in detail.  It gave examples of the lack of detail in relation to the nature and extent of her practice of Christianity and her underground church activities, her practice as a Jehovah's Witness and when she became a Jehovah's Witness, the circumstances of detention or the way in which she had to be, as she claimed, more careful with her religious practice after her detention.  It also had regard to the fact that there was no information about the applicant’s religious practice and activities in China after her claimed detention in 1997 or since her arrival in Australia.  Given the lack of details in the applicant's claims, which were found by the Tribunal to be mere assertions, and without the opportunity to test the truthfulness of those claims at a hearing, the Tribunal was not prepared to simply accept them.

8. It was not satisfied on the information before it that the applicant was a Christian or Jehovah's Witness as claimed and thus was not satisfied that she had a well-founded fear of persecution for reasons of her claimed religion.  As no other Convention reason was claimed by the applicant or suggested by the evidence before the Tribunal, it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if she returned to China.  It concluded that having considered the evidence as a whole it was not satisfied the applicant was a person to whom Australia had protection obligations under the Refugees Convention. 

9. The applicant sought review by application filed in this Court on

   
   

   6 January 2006.  The first ground in the application asserts that the Tribunal failed to take into account the applicant’s statements and found a lack of detail while in fact the details were provided in the statements.  This ground is without substance.  The applicant's two statements were clearly considered by the Tribunal, which not only put the applicant on notice in its hearing invitation that it was unable to make a decision in her favour on the information before it, but also set out and dealt with the claims made in her statements.  The applicant's general contention that the Tribunal failed to take account of her statements does not establish a jurisdictional error.  Insofar as she takes issue with the Tribunal's findings as to a lack of detail in her claims she seeks merits review which is not available in this Court. 

10. The second ground is that the Tribunal and the Minister failed to find that the arrest, interrogation and abuse by police against her amounted to persecution.  Insofar as the applicant seeks to challenge the decision of the Minister's delegate of 31 August 2005, on 30 January 2006 the first respondent filed a notice of objection to competency. 

    
    

    That objection should be upheld as the decision of the delegate of the Minister is a primary decision as that term is defined in s.476(4) of the Migration Act 1958 (Cth) and pursuant to s.476(2) this Court has no jurisdiction in relation to a primary decision.

11. As to the contention, repeated in oral submissions, that the Tribunal failed to find or have regard to the applicant’s claim that her arrest, interrogation and abuse by police amounted to persecution, the Tribunal was not obliged to make such findings or indeed address such claims in circumstances where it was not satisfied that the applicant was Christian or a Jehovah's Witness as claimed.  Again, I note that merits review is not available in this Court. 

12. The third ground takes issue with material taken into account by the delegate.  As indicated, this Court does not have jurisdiction in relation to the primary decision. 

13. What remains is a contention that the Tribunal failed to consider material as to China's alleged abuse of its citizens' religious rights and as the applicant said in oral submissions, that the Tribunal did not consider the fact that the Chinese government was restricting religious freedom.  However, again, this ground does not establish jurisdictional error.  It is relevant generally to observe that the Tribunal considered the material before it but found on that limited material that it did not accept the applicant's basic claim to be a Christian and a Jehovah's Witness. 

14. As the Full Court of the Federal Court stated in Minister for Immigration & Multicultural & Indigenous AffairsvVSAF of 2003 [2005] FCAFC 73 at [16] in circumstances where an applicant also failed to attend a Tribunal hearing:

    … the Act imposes no obligation on the Tribunal to make positive findings either accepting or rejecting claims.  In reviewing a decision, the Tribunal stands in the shoes of the original decision-maker … [who] is bound by s.65 of the Act … to grant the visa if satisfied that the applicant is a person to whom protection obligations are owed.  In the absence of that satisfaction the section requires the delegate to reject the application.

15. Similarly, in this case the applicant failed because on the limited information before it, the Tribunal, standing in the shoes of the delegate, was not able to be satisfied on the information before it that the applicant was a Christian or Jehovah's Witness as claimed.  As it did not accept her central claims it was not necessary for it to go on to address the issue of the attitude of the Chinese government to citizens' religious rights. 

16. The fourth ground does not relate to the Tribunal's decision and the fifth ground simply repeats the claim of jurisdictional error. 

17. The applicant also filed a 50 paragraph affidavit which is addressed in written submissions for the first respondent.  Much of it simply repeats her claims to be a refugee.  As indicated, merits review is not available in this Court.  It is not for this Court to determine whether or not it considers that the applicant is a refugee. 

18. The claim that the Tribunal refused to recognise that the applicant was a refugee seeks impermissible merits review.  Somewhat confusingly, in paragraph 49 the applicant states that “during the review application at RRT, I was so afraid that they refused my refugee status with so much convenience that I did not dare to go to attend the interview on the RRT hearing date.  The situation made me in a further dilemma because the RRT simply refused the application summarily”. 

19. However, as is clear from the letter inviting the applicant to a hearing, at that time a decision had not yet been made on her application for review.  Indeed, a decision was only made after the applicant confirmed that she did not wish to attend a hearing.  I note that in oral submissions the applicant suggested that she was unwell on the day of the Tribunal hearing.  There is, however, no evidence before the Court to support such a claim.  While the applicant also claims that she was not familiar with legal procedures, the Tribunal contacted her when she did not attend the hearing and recorded, as I have set out above, her statement that she did not want to attend the hearing.  There is no suggestion that the applicant did not receive the letter of invitation or understand it.  No jurisdictional error is established in relation to the Tribunal procedures in relation to the hearing. 

20. The applicant's final disagreement with the Tribunal decision, is an insistence that she is a refugee.  This claim seeks merits review and does not establish jurisdictional error. 

21. I have touched on aspects of the applicant's oral submissions and indicated that her claim that the Tribunal did not consider carefully the materials she submitted is contrary to the material before the Court.  

    
    

    It does not establish jurisdictional error.  Having rejected her central claims on the limited information before it, given the lack of detail, it was not necessary for the Tribunal to then examine the situation in China or to address her claim that she was taken away by the police, beyond its statement as to lack of satisfaction that she was a Christian or a Jehovah's Witness as claimed. 

22. Insofar as it was suggested that the Tribunal did not “seriously look for” the evidence, it is for an applicant to put his or her case before a Tribunal and this is not a case in which the Tribunal could be regarded as under any obligation to make inquiries. 

23. For the sake of completeness I note that no issue was raised by the applicant as to the Tribunal's compliance with the procedures in ss.425, 425A and 426A.  She replied to the hearing invitation and there is nothing to suggest that there was any failure by the Tribunal to comply with those procedures.  Nor, indeed, is there anything to suggest that the Tribunal in any way failed to afford the applicant procedural fairness in meeting its obligations under the Act (see generally, VSAF and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225).

24. As no jurisdictional error has been established the application must be dismissed.  I will hear submissions in relation to costs.

RECORDED  :  NOT TRANSCRIBED

1. The applicant has been unsuccessful and the first respondent seeks costs in the sum of $4200.  The applicant told the Court that she considered the decision unfair and did not think that she should have to pay the costs.  However, her dissatisfaction with her decision is not a factor that warrants a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. 

   
   

   The amount sought is appropriate in light of the nature of this and other similar matters.  

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

Associate: 

Date:  19 October 2006