SZIBY v Minister for Immigration

[2007] FMCA 889

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIBY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 889

MIGRATION – Review of RRT decision – application for protection visa – where applicant did not attend Tribunal hearing – whether applicant required to advance own case – where applicant claimed failure to comply with s.424A – where applicant did not provide sufficient information – whether Tribunal required to publish draft reasons for comment – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 424A

Dranichnikov v Minister for Immigration (2003) 197 ALR 289
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
Abebe v Commonwealth (1999) 197 CLR 510

Applicant: SZIBY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 93 of 2006

Judgment of: Raphael FM

Hearing date: 1 June 2007

Date of last submission: 1 June 2007

Delivered at: Sydney

Delivered on: 1 June 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay First Respondent’s costs assessed in the sum of $2,500.00.

3. The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 93 of 2006

SZIBY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China.  He arrived in Australia on 16 August 2005.  On 22 August 2005 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 6 September 2005 a delegate of the Minister refused to grant a protection visa and on 26 September 2005 the applicant applied for review of that decision.

2. On 20 October 2005 the Tribunal wrote to the applicant advising her that it 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.  The Tribunal invited the applicant to a hearing on 15 November 2005.  The applicant did not attend that hearing.  On 23 November 2005 the Tribunal determined to affirm the decision not to grant the protection visa which determination it handed down on 13 December 2005.

3. The scheme of the Migration Act 1958 (Cth) (“the Act”) provides in Div.3 for various classes of visas to be issued to persons who wish to enter or remain in Australia. One of those classes of visas is a protection visa that is dealt with in s.36 of the Act. Section 36(2) of the Act gives the criterion for the grant of a protection visa requiring the applicant to be a non-citizen of Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

4. Section 65 of the Act requires the Minister to consider a valid application for a visa and if he is satisfied of the matters set out in s.65(1)(a)(i) to (iv) he must grant a visa. One of those matters upon which he must be satisfied is that the criteria prescribed by the Act have been themselves satisfied for the grant of the visa.

5. It is well established by authorities such as Dranichnikov v Minister for Immigration (2003) 197 ALR 289 at [78]; Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187] that whilst there is no onus of proof placed upon an applicant, it is her responsibility to advance her own case in order to enable the Minister to reach the state of satisfaction required by the Act.

6. An applicant has a number of opportunities to do this.  She completes a form applying for a protection visa and can attach to that form such information as she believes will persuade the Minister.  The form is then considered by a delegate.  Sometimes a delegate asks the applicant to attend an interview.  If the delegate does not reach the necessary state of satisfaction the delegate provides the applicant with a reasoned decision from which the applicant can see where she has failed in her quest. 

7. Thereafter the applicant has a further opportunity.  She can apply to the Refugee Review Tribunal for a full merits review and the Tribunal is required to invite her to a hearing even if she did not receive one from the delegate.  The applicant completes a form for the Refugee Review Tribunal to which she can attach any relevant information that might assist the Tribunal to come to a favourable decision.  If the Tribunal does not come to a favourable decision on the written evidence it so informs the applicant before inviting her to the hearing.  At this stage the applicant would have a reasonable understanding of the difficulties which she faces so that she can come to the hearing of the Tribunal well armed.

8. It follows from the above that if the applicant does not provide any additional information or attend the Tribunal, she cannot expect the Tribunal to change its mind and grant a visa when it has already told her that it is not prepared to do so on the basis of the information then before it.  Attendance at the Tribunal therefore attains an importance which, luckily, most applicants understand.  This applicant obviously did not.  She told me in court today that she did not attend the hearing because she had no idea, by which I infer that she had no understanding.  She also told me that she thought it was another date.   But that is not a matter in respect of which she can be given any sympathy as the date is clearly imprinted on the document.

9. In support of her original application the applicant provided a one‑paragraph statement. This is found at [CB27] and is repeated by the Tribunal in its decision at [CB64]-[65]. It refers to the applicant’s Christian belief and mentions that she was detained three times, in 1981, 1989 and 2003 but the latter detention refers to support of Falun Gong members. It will be clear from a reading of the statement that it does not contain sufficient detail to convince either a delegate or a Tribunal that its author has a well-founded fear of persecution for a Convention reason. As the Tribunal says at [CB66]:

   “In the present case the Applicant’s claims are very brief.  They amount to an assertion that she is a Christian.  She then seems to be saying in her statement that people these days in China have greater levels of religious freedom than they did, however, not the unfettered freedom that exists in Australia.  The Applicant states that she was detained three times, however little detail has been provided in relation to this component of her claims.  She states that she was detained in 1981 as she was “found to have religious activities at my relative’s home”.  No further details pertaining to this claim have been provided.  The Applicant states that in 1989 she was taken to a police station because she supported the student movement but again no further details pertaining to this claim have been provided.  The Applicant states that in 2003 she was taken to a local police station for investigation as she supported Falun Gong members.  No further information pertaining to this component of her claims has been forthcoming.  For example, she does not exactly say when this occurred, how long she was held for, what happened to her whilst in detention, and when and in what circumstances she was released.  Furthermore, no documentary evidence has been provided to support these claims such as a copy of an arrest warrant or detention order or corroborative statements from relatives or friends. 

   On the evidence before me, and in the absence of an opportunity to explore the detail and veracity of the applicant’s unsupported assertions, I am unable to be satisfied that the Applicant is a Christian, or that she has participated in illegal religious activity or that she supported the student movement or Falun Gong or that she has ever been investigated or detained for the reasons that she claims.

   The Tribunal given all of the above and based on the unsupported claims made by the Applicant accordingly finds that it is unable to be satisfied that there is a real chance that the applicant will be persecuted for a Convention reason if she returns to China.”

10. Although any judicial officer hearing applications for judicial review of the decisions of the Refugee Review Tribunal may have some doubts as to the efficacy of producing documentary evidence of the types suggested by the Tribunal, the balance of the Tribunal’s statements set out above cannot be impugned.  The responsibility for coming to the state of satisfaction required is that of the Tribunal alone, and in a case such as this, where the reason for failing to be satisfied is the total lack of substantial information and the failure of the applicant to attend a hearing, the Tribunal cannot be said to have fallen into jurisdictional error.

11. The application that was filed with this Court is in a familiar form, making claims of failure to comply with s.424A of the Act. It was clearly not written by the applicant. It claims that the Tribunal failed to provide the applicant with particulars of information that was the reason or part of the reason for affirming the decision under review. It is now well settled that the failure of the applicant herself to provide sufficient information to allow the Tribunal to come to the necessary state of satisfaction does not constitute “information” for the purposes of s.424A. There is no requirement under Australian law for a Tribunal to publish draft reasons for comment.

12. But even if there was, it seems to me that the hearing invitation letter to which I have previously referred does the job just as well in the circumstances of this particular case.  It makes it clear that on the information currently provided by the applicant the Tribunal is unconvinced.  The Tribunal’s decision went no further than that.

13. Before me today the applicant stated that she did not believe the decision was correct because the Tribunal did not believe that she held the religious belief that she claims she does hold.  She told me that if Australia sends her back to China, she will suffer a lot and not only will she suffer, but also her family.  The applicant clearly misunderstands the role of the Court in these cases, which is to provide judicial review of a decision not to provide merits review of an application. 

14. I dismiss the application.  I order that the applicant pay the respondent’s costs which I assess in the sum of $2,500.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  13 June 2007