SZIEP v Minister for Immigration

[2006] FMCA 1284

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIEP v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1284

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

Migration Act 1958 (Cth)

MinisterforImmigration&Multicultural&IndigenousAffairs v VSAF [2005] FCAFC 73
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195

Applicant: SZIEP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG253 of 2006

Judgment of: Barnes FM

Hearing date: 25 August 2006

Delivered at: Sydney

Delivered on: 25 August 2006

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr JAC Potts

Solicitors for the Respondent: 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 $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 253 of 2006

SZIEP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 December 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant, a citizen of the People’s Republic of China, arrived in Australia in July 2005.  He lodged an application for a protection visa, claiming a well-founded fear of persecution on the basis that he was a Falun Gong practitioner.  In support of his application he provided a statement in which he claimed that as a member of Falun Gong he had been arrested several times in China.  

   
   

   In particular, in January 2000, having gone to Tiananmen Square in Beijing to peacefully appeal for the right to practise Falun Gong, he had been arrested and incarcerated for 15 days during which time he staged a hunger strike and claimed that he was violently force fed.

2. He claimed that in June 2000 he was held in the city detention centre for three months and then sentenced to one year of forced labour because he continued determined to practise Falun Gong.  He claimed that at the forced labour camp he again went on a hunger strike and was subjected to forced feeding as a method of torture.  He also claimed he witnessed another female Falun Gong practitioner being force fed in a violent and disturbing manner.  The applicant said that when the labour camp authorities noticed he was dying they notified the personnel of the relevant office to take him back who ordered his family members to remove him from the labour camp.

3. The applicant claimed that he realised he would face more serious treatment if he stayed in China so he collected money from friends and relatives and sold his house to bribe a government officer to issue a passport and apply for a visa to come to Australia. 

4. The application was refused by a delegate of the first respondent on

   
   

   6 September 2005.  The applicant sought review by the Tribunal. 

   
   

   In his application for review, he provided a residential address and in response to the question, “where do you want us to send correspondence about your application?” provided a mailing address, being an address in Pitt Street, Sydney.  He did not nominate an adviser or authorised recipient.

5. Included with the application for review was a brief statement summarising and re-stating the applicant’s claim to fear persecution in China.  By letter dated 25 October 2005 the Tribunal wrote to the applicant at the address specified as his mailing address and address for service in the application for review, indicating that it had considered the material before it but was unable to make a decision in the applicant’s favour on this information alone and inviting him to a hearing on 29 November 2005.  The letter advised that if the applicant did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice.

6. In its reasons for decision the Tribunal recorded that no response was received to this letter, that it was not returned to the Tribunal unclaimed and noted that it had not been informed of any telephone number at which it could contact the applicant. The Tribunal also recorded that the applicant did not appear before the Tribunal on the day, time and place scheduled for the hearing and in those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth) (the Act), the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

7. The Tribunal summarised the applicant’s claims.  It accepted that he was a citizen of China.  It observed that generally, where broad allegations are made, the Tribunal hearing is an opportunity for the Tribunal to gather detail about the claims with the applicant.

8. It stated that the applicant had been put on notice that the Tribunal was unable to make a favourable decision on the information before it, but that he had not provided further information in support of his claims despite ample opportunity to do so and nor had he given the Tribunal the opportunity to explore aspects of his claims with him. 

9. The Tribunal stated that a number of relevant questions were left unanswered, in particular, that it would have wished to test the applicant’s claim to be a Falun Gong practitioner and to know more about certain details of his claim, such as what had happened to him since his release from a forced labour camp more than four years before he left China for Australia.

10. The Tribunal found that as the applicant had not given it the opportunity to explore these and other aspects of his claims, a number of relevant questions about his circumstances were left unanswered.  In those circumstances it was not satisfied that the applicant was a Falun Gong practitioner or that he had been arrested and assaulted for that reason as claimed.  Accordingly the Tribunal found that the applicant did not have a well founded fear of persecution for a Convention reason now or in the reasonably foreseeable future. 

11. The applicant sought review by application filed in this court on

    
    

    25 January 2006.  He also filed an affidavit sworn on that day.  He filed an amended application on 29 May 2006 which summarises his claims as to what he experienced in China but does not raise any ground or identify any jurisdictional error.

12. In these circumstances, where the applicant is self represented, I have considered all the material before me including the application as well as the amended application.  No jurisdictional error is apparent on that material. 

13. The applicant failed because, on the limited material before it, the Tribunal was unable to be positively satisfied that he met the criteria for the grant of a protection visa.  In such circumstances, as was stated by the Full Court of the Federal Court in MinisterforImmigration&Multicultural&IndigenousAffairs v VSAF [2005] FCAFC 73, the Tribunal was obliged to refuse the grant of a visa. The only material from the applicant before the Tribunal consisted of two statements, one accompanying the protection visa application and the summary provided with the Tribunal application for review which repeated the essentials of the applicant’s claims. There is no error established in the Tribunal failing to be satisfied on the material before it that the applicant met the criteria for the grant of a protection visa.

14. I have considered whether any other possible grounds for jurisdictional error exist.  The respondent’s written and oral submissions addressed s.424A but, as contended, no s.424A issue arises in this case. 

    
    

    The Tribunal summarised the applicant’s claims as presented in his protection visa application, but in its findings and reasons the only reference made is to aspects that were repeated in the statement provided to the Tribunal in connection with the application for review.  In any event, consistent with what was said by Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, in particular, at [29] – [30] the reason for the decision in this case cannot be said to be simply the information about the applicant’s circumstances but rather “the evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation which had been invited”.  As in that case “It would be an inadequate and misleading statement to say that the information [as to the applicant’s circumstances] was the reason or part of the reason for the decision.   It was the lack of the requested further assistance and explanation [from the applicant] that was the reason” (at [29]). 

15. I also raised with counsel for the first respondent the issue of notification of the Tribunal hearing.  I note in that respect that no issue was taken by the applicant, either in oral or in written submissions with whether or not the Tribunal notified him of the Tribunal hearing, although in oral submissions in reply, the applicant told the court that he had just arrived in Australia, did not understand English, had received many materials that he could not read, that initially a student helped him to translate but later the student returned to China and that was why he missed that opportunity to attend the Tribunal hearing.  The applicant sought another chance to have a Tribunal hearing.  However the issue for the court to determine is whether or not the Tribunal fell into jurisdictional error. 

16. The Tribunal’s obligation under the Migration Act 1958 (Cth) is to notify the applicant in English in a manner consistent with the requirements of the Act and Regulations of the invitation to the hearing. The letter of 25 October 2005 is addressed to the address for service provided by the applicant in the review application. It is marked as having been sent by registered post. While no evidence has been put before the court as to the time of mailing of that letter (given that no issue was raised about notification by the applicant), nonetheless there is nothing on the material before the court to suggest that there has been any failure by the Tribunal to comply with the obligations of the Migration Act 1958 in relation to the manner in which the letter was addressed or sent or as to the time allowed between the date of the letter and the date of the hearing.

17. In light of the deeming provision in section 441C of the Act, there is nothing in the material before the court to suggest that the Tribunal fell into error in proceeding as it did pursuant to s.426A of the Act to make a decision on the review without taking further action to enable the applicant to appear before it, given his failure to attend the scheduled Tribunal hearing. For the benefit of the applicant, I explained that the court does not have a discretion to grant him the Tribunal hearing that he seeks in the absence of a jurisdictional error on the part of the Tribunal.

18. The grounds relied on in the initial application filed in this court were first, a generally expressed ground that the decision involved an error of law in that there was no evidence or other material to justify the making of the decision.  There is nothing in the material before the Court to support such a ground as indicated above.  The applicant failed because, on the evidence provided by him, the Tribunal was unable to be positively satisfied that he met the criteria for the grant of the visa. 

19. The next ground is that “the Tribunal Member is not satisfied that I am a Falun Gong practitioner only because a number of questions are not answered”.  This does not establish jurisdictional error.  In fact it is consistent with the Tribunal conclusion that it was unable to be satisfied on the material before it.  In ground 3 the applicant provided some explanation as to why he took more than four years to leave China after the time at which he claimed he was last released from detention.  However, such material does not establish any jurisdictional error on the part of the Tribunal making its decision on the material before it at that time. 

20. For the sake of completeness, I note that the amended application filed on 29 May 2006 merely repeats the applicant’s claim.  In so far as it seeks merits review, merits review is not available in this court.

21. As no jurisdictional error is established the application must be dismissed.

22. The applicant has been unsuccessful and the first respondent seeks that he meet her costs of these proceedings in the sum of $4,800. 

    
    

    The applicant told the court that he is a refugee applicant and has no money or work.  However his lack of funds is not a reason for departing from the normal rule that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the first respondent in determining when and how to seek to recover any such costs.  Costs are sought in the sum of $4,800.  I consider that such amount is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  1 September 2006