SZIFB v Minister for Immigration

[2007] FMCA 1056

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIFB v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1056

MIGRATION – Review of Refugee Review Tribunal decision – where Tribunal invited applicant to a hearing – where applicant did not attend hearing – where Tribunal could not reach a state of satisfaction – whether s.424A applied.

Migration Act 1958, ss.65, 424A, 426A

SAAP v Minister for Immigration [2005] HCA 24

Applicant: SZIFB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG273 of 2006

Judgment of: Raphael FM

Hearing date: 21 June 2007

Date of last submission: 21 June 2007

Delivered at: Sydney

Delivered on: 21 June 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the 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 273 of 2006

SZIFB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. She arrived in Australia on 19 April 2005. On 30 May 2005 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 24 August 2005 a delegate of the Minister refused to grant a protection visa. On 26 September 2005 the applicant applied for review of that decision. On 24 October 2005 the Tribunal wrote to the applicant informing 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 29 November 2005. The applicant did not attend the hearing. The Tribunal then proceeded pursuant to s.426A of the Migration Act 1958 (“the Act”) to consider her application.  On 5 December 2005 the Tribunal determined to affirm the decision under review, and handed that decision down on 22 December 2005.

2. The grounds upon which the applicant claims the protection of Australia for what appears to be the Convention reason of imputed political opinion arose out of her claim to have worked as a nurse at a hospital in S and in particular to her secondment to work at a prison in S with a doctor.  She stated that when she arrived at the prison with the doctor and met the patients, she found that some of the prisoners had been tortured very severely.  She stated that she and the doctor were once called to the head office of the hospital and told to keep their mouths shut.  She stated that the doctor had been sacked and she feared repercussions for herself.  Because of this fear, she left China and travelled to Australia.  The Tribunal says in its short written reasons:

   “On the evidence before me and in the absence of any evidence to corroborate her claims the Tribunal is not able to find that the Applicant would face a real chance of persecution of [sic] she was to return to China.  There is no detail confirming her registration as a nurse.  There is no description of the incidents of torture witnessed in [name of prison].  There is no corroborative evidence that she is of interest to the security forces and based on her statements annexed to her 866 application it would appear that she  fled China on the basis of a mere feeling that the security forces would do something bad to her.  The Tribunal is unable to find that the Applicant was interviewed by the local security apparatus and received threats from them.   There is no evidence that the applicant faced persecution in China or evidence that there is a real chance she will face it in the future. 

   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 based reason if she returns to China.” 

3. The applicant has filed an amended application. It is in a familiar form. It makes reference to s.424A of the Act and SAAP v Minister for Immigration [2005] HCA 24. The applicant provides no particulars of the information of which it is alleged the Tribunal failed to provide her with notice.

4. The fact is that in this case the Tribunal came to the decision which it had flagged to the applicant in the hearing invitation: that on the evidence before it, it was unable to be satisfied that she was a person to whom Australia owed protection obligations. That obligation to be satisfied is set out clearly in s.65 of the Act. Unless a state of satisfaction is reached, the Tribunal must not grant a visa.

5. The grounds upon which the Tribunal lacked the ability to come to the requisite state of satisfaction are set out in the extract from the Tribunal’s decision above.  There is nothing in those grounds which would indicate a jurisdictional error.  There is no ‘information’ which the Tribunal failed to provide the applicant with notice of.  The mere existence of a failure to be satisfied does not itself constitute information. 

6. As I explained to the applicant, in the absence of her attendance at the Tribunal hearing, there is no merit in her application to this Court because the Tribunal acted within its jurisdiction in stating its failure to be satisfied that she was a person who fell within the definition of a refugee under the Refugees Convention and the Refugees Protocol.

7. 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 seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  21 June 2007