SZILX v Minister for Immigration - [2007] FMCA 566

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZILX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 566

MIGRATION – Refugee – s.65 Requisite level of satisfaction – illogical – bias – failure to attend hearing – application dismissed.

Migration Act 1958 (Cth), ss.426A, 65, 36(2), 422B, 425, 425A, 441A

NAVX v Minister for Immigration and Multicultural Affairs [2004] FCA 346
Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) CLR 259
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Refugee Review Tribunal; Ex parte H [2001] HCA 28
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134
Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559

Applicant:

SZILX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 700 of 2006

Judgment of:

Nicholls FM

Hearing date:

16 April 2007

Date of Last Submission:

5 April 2007

Delivered at:

Sydney

Delivered on:

16 April 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms. G. Broderick

Solicitors for the Respondents:

Clayton Utz

ORDERS

Reference to the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,700.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 700 of 2006

SZILX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

(Revised from transcript)

I have before me an application filed in this Court on 8 March 2006 and amended on 18 August 2006, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 13 January 2006 and handed down on 2 February 2006 which affirmed a decision of a delegate of the first respondent, to refuse the grant of a protection visa to the applicant.
The applicant is a citizen of the People’s Republic of China (“PRC”) who arrived in Australia on 23 August 2005 and who lodged an application for a protection visa with the first respondent’s Department on 22 September 2005. On 13 October 2005 a delegate of the respondent Minister refused to grant the protection visa, and on 15 November 2005, the applicant applied for review of that decision.
The applicant’s claims to refugee protection are set out in his application for a protection visa (Court Book (“CB”) 1 to CB 25), in his supporting statement (at CB 26 to CB 27) and in his application for review to the Tribunal (CB 42 to CB 45), which contained a further supporting statement (CB 46) in largely identical terms to that submitted in his protection visa application (CB 26 to CB 27). The applicant’s claims to protection were that he was a Falun Dafa practitioner and as a result of this, was placed in detention and tortured by the Chinese authorities. The applicant claimed he was detained for seven days in January 2002, and between October 2003 and March 2004 because of his participation in Falun Dafa activities.
On 1 December 2005, the Tribunal wrote to the applicant advising that on the information before it, the Tribunal was unable to make a favourable decision and invited him to a hearing. It further advised that if he did not attend, then the Tribunal could make a decision without further notice. The letter provided a time, date and place for the hearing (see CB 49 to CB 50), and was addressed to the applicant’s postal address (“address for correspondence”) (CB 44). The Tribunal did not receive any response from the applicant to this letter, nor did the applicant attend the scheduled hearing (CB 51 to CB 52).
The Tribunal’s decision record is reproduced at CB 59 to CB 65. The Tribunal was satisfied that the applicant had been invited to attend the hearing and had been informed of the scheduled date, time and place, and had not responded. In these circumstances, the Tribunal, pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”), proceeded to make its decision on the review without taking further action to enable the applicant to appear before it (CB 62).
The Tribunal’s “Findings and Reasons” are set out at CB 63 to CB 64. The Tribunal found:
1)The applicant presented his claims poorly with only a brief statement to the Department, and essentially the same statement to the Tribunal (CB 63.9).
2)The applicant did not provide any meaningful details to support the claim he was imprisoned and otherwise mistreated by authorities in China because of his involvement with Falun Dafa (CB 63.9 to CB 63.10).
3)It could not be satisfied by the information before it that the applicant was an active and committed Falun Dafa practitioner or that he was targeted by the PRC authorities because of Falun Dafa activities (CB 63.10).
4)It could not determine from the information it had whether the applicant was a person of interest and concern to the PRC authorities at the time he left the country in 2005 (CB 64.1).
5)The applicant provided no details regarding Falun Dafa related activities in Australia and the Tribunal could not determine if he was involved with the group (CB 64.1 to CB 64.2).
6)It could not be satisfied by the information he provided in his “brief and broad written statement” that he was an active or committed Falun Dafa practitioner or that he intended to be involved in the group in the reasonably foreseeable future (CB 64.2 to CB 64.3).
7)It could not be satisfied on the available information that in the reasonably foreseeable future the applicant would be implicated in any Falun Dafa activity which would attract the adverse interest of the PRC authorities (CB 64.4).
8)The applicant had been put on notice that the Tribunal was not satisfied by the evidence he provided in support of his application, yet the applicant provided no further information or given the Tribunal the opportunity to explore his claims at a hearing (CB 64.4 to CB 64.5).
In the absence of further information and in view of the above findings, the Tribunal affirmed the delegate’s decision not to grant a protection visa (CB 64.5 to CB 64.6).
The applicant’s original application to this Court, filed on 8 March 2006, sought review of the Tribunal’s decision on the following grounds:
“1. The Refugee Review Tribunal failed to give natural justice.
2. The decision made by the Refugee Review Tribunal is illogical and biased.
3. There was no evidence or other material to justify the making of the decision”
The applicant’s amended application to this Court, filed on 18 August 2006, sought review of the Tribunal’s decision in this Court in the following terms (largely identical to what was submitted to the delegate (CB 26 to CB 27) and the Tribunal (CB 46)):
“1. The decision made by Refugee Review Tribunal is illogical and biased.
2. I am a genuine Falun Dafa practitioner and I started to exercise it in December 1997. Just because of this, I have been put into detention and toutured (sic) by the Chinese authority.
3. In January 2002 I went to Beijing to validate Dafa. I was later detained at the Fangshan District Detention Centre in Beijing for seven days.
3. In October 2003 I was sent to the Qingdao City Detention Centre. In the detention centre, I shorted (sic) to the policemen, “What is wrong with my practising Falun Gong? What crime is it to be a good person?” The police were afraid of my shouting, so they choked him, beat and kicked him.
4. Then I was subjected to brainwashing. To prevent me from practising the exercises and sending forth righteous thoughts, the policemen used various illegal methods to deprive my freedom, including forbidding me to talk to other practitioners, to double-cross my legs and to fold my hands together. There I was monitored day and night. I went on hunger strike for seven days. then I was released in March 2004.
5. I have no way out in China and I spent around RMB 50,000.00 to obtain a passport and a visa to Australia.”

Relevant law

Section 65 of the Act relevantly states:

“Decision to grant or refuse to grant visa

(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
…”

Section 349 of the Act provides that this section also applies to the Tribunal.
Section 36 of the Act states the relevant criteria which must be met in an application for a protection visa:
“Protection visas
(1) There is a class of visas to be known as protection visas.
Note: See also Subdivision AL.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
Protection obligations
(3) Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
(5) Also, if the non‑citizen has a well‑founded fear that:
(a) a country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first‑mentioned country.
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.”
The respondent submits that the application raised two grounds for judicial review:
1)The Tribunal decision was illogical; and
2)The Tribunal was biased.
The respondent submits that the claim that the Tribunal’s decision was illogical is without merit. The basis for the Tribunal’s decision was that it was not satisfied that the applicant was a refugee based on the limited material before it. In those circumstances, the Act required that the visa be refused, and the decision of the delegate be affirmed. The respondent referred to the relevant authority of NAVX v Minister for Immigration and Multicultural Affairs [2004] FCA 346 at [11] (“NAVX”).
At the hearing before the Court, Ms. G. Broderick appeared for the first respondent. The applicant appeared in person and was assisted by an interpreter in the Mandarin language.
The applicant submitted:
1)The Tribunal did not consider him to be a refugee.
2)The Tribunal decision was made too quickly and there was some form of “misunderstanding” “between us”. The misunderstanding arose as a result of his being robbed on 10 January 2006 in Auburn. He submitted that in this robbery he lost his documents, money and mobile phone. He also changed his telephone number. For these reasons he could not attend the hearing.
3)He did not report the robbery to the police because he did not speak English and “could only pray” because he used to be a Christian.
4)He was not able to bring “more” documents to the hearing. His documents “were not sufficient enough”. Presumably, with reference to the Tribunal’s findings that he had provided insufficient detail to it in support of his claims.
5)He retained a migration agent at a Pitt Street address which was the same address as that provided to the Court as the address for service.
6)He was frightened after the “accident”.
I should just note that there was no evidence before the Court, (nor was any proffered), to support the statements made by the applicant from the Bar table.
In all, putting aside those assertions which seek impermissible merits review of his refugee claims (Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) CLR 259 at [272]), the applicant’s complaints are:
1)The Tribunal decision was illogical.
2)The Tribunal was biased.
3)The Tribunal failed to provide natural justice.
4)There was no evidence to justify the making of the decision.
The relevant material before the Court reveals:
1)The application for a protection visa made on 22 September 2005 (CB 1 to CB 25).
2)A supporting statement at CB 26 to CB 27.
3)
The application for review to the Tribunal, received on

14 November 2005 (CB 42 to CB 45) with supporting statement (CB 46).
4)The applicant’s address for correspondence before the Tribunal was notified in the application for review (CB 44.7).
5)By letter dated 15 November 2005 and sent to the relevant address, the Tribunal notified the applicant of the process of the review. Of particular relevance is that the Tribunal notified the applicant of the possibility of being invited to a hearing, the circumstances in which he would be invited, and its importance. (CB 47 to CB 48).
6)By letter dated 1 December 2005, the Tribunal again wrote to the applicant at the address provided. It advised that it was unable to make a favourable decision on the material that had been provided and invited him to attend a hearing to present argument and evidence in support of his claims. A time, place and date were provided. A “Response to Hearing Invitation” form was said to have been enclosed, with directions that the applicant complete the form and return it to the Tribunal. The letter, importantly, advised the applicant of the consequences of his failure to attend, and that if he was unable to attend, that he should “immediately” contact the Tribunal (CB 49 to CB 50).
7)There is no evidence before the Court that either letter was returned as undeliverable (CB 51).
8)The applicant claims (before the Court) that he did not receive the letter.
9)The applicant did not attend at the scheduled time or place for the hearing (CB 52).
On what is before the Court, a plain reading of the Tribunal’s decision record reveals that the Tribunal was unable to reach, on what was before it, the requisite level of satisfaction (s.65 of the Act) that the applicant met the criterion in s.36(2) of the Act. The Tribunal variously found that the applicant had not provided “any meaningful details”, or “no details” and an “absence of further information” (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 at [15] to [16], NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] to [5] and NAVX at [11]).
The Tribunal’s analysis of what was before it does not reveal or display any irrational or illogical finding, or thought process. The applicant plainly does not agree with what the Tribunal found, but this does not reveal illogical or analytically flawed thinking on its part. The Tribunal’s findings leading to the inability to reach the requisite level of satisfaction that, in effect, the applicant met the Convention definition of “refugee”, were open to it, on what was before it. This ground does not succeed.
Nor is the allegation of bias, or for that matter, the apprehension of bias, or even bad faith, made out. With reference to the relevant authorities, (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361) no evidence whatsoever has been put forward to support what is a mere unsubstantiated allegation, based on the applicant’s dissatisfaction with, or subjective explanation of, the outcome.
The applicant complains the Tribunal failed to provide “natural justice” I note that this is a decision to which s.422B of the Act applies. The natural justice hearing rule (absent bias) is that as set out in Division 4 of Part 7 of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61, SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62, NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195).
The applicant was invited to a hearing (s.425 of the Act). The invitation complied with the requirements of s.425A (as to meeting the requirements of one of the methods set out in s.441A, as to the relevant notice period, and a statement as to the effect of s.426A of the Act. The Tribunal proceeded to make its decision when the applicant did not appear at the hearing in exercising its discretion pursuant to s.426A of the Act. On what is before me this was a course open to the Tribunal.
In Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, the Court cited the Full Federal Court’s decision in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16]:
"Part 7 of the Act (in which ss. 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence."
The applicant’s submission today that he was robbed on the day of the hearing, lost his documents and mobile phone and could therefore not attend the hearing or presumably contact the Tribunal, does not assist the applicant in showing jurisdictional error on the part of the Tribunal. The applicant has provided no evidence whatsoever to support this assertion. Nor did he report the robbery to the police, or even attempt to contact the Tribunal. But even if the applicant had been robbed as he claimed, with the consequence that failure to attend the hearing was through “no fault” of his own, in the absence of any knowledge of this, the Tribunal “was authorised to proceed to decide the review”.

Even if the decision was to be viewed as against the principles of common law procedural fairness, I cannot see that the applicant’s complaint would succeed. He applied for review, was given notice of the process of the review, was invited to a hearing, was told of the possible consequences of a failure to attend, and without explanation or further communication to the Tribunal, did not attend. In these circumstances, as the Full Federal Court described in NAVX at [5], the Tribunal’s conclusion was the “inevitable consequence” of the failure to attend.
Nor does the applicant’s complaint that there was no evidence for the making of the decision succeed in showing jurisdictional error on the part of the Tribunal. The relevant facts to support an application to the Tribunal need to be supplied by the applicant himself in as much detail as necessary to establish the facts. It is for the applicant to make out his case: Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559 at 596 per Kirby J. The applicant was given the opportunity to forward further evidence and information in support of his claims. He did not do so. His complaint now that he did not have “sufficient documents” does not reveal jurisdictional error on the part of the Tribunal.
The Tribunal, as I have already stated, simply could not reach the requisite level of satisfaction on what was before it that the visa had to be granted.
I cannot see jurisdictional error in the Tribunal’s decision. The application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: 17 April 2007