SZIYD v Minister for Immigration - [2006] FMCA 1582

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIYD v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1582

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

Migration Act 1958 (Cth), ss.424A, 426A

SZCIA v Minister for Immigration&Multicultural&IndigenousAffairs [2006] FCA 238
SZEZI v Minister for Immigration&Multicultural&IndigenousAffairs [2005] FCA 1195

Applicant:

SZIYD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1679 of 2006

Judgment of:

Barnes FM

Hearing date:

20 October 2006

Delivered at:

Sydney

Delivered on:

20 October 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr J Mitchell

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1679 of 2006

SZIYD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 May 2006 affirming a decision of the first respondent not to grant the applicant a protection visa. The applicant, who claims to be a citizen of the People's Republic of China, arrived in Australia in September 2005. In November 2005 she applied for a protection visa.
In a statement annexed to her protection visa application she claimed that she became a Christian in China when she was very young because of her parents’ beliefs, that she had been involved in a house church, in secret gatherings and that local authorities sent people to her home and checked what they were doing and gave them warnings that they had to follow orders. She claimed that her family moved within China in 1993 and thereafter joined another local underground church, that the authorities became aware of this activity and came to search with a search warrant, taking away the chief missionaries by force.

She claimed that she became one of the chief directors of the Church, that the authorities were aware of this and tried to find and arrest her and that she had to hide. She claimed that she had to again move to another part of China where she carried out missionary work, attended a local underground church and photocopied gospel leaflets to get people to attend meetings. She claimed that in July 2005 she was arrested with three others at the house at which the Church was operating. She claimed that she was detained for 15 days and mistreated, and that an amount of money was paid to obtain her release. She claimed that she went into hiding until church friends could arrange a visa for her.
The application was refused. The applicant sought review by the Tribunal. In the review application lodged on 28 February 2006 she nominated an advisor, who was described as a registered migration agent, to act for her in relation to her application. She provided an address for that person. She also indicated that she wanted all correspondence in connection with the review sent to her advisor whom she nominated as her authorised recipient. The Tribunal wrote to the applicant by letter dated 8 March 2006 sent to her authorised recipient advising 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 this information alone. It invited her to attend a Tribunal hearing on a date, time, and place specified. It advised her that if she did not attend the hearing and the Tribunal did not postpone it, it could make a decision on her case without further notice. It also asked her to send any new documents or written arguments she wanted the Tribunal to consider.
In its reasons for decision the Tribunal recorded that no response was received to this letter and that the applicant did not appear before the Tribunal on the day, time and place scheduled. Pursuant to s.426A of the Migration Act (1958) (Cth) the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal observed that the material before it was limited to that which the applicant had submitted to the Department. It summarised that information. It found that the applicant had made a series of unsupported assertions, that she had been put on notice in writing that the Tribunal could not make a decision in her favour on the material before it, but despite that she had sent no further information, nor taken advantage of the opportunity to put testimony before the Tribunal at a hearing. On the evidence before it, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.
The applicant sought review of the Tribunal decision by application filed in this Court on 13 June 2006. The only ground relied on in the application is a claim that the Tribunal decision was not fair.

The applicant claimed that as a Christian she could not go back to China because she had suffered in China and the Chinese government limited people’s belief in Christianity.
I note that at a directions hearing held on 4 July 2006 the applicant was assisted by a Mandarin interpreter (consistent with the statements in the protection visa application and in her application for review to the Tribunal that a Mandarin interpreter was required). The matter was listed for hearing on 17 October 2006. At the start of the hearing the applicant claimed that she understood very little Mandarin and in fact spoke a Fuqing dialect. The hearing was adjourned until 20 October and continued today with the assistance of a Fuqing interpreter.
Today the applicant handed to the Court a statement in English in which she stated that she did not attend the Tribunal hearing for certain personal reasons, that she had no job or income in Australia and hardly left home, having been arrested in China and that she was too scared to leave home, that her health was not good, she did not have money to seek medical treatment, and shared a six-square-metre room with others. She claimed to regret that she did not attend the hearing and sought another opportunity. She also claimed that she had had difficulty obtaining supporting materials from China. She sought, as was provided, a translator who could speak Fuqing. She also referred to her claims to fear persecution based on religious activities in China.
However such statement does not purport to raise a claim of jurisdictional error on the part of the Tribunal. While it refers to the applicant’s failure to attend the Tribunal hearing, no issue is taken by the applicant with the notification to her of the Tribunal hearing in accordance with the requirements of ss.425A and 441A of the Migration Act. As she is self-represented I have considered this issue but there is nothing in the material before the Court to suggest that there was any failure by the Tribunal in that respect in relation to its notification of the hearing by letter of 8 March 2006 addressed to the applicant’s adviser and authorised recipient.
It has not been established that there was any error in the Tribunal proceeding under s.426A of the Migration Act to make a decision without taking further steps to enable the applicant to appear before it. The applicant’s personal circumstances are not such as to establish that the Tribunal fell into error in the manner in which it invited her to a hearing. Her concerns do not establish that the Tribunal fell into error, let alone error constituting jurisdictional error, in the manner in which it proceeded. As the Tribunal observed in its reasons for decision, the Tribunal informed the applicant in its letter of 8 March 2006 that it was unable to make a decision in her favour on the information that she had put before it by way of information before the Department.
I also add for the benefit of the applicant that this Court does not have a discretion to require that the Tribunal conduct a further hearing in circumstances such as those raised by the applicant. Nor, insofar as the applicant raises claims about her situation in China, is merits review available in this Court.
It is apparent from the application filed on 13 June 2006 that the basis for the applicant’s contention that the Tribunal decision was not fair was that it did not accept her claims in relation to a well-founded fear of persecution in China based on her activities as set out in the protection visa application. As indicated, merits review is not available in this court. These claims do not establish a jurisdictional error.

It was open to the Tribunal to proceed as it did. It was for the applicant to put her case to the Tribunal and for the Tribunal to assess that case on the material before it. As recognised by the Tribunal, it was not required to make the applicant’s case for her, or to accept uncritically any and all of the allegations or assertions made by the applicant.

The Tribunal decision was based on the inadequacy of the material before it. This assessment of material by the Tribunal member was open to the Tribunal on the material before it.
For the sake of completeness I note that as submitted for the first respondent, no issue arises in this case as to the operation of s.424A(1) of the Migration Act. The appraisal by the Tribunal of the material as inadequate was not information within s.424A(1). It is well established that the Tribunal need not put its subjective thought processes to an applicant for comment under this provision. See SZEZI v Minister for Immigration&Multicultural&IndigenousAffairs [2005] FCA 1195 and SZCIA v Minister for Immigration&Multicultural&IndigenousAffairs [2006] FCA 238.
As no jurisdictional error has been established the application must be dismissed. The applicant has been unsuccessful and the first respondent seeks that she pay costs in the sum of $5000. The applicant told the Court that she was having difficulty surviving, that she had no job and lived with friends. However her lack of funds is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the respondent in a case such as this, although it may be a matter to be taken into account by the first respondent in determining when and how to seek to recover such costs. The amount sought is consistent with the Federal Magistrates Court Rules and is appropriate in light of the nature of this and other similar matters.

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

Associate:

Date: 3 November 2006