SZIYZ v Minister for Immigration

[2007] FMCA 996

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIYZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 996

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91S, 476
Federal Magistrates Court Rules 2001(Cth), rr.44.11(c), 44.12

Minister for Immigration v Guo & Anor; Minister for Immigration v Pan & Anor (1997) 191 CLR 559
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 74 ALJR 405
SZECD v Minister for Immigration [2005] FMCA 554
SZHBC v Minister for Immigration [2007] FMCA 692

Applicant: SZIYZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1792 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 10 May 2007

Delivered at: Sydney

Delivered on: 27 June 2007

REPRESENTATION

Advocate for the Applicant: The Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the First Respondent: Ms A Nanson of Australian Government Solicitor

ORDERS

1. The name of the first respondent be amended to read ‘Minister for Immigration & Citizenship’.

2. The application filed on 26 June 2006 is dismissed.

3. The applicant is to pay the first respondent's costs and disbursements of and incidental to the applicant fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1792 of 2006

SZIYZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE  REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym "SZIYZ".

2. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on
   26 June 2006 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal").  The Tribunal's decision was made on 2 May 2006 affirming a decision of a delegate of the first respondent made on 7 February 2006, refusing to grant the applicant a Protection (Class XA) visa.  The applicant seeks relief against the decision of the Tribunal.

3. The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise for the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) ("the Rules"), I dispenses with a hearing under r.44.12 and set the matter down for final hearing.

4. A Court Book ("CB") prepared by the first respondent's solicitors was filed and served on 8 August 2006.  I have marked it Exhibit "A" and it was read into evidence.

Background

1. The Tribunal decision of R Mathlin, reference N0653312, provides the following background information:

   The applicant who claims to be a citizen of the People's Republic of China, arrived in Australia on 25 December 2005 and applied to the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa on 30 December 2005.  The delegate decided to refuse to grant the visa on 7 February 2006 and notified the applicant of the decision and her review rights by letter of the same date.  The applicant applied to the Tribunal on 10 March 2006 for a review of the delegate's decision.(CB 58)

2. The Tribunal decision provides the following in respect of the applicant's claim under the heading "Claims and Evidence":

   She is a married woman in her forties.  Her husband and child remain in the PRC.  She travelled to Australia on 25 December 2005 using a passport issued in her own name in January 2001.  She provided the same residential address in China for the last ten years, and stated that she was employed in the same job from 1980 until 2005. 

   In a statement in support of the application, the applicant claimed she was introduced to Falun Gong six years ago by her husband, and had been practising ever since.  The Chinese government tried to "quell" Falun Gong practitioners, so they could not practise in a public place; sometimes they went to the house or garden of a practitioner.  The applicant was warned by the police many times.  She was forced to attend re-education courses and was treated badly both physically and spiritually.  She believes that she will be "arrested again" and persecuted if she returns to the PRC.(CB 60)

Tribunal's findings and reasons

1. Contained in the Tribunal decision under the sub-heading "Findings and Reasons" are the following passages:

   The applicant has provided insufficient information to enable me to be satisfied that she has a well founded fear of persecution in the PRC for reason of her belief in or practice of Falun Gong.  The applicant has provided few details of her practice of Falun Gong in the PRC prior to her departure - for example, what form her practice took, how often she practised, or precisely what benefits she gained from practising. Most importantly, she has provided little information about the difficulties she claims to have had with the authorities because of her practice of Falun Gong…The applicant is on notice, as a consequence of the delegate's decision and the Tribunal's letter of 24 March 2006, that there were deficiencies in the written information she had presented which precluded a favourable determination of her application.  However, she has not taken the opportunity to provide additional information, or to attend a hearing.  On the basis of the scanty information provided by the applicant, and without the opportunity to obtain further information at a hearing, I am unable to be satisfied that the applicant is indeed a genuine and committed Falun Gong practitioner.  I cannot be satisfied that she experienced persecution as a Falun Gong practitioner prior to her departure from the PRC, or that she was of continuing adverse interest to the PRC authorities at the time of her departure.(CB 61-62)

Application for review of the Tribunal decision

1. On 26 June 2006, the applicant filed an application for review under s.39B of the Judiciary Act containing the following grounds:

   (1) The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

   (2) There was no evidence or the other materials to justify the making of the decision.

   (3)I face a risk of being jailed if I go back to China.

2. In accordance with orders made at first directions, the applicant filed an amended application on 20 September 2006 setting out the following grounds:

   (1) The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

   (2) I am an innocent FaLun Gong practitioner.   It is against the law for people to practice FaLun Gong in China.  We know Falun Gong is based on genuineness, kindness and patience.  As a common FaLun Gong practitioner in China, my original country, my miserable experience as follows: Six years ago, with the introduction from my husband I began to read Falun Dafa materials and practice it.

   (3) Until now, I have never stopped practicing it.  During that period, I kept a tight relationship with many other FaLun Gong practitioners.  We always practiced FaLun Gong together and we intend to seek a high-level cultivation from the rationales of FaLun Gong, "Genuineness, Goodness and Tolerances”.  I believe I can keep my health and spirit through practicing and there is nothing wrong with FaLun Gong.  The Chinese government realise that material penalties like this could not stop me to practice FaLun Gong.  They quell us by arresting FaLun Gong practitioners and putting them in detention and prison.  They went everywhere to catch the practitioners.  So, we could not practise FaLun Gong in public place.  Sometimes we went to a house of one of us or we went to a big garden together.

   (4) I have received warnings from the local government and police many times.  I was forced to attend re-educational courses and treated badly both physically and spiritually.  I arrived in Australia on 25 December 2005, because I know that Australia is one of the real democratic countries in the world.  The Australian Government always protects its people.

   (5) Under such situation, if I go back to China, the police will arrest me again.  I know Australia is a real democratic country and Australian people enjoy high standard of human rights.  All Australian enjoin real democracy, harmony and high standard of human rights.  I wish I could stay in Australia as a refugee.(copied without alteration or correction)

Submissions and reasons

1. The application was a self-represented litigant who appeared with assistance of a Mandarin interpreter.  The applicant confirmed that she had filed an amended application but had not prepared any written submissions for the hearing.  When invited to make oral submissions in support of her application, she declined.  Ms Nanson, for the first respondent, assisted the Court with both written and oral submissions.  Ms Nanson submits in written submissions that there are no legal grounds set out in the amended application.  Instead, that the applicant restates her Tribunal claims. 

2. As such, Ms Nanson submits the applicant is asking the Court to engage in impermissible merits review: Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 74 ALJR 405. Without the benefit of particulars or submissions from the applicant, it is submitted that the Tribunal's reasons disclose no error giving rise to review by this Court. The reasons disclose the Tribunal considered the applicant’s claim and sought further clarification from the applicant at the hearing. Ms Nanson submits that the Tribunal's findings are open to it for the reasons it gave and no jurisdictional error is disclosed in the process adopted by it prior to making its decision.

3. Ms Nanson also referred the Court to a passage in the delegate's decision which clearly placed the applicant on notice that the reason for its decision was the lack of details in the applicant's claim:

   The applicant has provided minimal details to her claims. She has written that as result of her adherence to Falun Gong she received many warnings from the government and the police, was forced to attend re-educational courses, and "was treated badly both physically and spiritually”. Although Country information indicates that the PRC government has persecuted many Falun Gong practitioners, the applicant has not provided any detail or substantiated her statements to any extent. Nor has she provided any detail regarding the basis for, or death of, her commitment to Falun Gong.  On the information that the applicant has provided I am unable to conclude that her claims are true.(CB 42.6)

4. Attached to the Tribunal application is a half-page typed statement setting out the applicant's claims.(CB 49)  This statement is substantially the same as what the applicant submitted to the Department in her original visa application.(CB 27-28)

5. On 24 March 2006, the Tribunal wrote to the applicant indicating 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.(CB 52-53)  The Tribunal invited the applicant to attend a hearing on 21 April 2006 to give oral evidence and present arguments in support of her claim.  The invitation was also extended to any witnesses the applicant may wish to bring to provide evidence, and to file any further documentary proof in relation her current Falun Gong activities or other aspect of her claim.

6. This was forwarded to the address nominated by the applicant for all correspondence in respect of her application, being 288/460 Pitt Street Sydney.  The address relates to a group of mail boxes, used by many applicants to this Court, which have been located at various times at 422 and 460 Pitt Street and now at 226 Elizabeth Street.

7. The Tribunal decision records the following information in respect to that invitation:

   On 24 March 2006 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 21 April 2006.   The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice.  The letter was sent to the applicant at the address which she nominated as the address to which correspondence should be sent.

   No response to the Tribunal’s letter was received. The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. The letter inviting the applicant to a hearing was not returned unclaimed and there is nothing to indicate that the applicant did not receive the letter. The applicant has provided no telephone number on which she might be contacted. In these circumstances, pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.(CB 58.3)

8. The Tribunal, in a brief decision, indicated that it had insufficient material to be satisfied of the applicant's claim. The relevant part of that decision is reproduced at [12] above. The Tribunal only had before it the facts as alleged in the applicant’s brief statement attached to her Tribunal application. The relevant facts pertaining to the application need to be supplied by the applicant herself in as much detail as necessary. It is for the applicant to make out her own case: Minister for Immigration v Guo & Anor; Minister for Immigration v Pan & Anor (1997) 191 CLR 559 per Kirby J.

9. The amended application filed in these proceedings amounts to nothing more than a plea for merits review which is not available in this Court; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh, Gummow JJ:

   …any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

10. As I indicated in SZECD v Minister for Immigration [2005] FMCA 554, merits review is an assessment of the appropriateness of a decision as distinct from judicial review which focuses on the lawfulness of the earlier decision. Judicial review asks whether the earlier decision-maker was authorised to do what he/she did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances. Merits review provides a complete rehearsal of all of the issues relevant to the decision.

11. I had previously noted in SZHBC v Minister for Immigration [2007] FMCA 692 that a number of applicants have recorded their address for correspondence as mailboxes at 422 Pitt Street, 460 Pitt Street and 226 Elizabeth Street. These applicants have claimed non-receipt of correspondence from the Court or the Tribunal and have therefore been unable to respond.

12. However, I note that this Tribunal decision was sent on 25 May 2006 to 288/460 Pitt Street, and, in the application to the Court, the applicant acknowledged receipt of that decision on 5 June 2006. She filed an application in this Court on 26 June 2006, within the time limit as stipulated in the Act.

Conclusion

1. The applicant appeared at the hearing as a self represented litigant assisted by a Mandarin interpreter.  This places an obligation on the Court to independently consider whether any argument based on the material could have been made out.  Ms Nanson for the first respondent assisted the Court with written and oral submissions in respect of the amended application.  I am satisfied that the original and amended applications do not contain grounds of judicial review.  Neither is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process.  The applicant's claim should be dismissed.

2. I am satisfied that an order for costs should be made in this matter.  I order that the applicant pay the first respondent's costs and disbursement of and incident to the application fixed in the sum of $4,500.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: 

Date:  25 June 2007