SZJAB v Minister for Immigration - [2006] FMCA 1906

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJAB v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1906

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65; 91R; 424A; 425; 425A; 426A; 474; pt.8 div.2
Federal Magistrates Court Rules 2001

Applicant:

SZJAB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1861 of 2006

Judgment of:

Emmett FM

Hearing date:

11 December 2006

Date of last submission:

11 December 2006

Delivered at:

Sydney

Delivered on:

11 December 2006

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the Respondent:

Mr B. Cramer, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1861 of 2006

SZJAB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act1903 (Cth) and Part 8 Division 2 of the Migration Act1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 May 2006, and handed down on 8 June 2006.
The applicant was born on 3 May 1969, and claims to be from the People's Republic of China (“the PRC”). She has a husband and daughter who remain in the PRC. The applicant arrived in Australia on 21 November 2005, having legally departed from the PRC on a passport issued in her own name, and a class 676 visa.
On 29 November 2005, the applicant lodged an application for a protection (class XA) visa with the Department. In a statement provided in support of her protection visa application, the applicant claimed that she feared persecution by the PRC authorities because she is a Falun Gong practitioner.
The applicant claimed that she commenced her Falun Gong practice following 1995, when she was ill. The applicant claimed that, in September 2003, the police broke into her home and showed her an arrest warrant, resulting in her being sentenced to three months' imprisonment and subsequently losing her job. The applicant claimed that, after she was released, she continued to practice Falun Gong, although had to hide herself whilst practising.
On 17 February 2006, a delegate of the first respondent (“the Delegate”) refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol (“the Convention”).
On 20 March 2006, the applicant lodged an application for review of a Delegate's decision by the Refugee Review Tribunal. The applicant made no further claims in support of her application for review, and provided no further material.
On 10 April 2006, the Tribunal wrote to the applicant at the address identified by her on her application for review as her mailing address, informing her 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.
The applicant was invited to come to a hearing of the Tribunal and give oral evidence and present arguments in support of her claims. The date, time, and place were identified in the letter. The letter informed the applicant that, if she did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on her case without further notice. The letter informed the applicant that if she thought she may be unable to attend the hearing, she must contact the Tribunal immediately. The letter enclosed a ‘Response to Hearing Invitation’ form and a request that the applicant complete that form and return it to the Tribunal. The letter also invited the applicant to send any new documents or written arguments that she wished the Tribunal to consider.
On 1 May 2006, the applicant completed a ‘Response to Hearing Invitation’ form and returned it to the Tribunal indicating that she did wish to come to a hearing. That form was received by the Tribunal on 1 May 2006, however, the applicant did not appear before the Tribunal on the day and at the time she was scheduled to appear. The Tribunal, in purported reliance on s.426A of the Act, decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal noted that it had before it the applicant's protection visa application, and the Delegate's decision record. The Tribunal observed that, because the applicant did not attend an oral hearing, her claims could not be tested by the Tribunal.
The Tribunal noted that there was nothing to support the applicant's unsubstantiated assertions contained in her statement in support of her protection visa application. The Tribunal found that there was insufficient material before it as to the detail of the applicant's practice to enable the Tribunal to establish the relevant facts.
The Tribunal noted that, because the applicant did not attend the hearing, the Tribunal was unable to explore the detail of her claims, and was therefore unable to be satisfied that any of her claims are true. In particular, the Tribunal was not satisfied on the evidence before it that the applicant was a Falun Gong practitioner in the PRC; that she was arrested and sentenced to three months' imprisonment, and that she lost her job. Accordingly, the Tribunal was not satisfied on the evidence before it that the applicant faces a real chance of persecution, should she return to the PRC, now or in the foreseeable future.
The Tribunal was unable to be satisfied on the evidence before it that the applicant has a well-founded fear of persecution for a Convention reason and concluded that, having considered the evidence as a whole, it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 4 July 2006, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision. Pursuant to directions made by this Court on 3 August 2006, the applicant filed an amended application on 12 October 2006.
The applicant was unrepresented before the Court this afternoon, although had the assistance of a Mandarin interpreter. The applicant confirmed that it was the amended application upon which she relied this afternoon, and the grounds of the application were read to the applicant by the interpreter.
The applicant was invited to make submissions in respect of the grounds contained in the amended application; however, she did no more than state she had nothing to say.
The grounds of the amended application are in the following terms:
“The Tribunal had bias against me and failed to assess the chance of my persecution on my return to china (sic). The Tribunal therefore failed to consider my application according to S91R of the Migration Act.
2. The Tribunal did not notify me the reason or part of the reason for affirming the decision, the Tribunal did not provide me an opportunity to explain the reason and did not explain to me why the information was relevant to my application. The Tribunal did not consider my application according to S424A of the Migration Act.
3. The Tribunal did not provide me adequate particulars of the independent information.
4. The Tribunal’s satisfaction that I am not a refugee was note based on a rational or logical foundation for this belief.”
The grounds are formulaic and contain no particulars.
Ground 1 alleges bias by the Tribunal against the applicant in assessing her chance of persecution on her return to the PRC. There are no particulars in respect of the bias alleged beyond its mere assertion. There is nothing on the face of the Tribunal's decision that would cause a fair-minded observer to conclude that the Tribunal approached its review other than with a mind open to persuasion. In the circumstances, any complaint in respect of bias, either actual or apprehended, is rejected.
To the extent that ground 1 complains that the Tribunal failed to consider the applicant's application according to s.91R of the Act, the Tribunal recited in full in its decision the applicant’s statement in support of her protection visa application.
Despite requesting the applicant to provide further material in support of her review application, nothing further was received by the Tribunal from the applicant. Moreover, the Tribunal's letter of invitation to the applicant to come to a hearing informed her 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 that information alone.
The Tribunal identified the relevant legal tests in considering the claims made by the applicant, and noted that the Tribunal is not required to accept uncritically any and all of the allegations made by the applicant, and noted that the law requires the decision-maker, such as the Tribunal, to be satisfied that an applicant before it is a refugee.
The Tribunal expressed its concern about the lack of opportunity to test the applicant's claims at a hearing, and found that there was insufficient material provided by the applicant in support of her claims to satisfy the Tribunal that she is a refugee.
Section 65 of the Act mandates that it is for an applicant to satisfy a decision-maker such as the Tribunal that she meets the criteria necessary for a protection visa application, and that if a decision-maker such as the Tribunal is not satisfied that the criteria are met, then that decision-maker must refuse a protection visa.
Because of the paucity of the material before the Tribunal, the Tribunal was not able to be satisfied that the applicant was a Falun Gong practitioner in the PRC, nor that she suffered persecution by reason of being a Falun Gong practitioner.
Those conclusions were open to the Tribunal on the material before it, and the applicant's claim that the Tribunal failed to consider her application according to s.91R of the Act is rejected.
Accordingly, ground 1 is rejected.
Ground 2 of the applicant's amended application asserts that the Tribunal did not provide the applicant with an opportunity to explain why information was relevant to her application, and therefore breached s.424A of the Act.
However, there was no information given by the applicant to the Tribunal which was part of the reason for the Tribunal affirming the decision under review. Rather, it was the paucity of material and the absence of information that was the reason for the Tribunal's conclusion that it was not satisfied about the applicant's claims. In those circumstances, there was no information used by the Tribunal that enlivened the obligations under s.424A of the Act.
Accordingly, ground 2 is rejected.
Ground 3 of the amended application complains that the Tribunal did not provide particulars of the independent information to the applicant. This ground is misconceived in that there was no use by the Tribunal of any independent information in its decision to affirm the decision under review.
Accordingly, ground 3 is rejected.
Ground 4 complains that the Tribunal's decision was not based on a rational logical foundation. This ground appears to be no more than a disagreement with the conclusion of the Tribunal that it was not satisfied that the applicant is a refugee. As stated above, the Tribunal's conclusions were open to it on the material before it, and for which it provided reasons.
Accordingly, ground 4 is also rejected.
For completeness, I note that the Tribunal's letter inviting the applicant to come to a hearing is an invitation sent in accordance with its duty under s.425 of the Act, and there is no allegation by the applicant that, indeed, the Tribunal acted otherwise than in accordance with that duty.
The Tribunal, in its decision, recounted the Tribunal's correspondence with the applicant in inviting her to come to a hearing, and her response. However, s.426A of the Act entitles the Tribunal to decide to proceed with its review without taking any further action to enable the applicant to appear before it, if an applicant fails to appear on the day and at the time at which she was scheduled to appear, as long as the Tribunal is satisfied that the applicant was invited to appear before the Tribunal in accordance with s.425 of the Act.
Section 425 requires the Tribunal to invite the applicant to attend a hearing in accordance with s.425A of the Act. That letter was sent to the applicant's mailing address as identified in her review application, and in the circumstances, the Tribunal was entitled to exercise its discretion, as it did in accordance with s.426A of the Act, to proceed with its review without taking any further action to enable the applicant to appear before it.
The Tribunal's decision is not affected by jurisdictional error, and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere, and the applicant's proceeding before this Court, commenced by way of application filed on 4 July 2006, is dismissed.

RECORDED : NOT TRANSCRIBED

The first respondent seeks costs fixed in an amount of $4000. I note that sum is less than the amount provided under the relevant costs schedule of the Federal Magistrates Court Rules 2001.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 20 December 2006