SZJAI v Minister for Immigration
[2007] FMCA 1293
•3 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJAI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1293 |
| MIGRATION – Review of a 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.91X, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZJAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1883 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 3 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the First Respondent: | Mr G Johnson of DLA Phillips Fox |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration & Citizenship”.
The application filed on 6 July 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1883 of 2006
| SZJAI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
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 “SZJAI”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court on 6 July 2006, for review of a Refugee Review Tribunal (“the Tribunal”) decision made on 17 May 2006, of which the applicant was notified by letter on 8 June 2006. The Tribunal decision affirmed a decision of a delegate of the first respondent made on 1 March 2006, refusing to grant the applicant a Protection (Class XA) visa.
The applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act in respect of the Tribunal decision. Pursuant to r.44.11(c) of the FederalMagistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with a hearing under r.44.12 on the first court date of 30 August 2006 and set the matter down for final hearing.
The first respondent filed a response on 14 July 2006 opposing the application for an order to show cause on the grounds that:
1. The application filed on 6 July 2006 alleges a failure by the RRT to comply with section 426A of the Act by denying the applicant a hearing through no fault of his own. The First Respondent contends that whether or not the denial of the hearing was the applicant’s fault is irrelevant to section 426A.
2. The application also alleges that the RRT decision was not based on probative material and involved jurisdictional error. However, no meaningful particulars are provided. It is only vaguely asserted that the RRT did not consider material which supported the applicant’s claims and relied on outdated country information.
3. As the application is not properly particularised, the First Respondent opposes it on the basis that no reasonable cause of action is shown.
Background
The Tribunal decision of P Pope, reference N0653427, provides the following background information:
The applicant, who claims to be a citizen of South Korea, arrived in Australia on 23 October 2005 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 5 December 2005. The delegate decided to refuse to grant the visa on 28 February 2005 and notified the applicant of the decision and his review rights by letter dated 1 March 2006 and posted on 1 March 2006. The applicant applied to the Tribunal on 30 March 2006 for review of the delegate's decision.(CB 62)
The applicant claims:
According to the application for a protection visa the applicant is a thirty three year old man. He states that he is a Korean national; his religion is Buddhism and he speaks, reads and writes Korean. He states that he completed high school education in Seoul, Korea in 1988 and stayed at home from 1988 until 1991. Thereafter he states that he worked in a dye factory from 1991 until October 2005. The applicant states that he has lived for the past ten years at an address in Seoul.
The applicant states that he was granted a Korean passport on 13 October 2004. He has provided information about travel to Malaysia and Vietnam in October 2005. He states that he arrived in Australia on 23 October 2005.
According to information provided by the applicant he commenced the practice of Falun Gong about two years ago. In about August 2005, when he was practising Falun Gong two men suddenly came upon him and asked him his name and asked him why he was practising Falun Gong. He says that he immediately knew that these two people worked for the Chinese government and had been sent there.
The applicant states a couple of days after when he was practising Falun Gong in the park two men came and forced him to go with them for investigation. In the car, they blindfolded him and made him sit with his head between his legs. They arrived at a house where the applicant was made to sit in the middle of the room and he was questioned while the men took notes. He says that he was very happy to tell him of his good experiences with Falun Gong but he was not willing go tell them the names of people or details about certain events when they asked him about these. He states that at last when they were not able to get more from him they released him. He says that he was scared and decided to leave the country.
The applicant says that the Chinese government knows his address and he fears that, if he goes back to his country he will be arrested privately; and will be tortured and brainwashed like people who practice Falun Gong in mainland China. He believes that people sent by the Chinese government will harm and mistreat him. He says that when he came to Australia he heard that there are many Chinese spies and even though he does not know how many Chinese spies there are in South Korea he can still imagine what will happen if he goes back to Korea.(CB 64)
Tribunal’s Findings and Reasons
The Tribunal states in its “Findings and Reasons”:
The applicant's claims were vague and lacking in detail. He does not state how he knew that two men who approached him in August 2005 and later took him for questioning about Falun Gong worked for the Chinese Government. He states that he was scared and decided to leave the country however, significantly he does not say that he reported the matter to the police or that he sought their protection. At the same time the applicant states that the two men released him when they could not get any more information from him. The applicant does not say whether the men approached him after his time and in the following weeks prior to his departure from Korea.
The applicant has not provided any evidence to support his assertion that he is a Falun Gong practitioner. In view of the lack of detail in the protection visa application the Tribunal cannot be satisfied that the applicant is a Falun Gong practitioner or that he came to the attention of persons who were acting on behalf of the Chinese government in Korea. The applicant does not say that he sought protection from the Korean state authorities after the alleged incident and this is a matter that the Tribunal would have further explored had the applicant availed himself of the opportunity to present argument at a hearing for the Tribunal. As the Tribunal cannot accept the applicant's claims on the facts it cannot be satisfied that he has a well founded fear of persecution in Korea for a Convention reason.(CB 65-66)
Application for Review of the Tribunal Decision
On 6 July 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act setting out the following grounds:
1. 1. The Refugee Review Tribunal (the “RRT”) failed to comply with section 426A of the Migration Act 1958.
Particulars
a. The RRT acted in breach of s426A as the applicant was denied a hearing through no fault of his own.
2. 2. The RRT constructively failed to exercise its jurisdiction.
Particulars
a. The RRT failed to conduct a real, rather than purported exercise of its jurisdiction to determine whether the applicant was a Christian as he claimed.
b. The RRT improperly precluded itself from considering the material which supported the applicant’s claim that he has assisted North Korean Refugees.
3. The RRT’s satisfaction was reached in the absence of probative material and/or logical grounds and was thereby not rationally formed.
At the first Court date of 31 August 2006, the applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon, by 2 November 206. The applicant was also granted leave to file any additional affidavits by the same date. Nothing was filed.
Submissions and Reasons
The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. The Tribunal decision states under the subheading “Claims and Evidence”:
On 12 April 2006 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on the information alone. The Tribunal invited the applicant to give oral evidence and present argument at a hearing on 17 May 2006. The letter was sent to the applicant's residential address, which is also the address to which the applicant specified all correspondence was to be directed. The applicant did not respond to the Tribunal's invitation and has not been contacted by the Tribunal. The Tribunals’ letter has not been returned unclaimed. In these circumstances, and pursuant to s.426A of the Act, the Tribunal had decided to make its decision on the review without taking any further action to enable the applicant to appear before it.(CB 64)
A copy of that letter (CB 51-52) was sent addressed to the applicant at the address recorded in his Tribunal application (CB 45-48) under the sections titled “Residential address in Australia” and “Address for correspondence”. This address also appeared on the applicant's protection visa application and remained unchanged on all correspondence, including the application filed in this Court. The applicant confirmed at the commencement of today's hearing that he still resides at this address.
Solicitors for the first respondent filed written submissions which addressed each of the grounds of review in the application:
Ground one – failure by RRT to comply with section 426A
15. As the RRT was unable to be satisfied as to the claims made by the applicant, the RRT exercised its discretion under section 426A, which it was entitled to do, to determine the matter without taking any further action to enable the applicant to appear before it.
16. Where insufficiency of information is the only basis for the RRT’s decision, the question arises as to whether the RRT must comply with any obligation (wherein failure leads to jurisdictional error) in circumstances where the applicant has failed to make out a case. In SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225, the Full Court, at [15]-[16], concluded a legislative regime which required a positive state of satisfaction as to whether protection obligations are owed mandated a refusal decision if that state of satisfaction is not reached.
17. This conclusion is supported by the Full Federal Court decision of NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208.
Ground two – failure by RRT to constructively exercise its jurisdiction
18. The particulars of this ground do not appear to relate in any way to the present proceedings. The applicant did not, at any time claim to be a Christian, nor did he advance any claim to be assisting North Korean refuges.
19. The RRT clearly cannot be in the position of having failed to exercise its jurisdiction in relation to non-existent claims.
Ground three – failure by RRT to base satisfaction on probative material and/or logical grounds
20. The applicant has provided in particulars in support if this ground, and it should be disregard by the Court. Indeed, it was the very absence of evidence provided by the applicant to the RRT that led the RRT, at CB 66, to conclude that it could not be satisfied as to the applicant’s claims.
I accept the submissions made by the first respondent in respect of the first, second and third grounds with particular reference to SJSB v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15]-[16] per Ryan, Jacobson and Lander JJ:
15 It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. A criterion for a protection visa specified in s 36(2) of the Act 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.’
16 It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention. As Gummow and Hayne JJ observed in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister;
‘The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.’
Moreover, the Tribunal was entitled, in assessing whether the appellant had a well-founded fear of persecution if he were returned to Sri Lanka to take account of the fact noted in the extract quoted at [6] above that "according to the Applicant’s own evidence he departed Sri Lanka legally and without difficulty.”
I also refer to NAST v MinisterImmigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [3]-[5] per Beaumont, Merkel and Hely JJ, which discusses circumstances similar to the one before me today:
3 By a letter dated 6 March 2003 the RRT informed the first appellant that it had considered the material before it in relation to her application for a protection visa, but was unable to make a decision in the first appellant’s favour on the basis of that information alone. Accordingly, the appellant was invited to a hearing before the RRT to be held on 7 May 2003. The first appellant did not attend this hearing. Pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’) the RRT decided to make its decision on the review without taking any further action to enable the appellants to appear before it. That was a course which the RRT was entitled to adopt.
4 In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.
5 In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.
There are three grounds of review in the application to this Court. The first ground, I believe, is satisfactorily addressed by the discretion under s.426A. From a review of the Tribunal decision and all the material contained in the Court Book, it is extremely difficult to see how the second ground can arise, as the applicant made no reference to his activities as a Christian, and also stated in his original visa application that he was Buddhist. I also cannot find reference to any suggestion that he was actively assisting refugees from North Korea. As for the third ground, it is not possible for this Court to determine how that ground can arise without supporting evidence.
In the circumstances, the application should be dismissed with costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 6 August 2007
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