SZJCZ v Minister for Immigration
[2006] FMCA 1668
•13 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJCZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1668 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – where applicant did not attend Tribunal hearing – where applicant consented to the Tribunal making a decision without allowing her to appear before it – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A (1) – no reviewable error. PRACTICE & PROCEDURE – The date of a decision of the Tribunal is the date on which the decision is handed down, not the date on which it is signed. |
| Migration Act 1958 (Cth), ss.424A, 425, 430B, 474 |
| SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 followed. SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 referred to. SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 followed. |
| Applicant: | SZJCZ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2094 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 October 2006 |
| Date of Last Submission: | 19 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 November 2006 |
REPRESENTATION
| Solicitor for the Applicant: | Ray Turner |
| Solicitor for the Respondent: | Ms Quinn |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2094 of 2006
| SZJCZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal handed down on 4th July 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
The Applicant, in an amended application filed in Court on the day of the hearing, seeks:
a)a declaration that the Tribunal decision was made in error of jurisdiction and is therefore null and void; and
b)orders in the nature of certiorari and mandamus.
Background
The Applicant is a citizen of the People’s Republic of China who arrived in Australia on 6th February 2006 and applied for a Protection (Class XA) visa on 23rd February, claiming a fear of persecution as a Falun Gong practitioner. A delegate of the Minister refused the application on 28th March 2006, so the Applicant applied to the Refugee Review Tribunal for a review of that decision.
Application for review by the Refugee Review Tribunal
The Applicant lodged an application for review at the Sydney Registry of the Tribunal on 1st May 2006. She did not provide any additional documentation with her application.
The Tribunal wrote to the Applicant on 10th May 2006, 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 that information alone. The Tribunal invited her to attend a hearing on
21st June 2006.
The Applicant sent back the Response to Hearing Invitation Form dated 25th May 2006. She had placed a tick in the box beside the word ‘NO’, saying that she did not want to come to a hearing and she consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. She did not provide any further information to the Tribunal.
The Tribunal Decision
The Tribunal handed down its decision on 4th July 2006. A copy of the Decision Record is found on pages 61 to 66 of the Court Book. The Tribunal considered the Applicant’s claims and summarised them at pages 64 and 65 of the Court Book.
The Tribunal’s Findings and Reasons, which are relatively brief, are set out in four paragraphs that appear on page 65 of the Court Book.
The Tribunal stated that the Applicant had not provided any evidence to support her claims that she became an adherent of Falun Gong in 2003, nor did she say that she had practised Falun Gong in Australia.
The Tribunal went on to find:
On the basis of the scant evidence before it the Tribunal is unable to be satisfied that the applicant has ever practised Falun Gong in China or that she was detained after the authorities discovered Falun Gong materials in her home. As the Tribunal cannot accept the applicant’s claims on the facts it cannot be satisfied that she has a well-founded fear of persecution for a Convention reason.
The Tribunal was not satisfied that the Applicant satisfied the criterion set out in s.36(2) for a protection visa and affirmed the Tribunal’s decision not to grant the visa.
Application for Judicial Review
The Applicant commenced proceedings for review of the Tribunal’s decision on 7th April 2006. She obtained legal representation at a fairly late stage, and I granted her solicitor, Mr Turner, leave to file an amended application in court on the day of the hearing.
The grounds of the application are that the Tribunal failed to carry out its statutory duty. As can be seen from the particulars, it is essentially a claim that the Tribunal failed to comply with s.424A(1) of the Migration Act.
The particulars of the claim are:
a)The Tribunal had information adverse to the Applicant and failed to give particulars of that information to the Applicant, explain why it was relevant and provide her with an opportunity to comment upon it.
b)The Tribunal had information about Falun Gong practitioners in Australia.
c)The Tribunal compared that information to the information provided by the Applicant in her application for a protection visa.
d)The Tribunal found, on the basis of the above comparison, that the Applicant had never practised Falun Gong.
e)The adverse information was the description of the Applicant’s activities in China and the lack of mention of Falun Gong activities in Australia.
The Applicant’s claim centres on the third paragraph of the Tribunal’s Findings and Reasons:
The applicant has not provided any evidence to support her claims that she became an adherent of Falun Gong in 2003. Importantly, in the view of the Tribunal she does not say that she has practised Falun Gong in Australia nor that she has sought to gain the support of Fellow Falun Gong practitioners or the Falun Dafa Association of New South Wales. It is the experience of this Tribunal that representatives, spokes persons and ordinary practitioners of Falun Gong seek to provide oral and written evidence in support of fellow practitioners who are known to them and considered to be sincere and genuine in their practice. The applicant in this case has not provided any such evidence nor is there any other evidence to support the applicant’s assertion that she is a Falun Gong practitioner.
The Applicant claims that the Tribunal disclosed that it had information about Falun Gong practitioners in Australia and compared that information to the information given by the Applicant in her application for a protection visa. The Tribunal then found that, on the basis of that comparison, the applicant had never practised Falun Gong. The adverse information which the Tribunal had was the description of the applicant’s activities in China and the lack of any mention of Falun Gong activities in Australia.
The applicant relies on the decisions of Weinberg and Allsop JJ in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [165], [221] and [223]. Mr Turner submitted that this is not a case that relies solely on insufficiency of evidence but on the setting of an objective standard.
Ms Quinn, solicitor for the First Respondent Minister, submitted that the reason for the Tribunal’s decision to affirm the delegate’s decision was the scant evidence provided by the applicant. She referred to the decisions of Allsop J in SZEEU (supra) at [216], SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29] and SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [9].
Conclusions
In my view, the starting point is, as Allsop J said in SZCIA at [9],
Whether information is the reason or part of the reason depends upon a judgmental analysis of the reasons of the Tribunal for why the Tribunal came to the view it did.
I am satisfied that the Tribunal’s reason for affirming the delegate’s decision is the inadequacy of evidence provided by an applicant who did not attend the hearing, nor did she provide any further written evidence. The Applicant had been placed on notice by the Tribunal’s letter of 10th May 2006 that the Tribunal had considered the material before it but was unable to make a decision in her favour on that information alone. There was no more evidence provided, so the material that the Tribunal had was no more than it had before inviting the Applicant to attend a hearing. The Tribunal was unable to decide in favour of the Applicant on that material alone and nothing more was added.
I do not, with respect, agree with the Applicant’s contention that by mentioning the activities of people connected with Falun Gong in Australia the Tribunal was setting another standard. All the Tribunal was doing was setting out the sort of material it expected that the Applicant would have provided. It was probably unnecessary to do so.
The Tribunal’s experience of the activities of representatives, spokes persons and ordinary Falun Gong practitioners is certainly information for the purposes of s.424A. It is quite clearly, however, information that is not specifically about the Applicant or another person and is just about a class of persons of which the applicant or other person is a member. In other words, it falls squarely within the exception in s.424A(3)(a).
The information in the Applicant’s protection visa application was not information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision. All the Tribunal did with that information was consider it as part of the Applicant’s claim.
There is no breach of s.424A. There is no jurisdictional error.
The decision is a privative clause decision as defined in s.474(2). It is, therefore, final and conclusive and not subject to mandamus, declaration or certiorari (s.474(1)).
I should point out that the amended application seeks this order:
2. That the decision of the Refugee Review Tribunal on 14 June 2006 be set aside.
In my view, the order is incorrectly framed. The Tribunal signed the decision record on 14th June 2006, but the Tribunal did not hand down the decision until 4th July 2006. The date of the decision is the date on which the decision is handed down, not the date on which it is signed (s.430B (4)).
The application will be dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 13 November 2006
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