SZJDO v Minister for Immigration

[2006] FMCA 1768

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJDO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1768

MIGRATION – Review of decision by Refugee Review Tribunal – Refugee Review Tribunal sent applicant invitation to hearing and ‘Response to Hearing Invitation’ form – no response received by Refugee Review Tribunal to hearing invitation – applicant did not attend hearing before Refugee Review Tribunal – whether Refugee Review Tribunal complied with s.424A of Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36; 65; 424A; 425; 425A; 426A; 474; pt.8 div.2

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195

Applicant: SZJDO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2136 of 2006

Judgment of: Emmett FM

Hearing date: 15 November 2006

Date of last submission: 15 November 2006

Delivered at: Sydney

Delivered on: 15 November 2006

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the Respondent: Mr K. Sinnadurai, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2136 of 2006

SZJDO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 June 2006 and handed down on 6 July 2006. 

2. The applicant was born on 22 December 1959 and claims to be a citizen of the People’s Republic of China (“the PRC”).  The applicant arrived in Australia on 3 February 2006, having legally departed from Hangzhou Airport on a passport issued in her own name. 

3. On 13 February 2006, the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs.

4. In her protection visa application, the applicant claimed that she feared persecution by the Chinese government because she had always been a very outspoken critic of the Chinese government policies.  She stated that the Chinese officials warned her and threatened to put her in jail on many occasions.  The applicant stated that while she was in New Zealand recently, she received a call from a member of her family telling her that the police had been to her house to arrest her and that she should not return to China. 

5. On 13 March 2006, a delegate of the first respondent (“the Delegate”) refused the applicant’s application for a protection visa on the basis that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). 

6. On 13 April 2006, the applicant filed an application for review with the Tribunal of the Delegate’s decision.  The applicant did not provide any further material in support of her application beyond the claims made in her protection visa application. 

7. On 19 April 2006, the Tribunal wrote to the applicant acknowledging receipt of her application and, inter alia, requesting her immediately to send any documents, information or other evidence she wished the Tribunal to consider.  There is no evidence before me of any further material being provided to the Tribunal or of any response to the Tribunal from the applicant and none is asserted by the applicant. 

8. On 3 May 2006, the Tribunal wrote to the applicant inviting her to attend a hearing and 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 material alone.  The letter informed the applicant that the Tribunal would only change the hearing date for good reasons and that, if the applicant thought she may be unable to attend the hearing, she should contact the Tribunal immediately because, if she did not do so and the Tribunal did not postpone the hearing, it could make a decision on her case without further notice.  The letter enclosed a ‘Response to Hearing Invitation’ form and requested the applicant to complete that form and return it to the Tribunal. 

9. The applicant did not appear before the Tribunal on the day and at the time and place indicated in the Tribunal’s letter dated 3 May 2006. 

   
   

   The Tribunal noted that such a letter had been sent to the applicant and that no response had been received.  The Tribunal noted that the letter was sent to the applicant’s last known address, that address being the address identified by the applicant in her application for review as her mailing address and her address for service.  The Tribunal noted that the letter was not returned and noted that the applicant did not appear. 

10. The Tribunal then purported to exercise its discretion in accordance with s.426A of the Act in deciding to proceed or to make its decision on the review without taking any further steps to enable the applicant to appear before it.

11. Where the Tribunal complies with the statutory regime of the Act in inviting an applicant to attend a hearing and the applicant does not attend, s.426A of the Act provides a discretion for the Tribunal to proceed with its review without taking any further action to allow or enable the applicant to appear before it. Section 425 of the Act sets out the requirement of the Tribunal to invite the applicant to appear and s.425A of the Act states the requirements that such a letter must fulfil.

12. There is no evidence before me to suggest that the Tribunal did otherwise than comply with the statutory regime.  Its letter, dated

    
    

    3 May 2006, was sent to the applicant at her identified address for service. The letter provided the relevant details to the applicant of the date, time and place of the hearing. The hearing date complied with the time frame required under the Regulations and the Act. In the circumstances, there is no error in the decision of the Tribunal to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it.

13. The Tribunal went on to consider the claims made by the applicant in her primary application and found that there was a paucity of information and evidence relating to those claims. 

14. The Tribunal identified with particularity the claims made by the applicant and the matters of concern that the Tribunal would have further explored with the applicant at a hearing.  In particular, the Tribunal noted that the applicant provided no corroborative information or evidence, that she did not mention any particular political activity in which she engaged that attracted adverse attention of the Chinese authorities and she did not give particulars of threats that she alleges, or why she was not arrested.  The Tribunal noted that, but for the applicant’s bare assertion that she had always been an outspoken critic, she did not say what she had done to attract any persecutory treatment from the Chinese authorities. 

15. The Tribunal noted the principles in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 and acknowledged the difficulties for an applicant in proving allegations sufficient to satisfy the grant of a protection visa. The Tribunal noted, however, that it had provided an opportunity for the applicant to give oral evidence in support of her claims, but that the applicant had failed to attend or respond to the invitation.

16. There is no evidence before me of any attempt by the applicant to contact the Tribunal to seek to postpone the hearing date.  The Tribunal noted that it was therefore not provided with an opportunity to question the applicant or seek to clarify by way of further evidence her claims, nor was there an opportunity for the Tribunal’s concerns to which it had referred to be explored.  The Tribunal concluded that the paucity of the evidence and the general lack of detail in the claims by the applicant undermined the veracity of her claims.  The Tribunal stated:

    “In the absence of any further information or evidence relating to her claims, the Tribunal finds the applicant’s allegations are not credible.”

17. The Tribunal concluded that having considered the evidence before it, 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 and that, accordingly, the applicant did not satisfy the criterion for refugee status set out in s.36 of the Act.

The proceeding before this Court

1. On 4 August 2006, the applicant sought judicial review of the Tribunal’s decision.  Pursuant to directions, the applicant filed an amended application on 4 October 2006.  The amended application relied on grounds in the following terms:

   “1. The Tribunal did not refer to independent information for the consideration of my application for a protection visa. The Tribunal refered (sic) to out to (sic) date information for consideration of my application, did not refer to any correct independent information.

   2. Because of the bias towards me, the Tribunal did not consider my application according to S91R of the Migration Act and S424A of the Migration Act. The Tribunal failed to assess my chance of my persecution on my return to China. The Tribunal failed to carry out its statutory duty. I was notified the reason or part of the reason for affirming the decision, I did not have the opportunity to comment upon it.

   3. The Decision from RRT has not been support by sufficient evidence.”

2. The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter. 

3. The applicant, when invited to make submissions in support of her application, submitted that the Tribunal did not consider the difficulties that she would face if she were to return to the PRC and that the Tribunal refused her application in a very short time frame.  She further stated that she did not get the Tribunal’s invitation to attend a hearing.  However, for the Reasons referred to above, such an assertion cannot amount to jurisdictional error on the part of the Tribunal in proceeding with its review.  It had otherwise complied with its statutory obligations. 

4. The applicant confirmed that it was the amended application upon which she relied this morning and that she in fact had written each of the grounds upon which she relied.  When asked whether she wished to make submissions in support of each of the grounds as each was read to her, she was unable to make any meaningful submissions in support of any of the grounds.  She stated that the Tribunal did not get any evidence from her and did not ask her questions and did not ask her to provide oral answers.  She stated that she required more time to gather more evidence. I confirmed with her whether she was in fact seeking an adjournment and she confirmed that she was.  In reasons given in a separate extempore judgement this morning that application for an adjournment was refused.  

5. I now turn to the grounds of the applicant’s application. 

6. Ground 1 appears to be a complaint that the Tribunal did not refer to independent information; that it referred to out of date information and that it did not refer to any correct information. 

7. The Tribunal, in its decision, did not make reference to any independent country information, nor in light of the reasons and conclusions of the Tribunal was it required to do so.  It is a matter for the Tribunal the independent evidence to which it has regard and the weight that it gives such evidence (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]). 

8. In the matter before this Court, the Tribunal affirmed the decision under review solely on the basis of the consideration of the applicant’s claims and having regard to the paucity of the evidence and the general lack of detail in the applicant’s claims, was unable to be satisfied that the applicant met the criteria for refugee status. In those circumstances, pursuant to s.65 of the Act, the Tribunal was required to refuse the applicant’s protection visa.

9. There is no error in the Tribunal’s decision of the nature alleged in Ground 1. 

10. Accordingly, Ground 1 is not made out.

11. Ground 2 contains no particulars and, despite several requests by the applicant to provide such particulars orally, none were given. 

12. To the extent that Ground 2 is a complaint of bias by the Tribunal, that is a serious allegation.  There is nothing on the face of the decision or the conduct by the Tribunal of its review process that would indicate bias, either actual or apprehended. 

13. To the extent that Ground 2 complains that the Tribunal failed to carry out its statutory duty, again such allegation is not particularised. 

    
    

    The Tribunal complied with its obligations to invite the applicant to attend a hearing.  The Tribunal considered the claims made by the applicant.  It is apparent from the Tribunal’s decision that it dealt with those claims, such as they were, in a comprehensive fashion and made conclusions that were open to the Tribunal on the evidence and material before it and for which it gave reasons. 

14. To the extent that Ground 2 purports to assert a breach of s.424A of the Act, the applicant does not identify any information to which the Tribunal had regard that formed part of the reason for it affirming the decision under review. The Tribunal had regard to the material contained in the applicant’s protection visa application and, having read the material and evaluated its content and weight, found itself unable to be satisfied that the applicant’s claims were made out.

15. To use the language of Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29], the reason for the Tribunal’s decision was simply and no more than the evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and intrinsic explanation which had been invited.

16. Whilst the Tribunal used the words that it finds the applicant’s allegations are “not credible”, I accept the submission of the first respondent that such words, in the context of the Tribunal’s decision, reveal no more than the Tribunal’s conclusion that it was not satisfied about the claims made by the applicant. 

17. In the circumstances, there is no breach of s.424A of the Act. In the circumstances, Ground 2 is not made out.

18. Ground 3 is again unparticularised. 

19. The Tribunal has plainly provided the reasons upon which it relied in not being satisfied that the applicant met the criteria for being a refugee.  The Tribunal, as stated above in these Reasons, identified the applicant’s claims and identified the concerns that it had about the lack of detail in support of those claims and those aspects of the applicant’s claims that it would have explored at a hearing. 

20. In the circumstances, Ground 3 is not made out.

Conclusion

1. 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 proceeding before this Court is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  27 November 2006