SZJEM & Anor v Minister for Immigration
[2007] FMCA 1303
•6 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJEM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1303 |
| MIGRATION – Application for review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – application for a show cause decision under r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| First Applicant: | SZJEM |
| Second Applicant: | SZJEN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2186 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Advocate for the Applicants: | The first applicant appeared in person with the assistance of a Cantonese interpreter |
| Solicitors for the First Respondent: | Ms T Quinn of DLA Phillips Fox |
ORDERS
(1)The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
(2)The application filed on 9 August 2006 is dismissed.
(3)The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2186 of 2007
| SZJEM |
First Applicant
And
| SZJEN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonyms “SZJEM” (applicant husband) and “SZJEN” (applicant wife). The only appearance was by the applicant husband. He indicated that he appeared on behalf of his wife and she had no separate claims for protection but relied on his claims.
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 of Australia on 9 August 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 22 June 2006 and the first applicant was advised by letter dated 13 July 2006. The Tribunal decision affirmed a decision of a delegate of the first respondent made on 27 February 2006, refusing to grant the applicant a Protection (Class XA) visa.
The applicants apply for 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 of 22 June 2006.
The first respondent filed a response to these proceedings on 28 August 2006 opposing the application for an order to show cause on the grounds that:
1. The application filed on 9 August 2006 states that the applicant did not attend the RRT hearing due to illness, and that the RRT referred to country information unfavourable to the applicant. The First Respondent contends these matters do not identify any jurisdictional error.
2. Other claims that the RRT identified the wrong issue and made an erroneous finding are completely unparticularised.
3. Therefore the First Respondent opposes the application on the basis that no reasonable cause of action is shown.
Background
The Tribunal decision of I O’Connell, reference N0653380, contains the following background information:
The Applicants, who claim to be citizens of the People’s Republic of China arrived in Australia on 7 December 2005 and applied to the Department of Immigration and Multicultural Affairs for Protection (Class XA) visas on 25 January 2006. The delegate decided to refuse to grant the visas on 27 February 2006. The Applicants applied to the Tribunal on 24 March 2006 for review of the delegate’s decision.(CB 82)
The applicants’ claims are set out in the protection visa application:
The Applicants are husband and wife. They come from Guangdong and are aged 53 years and 54 years of age. They list their ethnic group as Han and their religion as Falun Gong. The Applicant husband states that he is a farmer.
In a statement of claims attached to the protection visa application the Applicant husband states that he took up the practice of Falun Gong to improve his health and that after the outlawing of Falun Gong he participated in rallies and distributed leaflets to protest against the Chinese government’s treatment of Falun Gong.
He states that in June 2005 his parents were questioned about the Applicant and his involvement in Falun Gong and showed this parents photographs they had of the Applicant participating in protests. His parents informed him of this and he and his wife decided to flee China.(CB 84-85)
No additional claims are set out in the application for review.
Tribunal’s Finding and Reasons
The Tribunal decision records the following brief statement:
The Applicants were advised that the Tribunal was unable to make a decision in their favour on the information provided in the protection visa application and in the application for review. The Applicants did not appear before the Tribunal to elaborate upon their claims.
The main Applicant claims to fear harm because of his participation on Falun Gong and Falun Gong protests against the Chinese government’s position on Falun Gong. However, the mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randwhawa v MIEA (1994) 52 FCR 437 @ 451).
The Tribunal has a number of issues upon which it requires a good deal more detailed evidence about the Applicant’s claimed involvement in Falun Gong before it could be satisfied that the Applicants are in genuine fear of persecution and that there is a real chance that they will be persecuted on their return to China.
Accordingly, the Tribunal is not satisfied that the Applicant’s have a well-founded fear of persecution for a Convention reason on their return to China.(CB 85)
Application for Review of the Tribunal’s Decision
On 9 August 2006 the applicant filed an application for review in this Court under s.39B of the Judiciary Act. At the first Court date, leave was granted for the applicants to file an amended application giving complete particulars of each ground of review relied upon, by 2 November 2006. On 31 October 2006, an amended application was filed setting out the following grounds:
1. Under Article 1A(2) of Refugee Convention, the applicants meet the definition of refugee. They owe well-founded fear of being persecuted for reasons of religion (Falun Gong); are outside P.R China and unable and unwilling to avail themselves of the protection of P.R China. Australia has protection obligation to the applicant who is a refugee.
2. The Tribunal commits a jurisdictional error since it identifies a wrong issue and makes an erroneous finding and reach a wrong decision under Migration Act sec 36(2), the applicants are the persons Australia has protection obligations to.
3. The DIMIA Refugee Tribunal commits a jurisdiction error since it refers to the country information infavourable for the applicants. In the DIMIA’s decision, the applicants were accepted to be a Falun Gong Practitioner but it concluded that applicant would not be subject to harm. The information applied show that Falun Gong’s ordinary adherents are unlikely to be in danger of serious mistreatment.
Submissions and Reasons
The applicant husband is a self-represented litigant who appeared with the assistance of a Cantonese interpreter. He also appeared before me at a first Court date directions on 5 September 2006. At that time, I indicated that he faced difficulties with his application as the material before the Court indicated that he had been invited to a Tribunal hearing but had failed to attend. These circumstances are clearly set out in the Tribunal’s decision under the heading “Claims and Evidence” which states:
On 18 April 2006 the Tribunal wrote to the Applicants, by letter addressed to the main Applicant advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the Applicants to give oral evidence and present arguments at a hearing on Tuesday 6 June 2006. They were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice. A no reply check was carried out (see Folio 20-21 Tribunal file).
On Monday 5 June 2006 the first named Applicant advised the Tribunal that he wished to attend a hearing but that he would like the hearing to be set down for a later date (see Folio 22 Tribunal file). In an unsigned letter the Applicant advised the Tribunal that he had a “serious cold” and that he would not be well enough to attend the hearing on Tuesday 6 June 2006 (see Folio 24 Tribunal file).
On Thursday, 15 June 2006 the first named Applicant in an unsigned letter advised the Tribunal that he was “still feeling terrible” and that he wished to postpone the hearing set down for 16 June 2006 (see Folio 31 Tribunal file). The Tribunal made telephone contact with the person whom the Applicant had requested that the Tribunal communicate with him and advised that a medical certificate would be required before the Tribunal would agree to further postponements of the hearing (see Folio 32 Tribunal file). No medical certificate was provided to the Tribunal.
The Applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. In these circumstances, and 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 Applicants to appear before it.(CB 84)
The applicant husband was advised that the Court had received his amended application but not any written submissions. He confirmed that this was correct. When asked if he wished to make any oral submission in support of his application, he simply stated “I would like to ask if it’s possible for me to stay here longer”. After I explained the role of this Court, the applicant repeated the question.
Before the commencement of this hearing, the applicant informed my Associate that he was not able to read the first respondent’s written submissions and requested that they be translated to him by the interpreter. This was done. I said that since the submissions had been read to him, I did not intend to hear from Ms Quinn, for the first respondent, unless she wished to make any supplementary submissions. Ms Quinn stated that she would rely on her written submissions. The applicant was then invited to respond to any issues which arose from the written submissions. He declined to do so, but indicated that his lawyer had “left, run way and had taken all [the applicants’] papers with him.” Upon limited questioning, it appeared he was referring to an unregistered migration agent, whose office address and contact details were unknown as they met in a restaurant in an unknown location. The applicant admitted that he did not have the agent’s business card but had paid him a substantial fee.
The first respondent’s written submissions state:
14. The reason for the RRT’s decision was that, based on the absence of evidences before it, it was unable to reach the required state of mental satisfaction that the applicant had a well-founded fear of persecution for a Convention reason. In these circumstances no s 424A obligations arose: SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11 at [29]-[30] per Allsop J, followed in SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238.
15. The RRT was not able to be affirmatively satisfied that protection obligations were owed to the applicant. Therefore it had no option but to refuse to grant him a protection visa. In SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] (see also VSAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1270) Ryan, Jacobson and Lander JJ held that section 65(1) of the Act:
…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 grant of the visa in question have been satisfied.
16. No other possible jurisdictional error is apparent from the RRT’s decision.
16.1 The RRT complied with its obligations under sections 425 and 425A to invite the applicant to attend a hearing. When the applicant failed to attend the hearing the RRT was entitled to proceed as it did pursuant to s 426A.
16.2 Having already rescheduled the hearing once at the applicant’s request, it was reasonable for the RRT to require a medical certificate when a second postponement was requested, and to refuse to adjourn the hearing when nothing was provided: see generally NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [35]-[36].
17. The grounds in the amended application are almost entirely merits related. The applicant claims that he meets the refugee definition, and seeks to engage the Court in merits review. This is not the function of a Court conducting judicial review of an RRT decision, as here (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10] and Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
18. The application also claims that there was an error of fact in the RRT’s decision. However, the RRT did not reach any positive factual findings rejecting or accepting the applicant’s claims. In any event, it is a well established principle that even it a factual finding is incorrect that is not sufficient, in and of itself, to constitute jurisdictional error: see MZWBW v Minister for Immigration and Multicultural Affairs [2005] FCAFC 94 at [28]; Applicant A169 of 2003 v Minister for Immigration and Multicultural Affairs [2005] FCAFC 8 at [31] and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 at [37].
19. The reference to country information in the amended application is also misconceived, as the RRT does not refer to any country information in the decision.
Conclusion
Clearly, the Tribunal dismissed the application because it was unable to reach the level of satisfaction it was required to under the Act. As the applicants failed to attend the hearing, and in light of the Tribunal’s reasons, the grounds contained in the applicants’ amended application have little meaning.
I am satisfied that the Tribunal has complied with the provisions of the Act and that no jurisdictional error occurred. Consequently, the application that the respondents show cause should be dismissed. The application filed on 9 August 2006 should also be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicants pay the first respondent’s costs and disbursements, of and incidental to this application, fixed in the sum of $2,700.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 7 August 2007
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