SZJFZ v Minister for Immigration - [2007] FMCA 1523

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJFZ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1523

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth) ss.425, 426A

NAST vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
SJSV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215

Applicant:

SZJFZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2313 of 2006

Judgment of:

Barnes FM

Hearing date:

20 August 2007

Delivered at:

Sydney

Delivered on:

20 August 2007

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

That the title of the first respondent shall be amended to the Minister for Immigration and Citizenship.
That the application is dismissed.
That the applicant shall pay the costs of the first respondent fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2313 of 2006

SZJFZ

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the tribunal) handed down on 3 August 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, arrived in Australia in February 2006 and applied for a protection visa. Her claims were set out in a statement accompany her protection visa application. Her application was refused and she sought review by the tribunal.
In her review application she provided the tribunal with an address in Ultimo as her residential address and address for correspondence. She did not nominate a migration agent or authorised recipient. The material before the court contains a file copy of a letter dated 16 May 2006 addressed to the applicant at that Ultimo address inviting her to attend a hearing on 13 July 2006 at a time and place specified and advising her that if she did not attend and the tribunal did not postpone the hearing, it could make a decision on her case without further notice.
Also in the material before the court is a tribunal form with change of address details dated 16 May 2006, stamped “Received 19 May 2006” and completed in the name of the applicant with details of a new home address in Chatswood and a new mailing address being a specified post office box in Pymble.
A letter dated 22 May 2006 from the Tribunal addressed to the applicant at that Pymble post office box refers to the hearing invitation letter of 16 May 2006 and indicates that the tribunal had received no response, but now had a more recent address and so was sending an invitation to that address. It repeated, as had been set out in the letter of 16 May 2006, the date, time and place of the proposed hearing reiterated that if the applicant thought she might not be able to attend she must contact the tribunal immediately and that if she did not attend and the tribunal did not postpone the hearing, it could make a decision on her case without further notice. On 7 June 2007 the Tribunal received a completed response to hearing form indicating that the applicant intended to attend the hearing.
In its reasons for decision, the tribunal recorded that it wrote to the applicant on 16 May 2006 inviting her to attend the hearing on 13 July 2006 and that the applicant informed the tribunal in writing on 7 June 2006 that she intended to attend the tribunal on the scheduled date but that she did not appear on the day, time and place specified. In those circumstances, pursuant to section 426A of the Migration Act 1958 (Cth), the tribunal decided to make a decision on the review without taking any further action to enable the applicant to appear before it.
The tribunal summarised the applicant’s claims as made in the statement accompany her protection visa application, in particular her claim that she was a key member of an independent workers’ union, that she was mistreated by her employer and the Chinese government due to her fight for workers’ basis human rights and that she had been arrested and detained and left her home to escape persecution. It set out her claims about her past activities in China.
However while the tribunal accepted that the applicant was a national of the Peoples Republic of China, it noted that she had not provided any further evidence to support her claims despite the fact that the delegate’s decision had put her on notice as to the deficiencies in her application and that there were a number of issues (to which the tribunal referred) requiring more detailed evidence that the tribunal would have liked to discuss with the applicant before it could be satisfied that the applicant had a genuine fear of persecution or that any such fear was well-founded.
In particular the Tribunal noted that the applicant claimed to be a union activist who had been detained and sentenced to a term of imprisonment which she did not serve. However it found that without the opportunity to question her about her clams and activities it could not make findings of fact as to the applicant’s past involvement in such activities and her claims of detention, conviction and sentence of imprisonment. Nor could it make findings as to whether she would attract the adverse attention of the Chinese authorities if she returned to China. Hence the tribunal could not be satisfied that the applicant would have a well-founded fear of persecution for a Convention reason should she return to China.
The applicant sought review of the tribunal decision by application filed in this court on 21 August 2006. She filed an amended application on 9 February 2007. She did not file written submissions. The applicant told the court that she wished to rely on the amended application.
As the applicant is self-represented I have considered the grounds in both the application and the amended application. However for the reasons given below, it has not been established that the tribunal fell into jurisdictional error.
The first ground in the amended application, refers to page 78 of the court book or bundle of relevant documents before the court. This is a copy of an envelope addressed to the applicant at the Ultimo address which is marked “No such person, please return to sender,” having been post-marked 16 May 2006 and then 7 June 2006. It is followed in the bundle of relevant documents by a copy of the letter dated 16 May 2006 to which I have referred which is stamped “Received” by post by the tribunal on 20 July 2006.
The applicant claimed in the amended application that the letter from the tribunal was returned to the tribunal and that she lost the chance of a hearing. It appears that this is a claim that she was deprived of the opportunity to have a hearing, presumably on the basis that she did not receive the first hearing invitation that was returned to sender. However there is nothing in the material before the court to suggest that there was any failure by the tribunal to comply with the procedural requirements of the Migration Act in relation to that letter. Moreover, on receiving subsequent notification of a new mailing address, the tribunal wrote to that address, and the applicant responded. The response to hearing invitation contained in the material before the court in the name of the applicant refers to her new Chatswood home address and to the Pymble mailing address. It indicates that she wished to attend the hearing. It is stamped “Received” by the tribunal on 7 June 2006.
In concluding submissions to the court the applicant suggested that in fact she did try to attend the tribunal hearing but arrived late. There is no evidence to support such a claim. The tribunal noted that the applicant did not appear before the tribunal on the day, time and place at which she was scheduled to appear. There is nothing in the material before the court to indicate that any claim that the applicant attempted to appear but was late was brought to the attention of the tribunal. I note that no such claim is made in the amended application or, indeed, in the application which makes no mention of the applicant’s failure to attend the hearing.
In any event, such a claim (which acknowledges receipt of the readdressed hearing invitation) does not establish that the tribunal failed to comply with any of the procedures under the Migration Act, in particular its obligation under section 425 of the Act, or that it was not open to it to proceed as it did under section 426A of the Act to make a decision without taking any further action to enable the applicant to appear before it.
The amended application also stated “I’m waiting the letter from legal adviser”. This is presumably a reference to the legal advice scheme conducted by the court. It does not, however, provide a ground for review of the tribunal decision. I note that contained on the court file is a notification from the adviser under the Legal Advice Scheme that the telephone number for the applicant was wrong and that there was no answers to letters sent to the applicant’s addresses. However this does not provide a basis for review of the tribunal decision.
As indicated, because the applicant is self-represented I have also considered the grounds contained in the original application, matters that were also addressed in the first respondent’s written submissions. In the application it was claimed that the tribunal failed to carry out its statutory duty, failed to review the application and that the decision was based on unwarranted assumptions and/or irrational and illogical reasoning. There is, however, nothing in the tribunal decision to demonstrate that its decision was based on unwarranted assumptions or was irrational or illogical.
The tribunal was not satisfied on the material before it that the applicant was a person to whom protection obligations were owed. As submitted for the first respondent, the tribunal was unable, because of the applicant’s non-appearance, to explore and test the veracity of her claims and in the absence of a positive state of satisfaction, necessarily refused the application (see SJSV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 at [15] – [16]). As was stated by the Full Court of the Federal Court in NAST vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5], the tribunal may, as it did in this case, list a number of significant matters of which it would like to satisfy itself at the hearing. Not being satisfied that an applicant has a well-founded fear of persecution it was bound to affirm the decision to refuse to grant a protection visa.
The application also contended that the tribunal failed to carry out its decision in a bona fide manner. Reference was made to the fact that the decision is seven pages long and that several of those pages are the cover sheet and pro forma paragraphs. However, in the tribunal reasons for decision the applicant’s claims as made in connection with her protection visa application are addressed. While the findings and reasons part of the tribunal decision is relatively brief, the tribunal nonetheless canvassed the fact that it was for an applicant to satisfy the tribunal that the statutory elements were made out, that the decision-maker was not required to make the applicant’s case for him or her and referred, as set out above, to the absence of further evidence to support the applicant’s claims and the issues on which the tribunal would have required more detail had she attended a tribunal hearing.
The applicant failed because in the absence of material before the tribunal, it was unable to be satisfied that she feared persecution for the reason she claimed. No lack of bona fides is established either due to the length of the tribunal decision or in any other way on the material before the court.
As no jurisdictional error has been established, the application must be dismissed. It is appropriate to amend the title of the first respondent as is sought. The first respondent seeks costs in the sum of $2,500 which is at the lower end of the amounts of costs usually ordered in proceedings of this nature and I consider that the amount is appropriate.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 11 September 2007