SZJHB v Minister for Immigration
[2007] FMCA 1850
•22 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJHB v MINISTER FOR IMMIGRATION | [2007] FMCA 1850 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in determining not to postpone hearing. |
| Migration Act 1958 (Cth) ss. 414, 420, 424A, 425, 425A |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA FC 225 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 231 ALR 592 SZDOG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 213 ALR 439 SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63 |
| Applicant: | SZJHB |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | SYG 2437 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 22 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr J Mitchell |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2437 of 2006
| SZJHB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal handed down on 8 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 People's Republic of China, arrived in Australia in March 2006. She applied for a protection visa in April 2006. In a statement accompanying her protection visa application she claimed to fear persecution, essentially on the basis of her involvement as a Falun Gong practitioner in China. She claimed that while in China she had participated in Falun Gong activities and distributed Falun Gong material and made claims about what had been experienced by others who practised Falun Gong. She claimed that a friend told her she had been noticed by police and should be careful, and that being investigated and fearful of arrest she decided to leave China. The applicant claimed that subsequently she had been told that the police had gone to her home and asked questions about her.
The application was refused and the applicant sought review by the tribunal. In her review application she provided a statement reiterating her claims. She also provided a residential address in Australia and nominated a registered migration agent as her authorised recipient. She requested that all correspondence in connection with the review be sent to her adviser.
The tribunal wrote to the applicant by letter dated 28 June 2006. That letter was addressed to her nominated migration agent at a facsimile number which was the number provided in the review application. The letter advised that the tribunal had considered the material before it in relation to the application but was unable to make a decision in the applicant's favour on that information alone. She was invited to a hearing on 25 July 2006 at a time and place specified.
In its reasons for decision the tribunal recorded that that letter was despatched by facsimile to the applicant's migration agent. On the same day the migration agent contacted an officer of the tribunal by telephone to request that the hearing be postponed for two months, stating that the applicant did not live near Sydney. The tribunal recorded that the adviser was advised to put such a request in writing for the tribunal to consider.
The tribunal recorded that the adviser did not make any formal request until 12 July 2005. This appears to be intended to be a reference to 12 July 2006 in light of the timing of all other events and the copy letter from the migration agent that appears in the material before the Court dated 12 July 2006. The Tribunal recorded that in this letter the agent said the applicant was living in the town of Wentworth but was not more specific and wished the hearing to be postponed until September when she would be back in Sydney.
The tribunal also noted that in the application for review, the applicant had indicated that she was living in Sydney and that she had not notified the tribunal of any change of address beyond the agent's advice that she was temporarily in Wentworth.
The tribunal found that having regard to the provisions of s.420 and 414A of the Migration Act 1958 (Cth) it was not prepared to delay the hearing by between one and two months. It was satisfied that there was "ample time" for the applicant to arrange to attend the hearing, even if she was temporarily away from her home address. It declined to postpone the hearing.
The applicant was so advised by letter sent by facsimile to her agent on 13 July 2006. I note that the tribunal reiterated the advice it had given in the letter of 28 June 2006, that if the applicant did not attend the hearing and the tribunal did not postpone it, it could make a decision on her case without further notice.
The tribunal recorded that the applicant did not respond further to the hearing invitation and did not appear at the date, time and place of the scheduled hearing or contact the tribunal to explain her failure. In those circumstances the tribunal determined, pursuant to s.426A of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it.
In its findings and reasons the tribunal accepted that the applicant was a citizen of the People's Republic of China. It observed that all the applicant's claims were based on the assertion that she had been a practitioner of Falun Gong since 2004, but that she had provided very little in the way of information to substantiate her claim. It noted that she had claimed in the statement submitted to the tribunal that practising Falun Gong had a beneficial impact on her health and that of a friend and that she had learned from a Falun Gong book which had been written by the founder of Falun Gong. However, the tribunal found that the applicant had not provided anything further to indicate that she had any knowledge of the history and philosophy, principles or basic exercises of Falun Gong.
It also found that it was not prepared to accept the applicant's unsubstantiated assertions in the unsigned and undated statements submitted to it and that for that reason it had invited her to a hearing where her knowledge of Falun Gong and details of her claims about her alleged experiences could be tested. It observed that the letter of invitation put the applicant on notice that on the basis of the evidence before it the tribunal was unable to make a favourable decision.
The tribunal concluded that it was not satisfied on the evidence before it that the applicant was a Falun Gong practitioner or had been one in China. It continued:
As her only claims are based upon the proposition that she is a Falun Gong practitioner, the Tribunal cannot be satisfied that the applicant is regarded adversely by the PRC authorities. It is therefore not satisfied that she has a well-founded fear of persecution in China.
The tribunal affirmed the decision not to grant the applicant a protection visa. The applicant sought review by application filed in this Court on 31 August 2006. In an accompanying affidavit which annexed the tribunal decision, she reiterated claims to be a Falun Gong practitioner. In relation to those claims I note that merits review is not available in this Court.
The applicant filed an amended application on 5 February 2007. She did not file written submissions and despite being given the opportunity to make oral submissions, did not elaborate on the grounds in her amended application.
The first ground in the amended application is that the tribunal did not properly consider her case in assessing the chance of persecution on return to China because she is a member of Falun Gong. It is also claimed that the tribunal failed to provide any logic reason to support its decision and failed to refer to any proper independent information and made a decision without sufficient supporting documents and evidence.
However, as submitted for the first respondent, it is apparent that the tribunal did consider the evidence before it in relation to the applicant's claims based on her membership of Falun Gong, but had regard to the limited information the applicant had provided to substantiate her claim, in particular, in relation to her knowledge of Falun Gong history, philosophy, principles or exercises. The tribunal addressed the claims made in the statement provided in connection with the application for review but was not prepared to accept unsubstantiated assertions in such document; observing that for this reason it had invited the applicant to a hearing where her knowledge of Falun Gong and the details of her claims could be tested.
It was for the applicant to satisfy the tribunal of her claims and in circumstances such as the present, s65 of the Migration Act required that if the decision maker was not affirmatively satisfied that the criteria for the visa had been satisfied, then the application had to be refused. See SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [14]-[17].
In these circumstances, ground one is not made out. The tribunal considered the applicant's claims. It provided reasons to support its decision. There is no lack of logic, let alone a lack of logic constituting jurisdictional error. Further in circumstances where the tribunal could not be satisfied on the evidence before it of the applicant's underlying claim to be a Falun Gong practitioner, there was no need for it to refer to independent information or other material in relation to the situation of Falun Gong practitioners in China as appears to be argued under this ground. For these reasons, ground four, which is that the tribunal failed to consider the applicant’s claims, is also not made out.
Ground two is that the tribunal did not observe the Migration Act1958 “properly” in making its decision and that the tribunal did not provide any arguments to rebut the applicants claims. In relation to the second half of that ground, see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA FC 225 at [15] and [16]. As Gummow and Hayne JJ observed in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
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.
I asked the applicant to elaborate on her claim that the tribunal did not observe the Migration Act 1958 properly. She did not do so. There is nothing in the material before the Court to establish that there has been a failure to comply with any of the procedures under the Migration Act1958.
A number of issues were addressed by counsel for the first respondent in this respect. The first issue was the circumstances in which the applicant, through her agent, requested a postponement of the tribunal hearing and the tribunal decision in that respect. It was submitted for the respondent, and I accept, that there is no evidence that the tribunal failed to consider relevant material before it in relation to the application for an adjournment or that its discretion otherwise miscarried.
The tribunal referred to the hearing invitation dated 28 June 2006 and an oral request by the adviser on that day for a postponement of a hearing on the basis that the applicant did not live near Sydney. It observed that the request was not put in writing until 12 July “2005”. This date is clearly wrong, however while in some circumstances a factual error in a tribunal decision can constitute jurisdictional error if it indicates a failure to have regard to the circumstances of the applicant's case (see e.g. SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63), in all the circumstances of this case, having regard to the dates on which the applicant arrived in Australia, made her application and review application and the dates of the hearing invitation and subsequent events, I consider that the reference to 2005 rather than 2006 is no more than a typographical error, that the tribunal understood that the applicant’s adviser’s written request followed the hearing invitation of 28 June 2006 and that in considering whether there was in fact time for the applicant to arrange to attend a hearing notwithstanding the applicant’s temporary residence in Wentworth, the tribunal had regard to the time available to her from its rejection of the request for a postponement on 13 July 2006.
This is not a case in which it has been established that the tribunal either failed to consider the request for an adjournment or failed to consider the most recent and accurate information that it had on a factor vital to the exercise of its discretion. See Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24 at [44] – [45] per Mason J.
I also note that, as stated by Smith FM in SZDOG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 213 ALR 439 at [33] albeit in relation to the more fundamental issue of whether or not a discretion to deprive an applicant of the normal right to an oral hearing should be exercised, it is necessary to balance considerations of procedural fairness for the individual against considerations of efficiency of general tribunal procedures. In this instance the tribunal considered the question of whether a postponement of the hearing should be granted in the way mandated by the legislation and did not fall into error constituting jurisdictional error.
There is no dispute about the tribunal invitation having been sent or received raised by the applicant in these proceedings (the adviser responded to the invitation so that it clearly was received). Hence while the tribunal had a discretion to postpone the hearing, when it chose not to do so and the applicant failed to appear it was empowered under s. 426A of the Act to make a decision on the review without taking any further action to allow or enable her to appear before it. The exercise of a discretion in relation to postponement of the hearing does not establish a failure to comply with s.425 or 425A.
The issue of whether s.424A(1) of the Act applied was also addressed by counsel for the first respondent. As submitted, the tribunal decision was based on the perceived inadequacy of the material submitted to it by the applicant. The tribunal was not satisfied, on the material before it, that the applicant was a Falun Gong practitioner and hence could not be satisfied that she was regarded adversely by the PRC authorities.
The tribunal's appraisal of the evidence before it and indeed the perceived inadequacy of that material is not information subject to s.424A(1) obligation. See SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29], per Allsop J. The tribunal's letter of invitation to the hearing had placed the applicant on notice that on the basis of the evidence before it the tribunal was unable to make a favourable decision. This is not a case in which any issue arises on the basis of the principles considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 231 ALR 592. Ground two is not made out.
Similarly, insofar as it is claimed in ground three that the tribunal did not provide the applicant with an adequate opportunity to substantiate her claims, it has not been established that the tribunal failed to comply with its obligations in that respect, in particular under s.425 of the Act. I also note, that in the initial letter acknowledging receipt of the tribunal review application, the applicant was advised that she would be given the opportunity to attend a hearing and the purpose of that hearing and also asked to immediately send any documents, information or other evidence she wanted the tribunal to consider. This invitation was reiterated in the invitation to a hearing. Ground three is not made out.
As no jurisdictional error has been established, the application must be dismissed.
The applicant has been unsuccessful and it is appropriate that the unsuccessful applicant meet the costs of the first respondent. The amount of $3,700 which is sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM
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