SZJNR v Minister for Immigration

[2007] FMCA 1134

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJNR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1134

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

Migration Act 1958 (Cth) ss.424A, 425, 425A, 426A

SZECI v Minister for Immigration &  Multicultural & Indigenous Affairs [2005] FCA 1201
Minister for Immigration &  Multicultural Affairs v Guo (1997) 191 CLR 559

Applicant: SZJNR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3006 of 2006

Judgment of: Barnes FM

Hearing date: 11 July 2007

Delivered at: Sydney

Delivered on: 11 July 2007

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms V McWilliam

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The name of the first respondent be changed to read ‘Minister for Immigration and Citizenship’.

2. The application is dismissed.

3. The Applicant shall pay the First Respondent’s costs fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3006 of 2006

SZJNR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 29 August 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant claims to be a citizen of the People’s Republic of China who arrived in Australia in February 2006.  He applied for a protection visa in March 2006 claiming to fear persecution, in essence by reason of his political opinion.  He claimed that he had led a number of protests on behalf of laid-off employees, had been dismissed from his employment, detained and fined by the police, mistreated while in detention and had received threatening phone calls after which he fled to Australia.  The application was refused and the applicant sought review by the Tribunal.

2. In his application for review he provided a residential address in Campsie.  He did not nominate an authorised recipient and ticked the box to indicate that he wanted correspondence sent to the residential address in Campsie.  In connection with his application for review he provided a statement to the Tribunal which repeated the claims made in the statement provided in connection with his protection visa application.  The Tribunal wrote to the applicant on 27 May 2006 acknowledging receipt of his application and inviting him to immediately send any documents, information, or other evidence he wanted the Tribunal to consider.  A subsequent letter dated 15 June 2006 invited the applicant to attend a hearing on 18 July 2006 at a place and time specified and advised him that if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice.

3. The applicant does not dispute that he received this letter and, indeed, a response to hearing invitation form was completed, giving the same address in Campsie in which it was indicated that the applicant wished to attend the hearing.  However, in its reasons for decision the Tribunal recorded that the applicant did not attend the scheduled hearing and did not contact the Tribunal to seek a postponement or to give reasons why he could not attend.

4. 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. In its reasons for decision the Tribunal found that the applicant had provided only a very general outline of his claims, with few details of the circumstances of particular aspects of his claim and with vague details of other aspects. It indicated that it would have wished to explore the details of the applicant’s claims and to test their veracity but the applicant did not appear before the Tribunal and did not provide any new material to the Tribunal.

5. The Tribunal concluded that, given the lack of details in the applicant’s claims and their general nature, and the fact that it had not been able to test the veracity of his claims, it was not satisfied that he was involved in organising or leading protests on behalf of workers on three occasions as claimed, or that he was detained and fined as claimed or threatened that he would suffer harm if he continued to protest to the authorities.  Nor was it satisfied that he was sought by the police thereafter prior to his departure from Australia or that he had been or was a person of interest to the authorities in China. 

6. The Tribunal concluded that it was not satisfied that the applicant had experienced serious harm in China amounting to persecution for a Convention reason or that there was a real chance that he would suffer persecution for a Convention reason if he returned to China.  Hence it was not satisfied that he had a well founded fear of persecution for a Convention reason if he returned to China and concluded that he was not a person to whom Australia had protection obligations.

7. The applicant sought review by application filed in this court on 17 October 2006. He relies on that application and an affidavit sworn on 11 October 2006 and filed on 17 October 2006. The affidavit reiterates the claims in his application. The grounds of review relied on by the applicant are that the making of the decision was an improper exercise of the power conferred by the Migration Act and that the procedures required by law to be observed in connection with the making of the decision were not observed. No written submissions were filed. I have however considered the grounds relied on the in the application and the matters raised by the applicant in oral submissions.

8. As elaborated on in particulars, the complaints relate to the procedures followed by the Tribunal and also its consideration of the applicant’s claims. First, insofar as the complaints relate to procedures followed by the Tribunal, there is no suggestion by the applicant nor is it apparent on the material before the court that the Tribunal failed to comply with its obligations under section 425 and 425A of the Act to invite the applicant to a hearing. There was no suggestion by the applicant that he did not receive the hearing invitation and, indeed, there is a response to hearing invitation in which he indicated he wished to attend the hearing. It is apparent from the material before the court that that invitation was addressed to the address provided by the applicant as his residential address and address for correspondence and there is nothing in the material before the court to indicate any failure to comply with the requirements of such a notice.

9. For the first time in these proceedings in oral submissions, the applicant, while acknowledging that he did not attend the hearing, suggested that he had asked a friend to write a letter to the Tribunal indicating that he had hurt himself helping a friend to move house.  He did not, however, have a copy of any such letter and initially told the court that he did not know if the friend had written such a letter, although in concluding submissions suggested that he felt sure that a letter had been written and sent but that he did not have a copy of any such letter.  There is no evidence from any such person as to the sending of a letter seeking an adjournment or postponement of the Tribunal hearing.  The Tribunal expressly addressed this issue in its reasons for decision, referring not only to the applicant’s response indicating that he wished to appear before the Tribunal but also indicating that the applicant did not contact the Tribunal to seek a postponement or to give reasons why he could not attend at the scheduled time and date.

10. In the absence of any evidence from the claimed ‘friend’ to support the late and unsubstantiated claims made by the applicant in oral submissions, I cannot be satisfied that the applicant did (through a friend) seek a postponement from the Tribunal. In those circumstances it has not been established that there was any failure by the Tribunal to comply with its obligations under section 425 and 425A or that it was not entitled to proceed to make a decision pursuant to section 426A of the Act without giving the applicant an opportunity to provide further information or evidence.

11. In the application the applicant claimed that the Tribunal had “apparently” failed to give him the chance to provide more information and evidence.  However in oral submissions, he appeared to resile from this contention, indicating that his concern was instead that the Tribunal failed to take his case seriously.  In any event, there is nothing in the material before the court to suggest that the Tribunal erred in any way in the opportunities it afforded to the applicant to provide information.  First the applicant had and took the opportunity to provide a statement in connection with his application for review.  I note in that respect that the form of application for review indicated that the applicant should provide any information, documents or submissions he wanted the Tribunal to consider or send them as soon as possible.  That opportunity was again afforded in the letter of 27 May 2006 and also in the hearing invitation of 15 June 2006.  However, as the applicant stated in his oral submissions and the Tribunal found in its reasons for decision, no new material was submitted to the Tribunal and no jurisdictional error is established in the manner that was contended in the application.

12. As to the complaint that the Tribunal failed to take the case seriously, this contention takes issue with the findings of the Tribunal and the merits of its decision.  There is nothing in the material before the court to suggest that the Tribunal failed to consider the information before it completely and fairly.  The Tribunal set out at some length the applicant’s claims as made in his statement.  Indeed, it compared the statement provided with the protection visa application and the review application, finding that the latter statement contained the same text as the earlier statement (apart from a different date) and noting the absence of further information.  It was on the basis of that material and the failure of the applicant to attend the Tribunal hearing that the Tribunal found that there was a lack of detail in the applicant’s claims and that it had not been able to test the veracity of those claims or explore them further.

13. The Tribunal could only proceed on the material and information before it.  No error has been established in these circumstances.  (See SZECI v MIMIA [2005] FCA 1201 at 24 per Allsop J). It is, moreover, for an applicant to make his case to the Tribunal (MIMA v Guo (1997) 191 CLR 559 at 596 per Kirby J).

14. I also note that there is nothing in the material before the court to suggest that any issue arises as to section 424A of the Act. The reason for the Tribunal’s decision was a lack of satisfaction based on the insufficient detail provided by the applicant, the generality of his claims and the fact the Tribunal was not able to explore the details further and to test the veracity of the claims at the Tribunal hearing. No failure to comply with any legal procedures as alleged has been established.

15. Nor, more generally, is there anything in the material before the court to establish that the decision was an improper exercise of the power conferred on the Tribunal under the Migration Act 1958.  As no jurisdictional error has been established, the application must be dismissed.

16. The first respondent seeks costs in the sum of $4,000.  The applicant had nothing to say in relation to this application.  As the applicant has been unsuccessful it is appropriate that he meet the costs of the first respondent.  The amount sought is appropriate in light of the nature of this and other similar matters.  It is also appropriate to amend the name of the first respondent to Minister for Immigration and Citizenship. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  18 July 2007