SZJQG v Minister for Immigration

[2007] FMCA 1276

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQG v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1276

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

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

Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous AffairsvVSAF of 2003 [2005] FCAFC 73
NAVX vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
SZCIA v Minister for Immigration & Multicultural Affairs [2006] FCA 238
SZEZI vMinister for Immigration & Multicultural Affairs [2005] FCA 1195

Applicant: SZJQG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3237 of 2006

Judgment of: Barnes FM

Hearing date: 26 July 2007

Delivered at: Sydney

Delivered on: 26 July 2007

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms S. Sirtes

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $4,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3237 of 2006

SZJQG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 3 October 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant, who claims to be a citizen of the People's Republic of China, arrived in Australia in July 2004.  He applied for a protection visa.  The application was refused and he sought review of that decision by the Tribunal.  The Tribunal, as originally constituted, affirmed the decision of the delegate of the respondent on 1 December 2004.  The applicant sought judicial review of that Tribunal decision.  The matter was remitted to the Tribunal for reconsideration.  

2. In his application for review by the Tribunal the applicant provided a home address in Campsie and a mailing address in Pitt Street, Sydney.  He did not nominate an authorised recipient.  Insofar as it is relevant (as the review by the Tribunal was the one review) I note that the Tribunal (as originally constituted) had sent an invitation to the applicant to attend a Tribunal hearing.  It appears from the decision of the Tribunal (as originally constituted) that the applicant did not attend the first scheduled Tribunal hearing.  After the matter was remitted to the Tribunal for reconsideration, the Tribunal wrote to the applicant by letter dated 1 August 2006 addressed to the address that had been provided by the applicant as his mailing address in the application for review inviting him to attend a hearing at a date, time and place specified.  The letter advised him that if he did not attend and the Tribunal did not postpone the hearing it could make a decision on his case without further notice.  It also notified him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. 

3. The material before the Court includes a response to hearing invitation received by the Tribunal on 14 August 2006 in which the applicant indicated that he wished to attend the Tribunal hearing. However the Tribunal recorded in its reasons for decision that the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth), the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

4. In the decision of the Tribunal that is in issue in these proceedings the Tribunal outlined the applicant’s claims in connection with his protection visa application and in the application for review.  In essence, the applicant claimed to fear persecution as a member of Falun Gong and a Falun Gong practitioner.  He claimed that he had participated in Falun Gong activities and promoted its ideas to colleagues, that he went to Beijing to present a petition about the legal status of Falun Gong and that he feared that if he returned to China the government would persecute him because of his participation in and promotion of Falun Gong.  He repeated these claims in his application for review, adding a claim that he had been investigated by local authorities because of his activities related to Falun Gong. 

5. The Tribunal found, however, that the applicant had provided no details of his involvement with Falun Gong on issues such as when he was introduced to the practice, when he began to practise himself and how and in what circumstances he undertook practise or promoted Falun Gong to colleagues.  Nor did he give details of the investigation he claimed had occurred or details of any current practise of Falun Gong. 

6. The Tribunal concluded on the basis of the evidence before it that it could not be satisfied that the applicant was a Falun Gong practitioner or that he had promoted Falun Gong amongst his work colleagues.  It could not accept on the basis of the unsubstantiated assertions of the applicant that he was investigated by local authorities just before he came to Australia.  The Tribunal concluded that as it could not accept the applicant’s claims on the facts, it could not be satisfied that he had a well-founded fear of persecution for a Convention reason in China. 

7. The applicant sought review of the Tribunal decision by application filed in this Court on 6 November 2006.  He relies on an amended application filed on 27 April 2007.  There are no filed written submissions. 

8. The first ground relied on in the amended application is that the Tribunal was biased against the applicant and did not consider the “full information” provided for the application for a protection visa. 

9. The claim of bias is unparticularised.  It is not established on the material before the Court relating to the Tribunal procedures and decision.  There was no Tribunal hearing.  The Tribunal’s decision turned entirely on the applicant’s non-attendance at the hearing and its consequential lack of satisfaction that protection obligations were owed to him.  There is no substance in this contention.  (See Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 69).

10. The applicant also contended that the “full information” provided for his application for a protection visa was not considered.  The protection visa application consists of the completed application and an attached statement addressing questions 40 to 44 and a copy of the applicant’s passport.  However, the claims as set out in the protection visa application are summarised and addressed by the Tribunal in its reasons for decision by reference to the application for review.

11. In his written claims to the Tribunal the applicant repeated his claim of Falun Gong involvement and also claimed that he had been investigated by the local government for his activities with Falun Gong.  These claims were set out in the Tribunal reasons for decision.  In its findings and reasons the Tribunal expressly addressed the claims as set out in the application for review.  It is clear that its findings in relation to the absence of detail in the applicant’s claims and the evidence before it in relation to his involvement in Falun Gong and practise of Falun Gong referred not only to the claims in the application for review but also to the claims in the application for a protection visa.  The main aspect of the applicant’s claims in the protection visa application was a claim that he practised and promoted Falun Gong.  Such claims were specifically referred to in the Tribunal findings and reasons. 

12. As indicated, the Tribunal was unable on the material before it to be satisfied as to the truth of the applicant’s claim to be involved with Falun Gong.  There is nothing in the material before the Court to establish that the Tribunal failed to consider the information provided by the applicant in or in connection with the application for a protection visa or review, let alone that it failed to do so in a manner constituting jurisdictional error. 

13. The second ground is that the Tribunal did not refer to “relevant independent information” for the consideration of the application.  However, the Tribunal was not satisfied of the basis for the applicant’s claims (insofar as it could not accept and was not satisfied on the material before it that the applicant was a Falun Gong practitioner or promoted Falun Gong or was investigated by the local authorities) based on a lack of detail in the evidence before it.  This was not a case in which the Tribunal decision turned in any way on independent country information. 

14. Moreover, and more generally, as was made clear in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, while the Tribunal has a power to obtain further information, it does not have a duty to investigate an applicant’s claims and in circumstances such as the present, does not fall into error in failing to do so or in failing to have regard to independent country information.

15. The third ground is that the Tribunal refused the application based on assumption and not evidence.  The fact that the Tribunal found that there was a lack of evidence in relation to details of the applicant’s claims does not establish that its decision was based on assumption rather than evidence.  No jurisdictional error is established on this basis.

16. The final ground in the amended application is that the Tribunal failed to notify the applicant of the reason for affirming the decision in accordance with s.424A of the Migration Act 1958 (Cth). There are no particulars in relation to this ground and the applicant did not elaborate on any of the grounds in the amended application when given the opportunity to do so today. There is nothing in the material before the Court to establish that in this instance the Tribunal failed to comply with s.424A. In particular, that section does not require the Tribunal to put its decision or reasoning to the applicant for comment and in the circumstances of this case no s.424A obligation was enlivened. (See SZEZI vMinister for Immigration & Multicultural Affairs [2005] FCA 1195 and SZCIA v Minister for Immigration & Multicultural Affairs [2006] FCA 238).

17. For the sake of completeness I note also that there is nothing in the material before the Court to suggest that the Tribunal failed to comply with any of the procedures under the Migration Act 1958 (Cth), in relation to handing down or in relation to the Tribunal’s obligation to invite the applicant to a hearing. The hearing invitation letter was addressed to the address that the applicant had provided. Indeed, the Tribunal received a response to the hearing invitation.

18. As submitted for the first respondent, in this case the applicant failed because on the evidence before it the Tribunal could not be satisfied as to his claims and whether he had a well-founded fear of persecution. The applicant stated from the bar table that he had been in Perth and that it was not easy for him to travel to Sydney and that he could not attend the hearing because he was not usually here. Insofar as the applicant may be suggesting that there was an explanation for his failure to attend the Tribunal hearing, such an explanation does not establish jurisdictional error on the part of the Tribunal. The Tribunal met its obligations to extend the invitation to the applicant in the manner provided for in the Migration Act. There is nothing in the material before the Court to suggest (and nor is it claimed) that the applicant contacted the Tribunal or in any way indicated to it an inability to attend the scheduled hearing. Rather, he indicated that he would attend the scheduled hearing on the date notified.

19. The Migration Act requires a positive state of satisfaction on the part of the decision-maker as to whether protection obligations are owed to an applicant for a protection visa. In the absence of a positive finding of such satisfaction the affirmation of the delegate’s decision in that respect was the inevitable result of the applicant’s failure to attend the tribunal hearing. (See Minister for Immigration & Multicultural & Indigenous AffairsvVSAF of 2003 [2005] FCAFC 73, SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 and NAVX vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]).

20. As no jurisdictional error has been established the application must be dismissed.

21. The applicant has been unsuccessful and, as the first respondent seeks, he should meet the first respondent’s costs of these proceedings.  The amount sought is appropriate in light of the nature of this and other similar matters. 

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

Associate: 

Date:  9 August 2007