SZJXI v Minister for Immigration
[2007] FMCA 492
•26 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJXI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 492 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Federal Magistrates Court Rules 2001, rr.44.12; 44.12(1)(a) Migration Act 1958 (Cth), ss.65; 65(2); .91R; 424A; 424A (1); 425; 425A; 426A |
| Applicant: | SZJXI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3854 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 26 March 2007 |
| Date of last submission: | 26 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2007 |
REPRESENTATION
| Applicant appeared on her own behalf |
| Solicitors for the Respondent: | Ms K. Rose, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SGY3854 of 2006
| SZJXI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter was set down for a show cause hearing pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 at a directions hearing on 9 February 2007.
On 21 December 2006, the applicant filed her initiating application seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 28 November 2006 and an affidavit in support of that application annexing the decision of the Tribunal.
The applicant's application was formulaic and contained the type of grounds regularly seen in this Court. The grounds were as follows:
“1. The Tribunal failed to consider my application according to S91R of the Migration Act 1958 (Cth). The Tribunal failed to consider my claims.
2. The Tribunal’s satisfaction that I am not a refugee was not based on a rational and logical foundation for this belief.
3. The Tribunal failed to carry out its statutory duty. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision.
4. A copy of the decision letter is attached.”
The affidavit, sworn by the applicant on 4 December 2006, contained the following two paragraphs:
“1. The Tribunal failed to consider my application according to S91R of the Migration Act, the Tribunal failed to consider my claims.
2. The Tribunal’s satisfaction that I am not a refugee was not based on a rational and logical foundation for this belief.”
At the directions hearing on 9 February 2007 the applicant was granted leave to file and serve an amended application, together with any affidavit containing additional evidence by 19 March 2007. On
21 March 2007 the applicant filed an amended application identifying the following grounds:
“1. I was not given an opportunity to explain my case. The Tribunal had bias against me and did not consider my application in accordance with S91R of the Migration Act. The decision was made based on assumption of the officer, not evidence.
2. The Tribunal failed to carry out its statutory duty. The Tribunal did not notify me in writing of the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon it. My application was not considered in accordance with S424A of the Migration Act 1958.”
Again the grounds are formulaic and in terms regularly seen in this Court. No particulars were provided by the applicant at any time in support of any of the grounds in either the application or the amended application. Nor was any evidence filed by the applicant in support of the application, nor any written or oral submissions made relevant to those allegations.
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter. The applicant acknowledged that she had not attended the hearing before the Tribunal on 3 November 2006 but explained that she was scared and thought that the situation in Australia was the same as in China.
The applicant was unable to make any meaningful submission in support of either her application or her amended application. I note that from a practical point of view there is little difference between the grounds identified in each of the documents. The applicant confirmed to this Court that it was the amended application upon which she relied.
Ground 1 of the application alleges that the Tribunal was biased against the applicant. Plainly, such an assertion is of a serious nature and requires evidence. The applicant in that ground states that the Tribunal is biased and did not consider her application in accordance with s.91R of the Migration Act 1958 (Cth) (“the Act”). To the extent that the amended application alleges that the bias is reflected in a failure of the Tribunal to accept the claims made by the applicant, such an assertion is not capable of sustaining an allegation of bias.
The consideration of the Tribunal's decision discloses that there was insufficient detail in the claims made by the applicant to satisfy the Tribunal that she was a Falun Gong practitioner. In those circumstances, it was not necessary for the Tribunal to consider whether or not the persecution that the applicant claimed to have experienced amounted to persecution for the purposes of s.91R of the Act.
The Tribunal noted that the applicant had been informed in writing that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. Despite being put on notice as to the deficiencies in her application, the Tribunal noted that no further evidence had been received by the Tribunal. The Tribunal noted that a number of issues required more detailed evidence and gave evidence examples of the further evidence it would have sought at a hearing.
The Tribunal concluded that, without an opportunity to question the applicant about her activities, it could not make findings of fact as to the nature and degree of the applicant's past, or ongoing, involvement with Falun Gong and could not make findings as to whether the applicant would practice Falun Gong if she were to return to China, or, if she did, whether this would attract the adverse attention of the Chinese authorities.
The Tribunal concluded that, because the applicant had not provided sufficient evidence to support her assertions that she was a Falun Gong practitioner, it was not satisfied that she is a Falun Gong practitioner and, for those reasons, affirmed the decision under review.
Section 65 of the Act makes clear that it is for an applicant to satisfy a decision-maker, such as the Tribunal, that the applicant meets the criteria required for being a refugee. Section 65(2) of the Act mandates that, in the event that the decision-maker, in this case the Tribunal, is not so satisfied, that the decision-maker in those circumstances must refuse a protection visa.
To the extent that ground 1 complains that the Tribunal's decision was made based on assumption of the officer and not evidence, the complaint misconceives the role and duty of the Tribunal as a
decision-maker in relation to s.65 of the Act.
Ground 2 of the applicant's application complains that the Tribunal failed to carry out its duty and did not comply with the obligations of s.424A of the Act. To the extent that ground 2 asserts that the Tribunal failed to carry out its statutory duty, it is clear from the bundle of relevant documents marked exhibit 1R that the Tribunal invited the applicant to attend a hearing in accordance with the legislative regime as provided by s.425 and s.425A of the Act.
The Tribunal first wrote to the applicant inviting her to attend a hearing on 4 September 2006 at the address identified by her on her application for review as her mailing address. The letter identified the date, time and place of the hearing and informed the applicant that the Tribunal would only change the hearing date for good reason and, if she thought she may be unable to attend the hearing, she should contact the Tribunal immediately because, if she does not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on her case without further notice. The letter also invited the applicant to send to the Tribunal any new documents or written arguments it wished the Tribunal to consider.
On 8 September 2006, the applicant faxed through to the Tribunal a change of contact details and, on 11 September 2006, the Tribunal reissued its invitation to the applicant at the applicant's new postal address. A file note in exhibit 1R, dated 3 October 2006, being the date scheduled hearing date, discloses that on that day the applicant rang the Tribunal and sought a further hearing date. She confirmed her address and provided a facsimile that day in the following terms:
“This morning called RRT because my application had been lodged one month ago and I haven’t received any letter. I was told over the phone that the hearing was at 11.30am today, but when I called it was already 12.15, so I missed the hearing. I don’t know why I could not receive the letter for my hearing invitation. I did not mean to be absence for the hearing; otherwise, I would not have called RRT this morning. Would you please rearrange a hearing for me? I really need the hearing. Thank you! You can send me the result of this request by posting to 99/226 Elizabeth St, Surry Hills NSW 2010. Thank you!”
The Tribunal then rescheduled the applicant's hearing by letter, dated 4 October 2006, to 3 November 2006. Again, the letter informed the applicant that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone and invited her to send any new documents that she wished the Tribunal to consider. The letter also informed the applicant that the Tribunal would only change the hearing date for good reason and, if she thought she may be unable to attend, she should contact the Tribunal immediately because, if she did not attend and the Tribunal did not postpone the hearing, it could make a decision on her case without further notice.
The applicant returned to the Tribunal the response to hearing invitation indicating that she wished to attend the hearing. However, on 2 November 2006 the applicant faxed through to the Tribunal a letter in the following terms:
“This is to notify you that I cannot attend the interview as scheduled due to reasons beyond my control. Thank you for your attention.”
A file note, dated 2 November 2006, recorded receipt of the fax and noted that there was no telephone number or fax number identified by the applicant for contact. The applicant did not attend the hearing on 3 November 2006. In its decision, The Tribunal noted its correspondence with the applicant and exercised its discretion pursuant to s.426A of the Act to make a decision on the review without taking any further action to enable the applicant to appear before it.
The applicant has not identified any error on the part of the Tribunal in the discharge of that statutory duty and none is apparent on the face of the conduct of the Tribunal's review or its decision to proceed pursuant to s.426A of the Act.
To the extent that ground 2 complains that the Tribunal failed to comply with s.424A of the Act, it was the lack of detail in the applicant's claims that was the reason for the Tribunal affirming the decision under review. There was no information that was not given to the Tribunal by the applicant which the Tribunal considered was part of the reason for affirming the decision under review. Again the applicant did not identify any information capable of being information that enlivened the obligation in s.424A (1) of the Act and none is apparent from the Tribunal's decision.
The conclusions of the Tribunal would appear to be open to the Tribunal on the material before it and for which it provided reasons.
The applicant has not raised any arguable case that the decision of the Tribunal is affected by jurisdictional error. In the circumstances, the proceeding before this Court is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001, on the basis that this Court is not satisfied that the application has raised an arguable case for the relief claimed.
Further, the Court has considered the conduct by the Tribunal of its review and the making of its decision. No jurisdictional error is apparent.
In the circumstances, it is appropriate that the Order sought by the first respondent, that the application be dismissed pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 on the grounds that it does not raise an arguable case for the relief sought, should be made.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 13 April 2007
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