SZJYC v Minister for Immigration
[2007] FMCA 1192
•24 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJYC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1192 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – applicant failed to appear before Refugee Review Tribunal – whether Refugee Review Tribunal complied with ss.425 and 425A of the Act – whether the Refugee Review Tribunal complied with s.424A of the Act. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 91S; 424A; 424A(1); 425; 425A; 426A; 474; pt.8 div.2 |
| SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | SZJYC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3909 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 23 July 2007 |
| Date of last submission: | 23 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr G. Kennett |
| Solicitors for the Respondent: | Ms Z. McDonald, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3909 of 2006
| SZJYC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 November 2006 and handed down on
23 November 2006.
The applicant was born on 31 July 1965 and claims to be from the People’s Republic of China (“the PRC”) and a Falun Gong practitioner (“the Applicant”).
On 18 November 2005, the Applicant arrived in Australia, having legally departed from the PRC on a passport issued in his own name and a visitor’s visa issued on 20 September 2005.
On 14 December 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution as a Falun Gong practitioner in the PRC. The Applicant claimed that, as a result of being a practitioner and participating in protests against the government he was arrested and detained by the Kaifeng Public Security Bureau sometime after the outlawing of Falun Gong in October 1999 and abused whilst in detention. The applicant claimed that he was released in January 2001.
On 31 January 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 28 February 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 23 November 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 28 December 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 15 September 2006, the Tribunal invited the Applicant to come to a hearing on 30 October 2006. The Applicant did not attend the hearing or provide further documents.
The Tribunal noted that it had before it the Department’s file and the Delegate’s decision record as well as the application for review. The Tribunal noted that the Applicant did not provide any further material in support of his review application.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“The Tribunal listed a number of points at which the Applicant’s statement was lacking in detail. Given this lack of detail, the Tribunal was not satisfied that the Applicant was or had been a practitioner of Falun Gong, or that he had been arrested as he claimed. It was not satisfied that he faced a real chance of persecution for a Convention reason if he returned to China.”
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that he relied on the application filed by him on 28 December 2006. The grounds of the application are expressed to be as follows:
“The decision of the Refugee Review Tribunal (RRT) was affected by jurisdictional errors in that:
Section 425 of the Migration Act 1958:
(1)the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 424A of the Migration Act 1958:
(a)give the applicant in writing particulars of information that the Tribunal considered was the reason, or a part of the reason, for affirming the decision that was under review
(b)ensure that the applicant understood why the information was relevant to the review
(c)invite the applicant to comment on the information”
Section 425 of the Act
Section 425 of the Act requires the Tribunal to invite the applicant to come to a hearing and such invitation must be in accordance with the statutory requirements referred to in s.425A of the Act.
The Applicant stated that he had not received the invitation to come a hearing before the Tribunal because the Tribunal had not sent the invitation to the address where he lived and that otherwise he relied on this migration agent.
The First Respondent read the affidavit of Jonathan Willoughby-Thomas sworn 18 June 2007. Mr Willoughby-Thomas is a District Registrar of the Tribunal and set out in his affidavit the Tribunal’s usual practice in sending s.425 letters as at September 2006. In particular, Mr Willoughby-Thomas deposed that such letters were sent by ordinary prepaid post “on the date appearing on the letter as the date on which the letter was written or the next day if the letter had missed the external mail dispatch for that day”.
The Applicant confirmed that it was his signature on the application for review received by the Tribunal on 28 February 2006 although the application form had been completed by his migration agent. The Applicant stated in the application form that he did not wish to appoint an authorised recipient and that his address for correspondence was a post office box. The application form stated that if the Applicant identified an address for correspondence, then all correspondence would be sent only to that address. The Applicant did not nominate a migration agent or an authorised recipient.
On 15 September 2006, the Tribunal wrote to the Applicant at the post office box identified in his application form informing 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. The letter invited the Applicant to come to a hearing on 30 October 2006 and informed him that if he was unable to attend the hearing he should contact the Tribunal immediately because if he did not attend and the Tribunal did not postpone the hearing it could make a decision on his case without further notice (“the Invitation Letter”).
The Invitation Letter enclosed a “Response to Hearing Invitation” form that it requested the Applicant to complete and return by
3 October 2006. The Invitation Letter also invited the Applicant to send any new documents or written documents it wished the Tribunal to consider by 3 October 2006.
In its decision, the Tribunal noted the contents of the Invitation Letter and that the Applicant had not responded to the Invitation Letter nor returned the hearing invitation form. The Tribunal noted that the Invitation Letter was not returned to the Tribunal unclaimed. The Tribunal noted that the Applicant had not contacted the Tribunal to seek a postponement or give any reasons for why he could not attend at the scheduled date and time. In those circumstances, the Tribunal decided to exercise its discretion under 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.
Despite having been directed on two occasions by this Court, namely 15 February 2007 and 30 April 2007, the Applicant has not filed any evidence in support of his application, in particular evidence of any reason why he may not have received the letter. However, Mr Willoughby-Thomas, deposed as to the usual practice of the Tribunal as at September 2006 in sending letters of invitation by way of prepaid post on the same day of writing or on the next day. I find that the letter of invitation dated 15 September 2006 was sent in accordance with the usual practice of the Tribunal as deposed to by Mr Willoughby-Thomas.
In the circumstances, I am satisfied that the Invitation Letter was sent within 3 days of the date of the letter and therefore complies with s.441B(3) of the Act.
The letter of invitation was otherwise sent to the Applicant at his address for correspondence and otherwise complied with s.425 and s.425A of the Act. In particular, as referred to in the written submissions prepared by counsel for the First Respondent, the Tribunal’s invitation included the following:
· “gave notice of the date, time and place of the hearing (cf. s.425A(1);
· was addressed to the last address for service provided by the Applicant (cf. s.441A(4)(c)(i));
· was dispatched by prepaid post on the day it was written, namely 15 September 2006 (cf. s. 441A(4)(a) and (b));
· was therefore “given” to the Applicant “by one of the methods specified in section 441A” (s.425A(2));
· is conclusively deemed to have been received 7 working days after its date (i.e. 26 September 2006) (s.441C(4));
· therefore provided a period of notice well in excess of the 14 days prescribed by reg.4.35D(b) of the Migration Regulations (s.425A(3)); and
· warned the Applicant that failure to attend the hearing could lead to a decision being made without further notice to him (s.425A(4)).”
Accordingly, the Applicant’s allegation that the Tribunal failed to comply with s.425 of the Act is not made out.
Section 424A of the Act
In relation to the Applicant’s allegation of a breach of s.424A of the Act, the allegation was unsupported by particulars and is misconceived. There was no “information” before the Tribunal that enlivened the obligations of s.424A(1) of the Act. The Tribunal had regard to the Applicant’s statement provided in support of his protection visa application but found this to be “only a brief and vague outline of his claims”. The Tribunal noted that the Applicant provided no details on how he became a member of Falun Gong in 1994 and no details on the extent and nature of his Falun Gong practice.
The Tribunal identified matters it would have wished to explore with the Applicant at a hearing.
Having regard to the lack of details in the Applicant’s claims, the Tribunal was not satisfied that the Applicant has a well-founded fear of persecution for a Convention related reason if he were to return to the PRC now or in the reasonably foreseeable future. That conclusion was open to the Tribunal on the material before it and for which it gave reasons.
The thought processes of the Tribunal in evaluating the material before it is not information that enlivens any obligation on the Tribunal pursuant to s.424A(1) of the Act. The reason why the Tribunal affirmed the decision under review was because of the inadequacy of the detail in the Applicant’s claims that led to the Tribunal not being satisfied that the Applicant met the criteria required for a protection visa (SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26).
It is for the Applicant to satisfy the Tribunal that he meets the criteria set out in s.36(2) for a protection visa. If the Tribunal is not so satisfied, then s.65(1)(b) of the Act mandates that the Tribunal, must refuse the visa.
Accordingly. The Applicant’s allegation of a breach by the Tribunal of s.424A of the Act by the Tribunal is not made out.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 28 December 2006, is dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 23 July 2007
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