SZJZL v Minister for Immigration
[2007] FMCA 674
•19 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJZL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 674 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision –status – refugee status – refusal – visa – protection visa – satisfaction of Tribunal – merits review not available – failure to attend Tribunal hearing. |
| Migration Act 1958, ss.36, 65, 91X, 425, 426A |
| NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 SZEZI v Ministerfor Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 |
| Applicant: | SZJZL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 33 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 April 2007 |
| Date of Last Submission: | 19 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. J. Mitchell |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the sum of $4,753.50.
The court record be amended to record the name of the first respondent as “Minister for Immigration & Citizenship” in place of “Minister for Immigration & Multicultural Affairs”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 33 of 2007
| SZJZL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 1 January 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on
21 November 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 16 August 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a man from the PRC born on 20 July 1967 in Jiangsu, PRC. He is separated from his wife. He was employed as a Deputy Manager of Shang Hai Reda Steam Engineering Pty Ltd from 1998 to May 2006. The applicant has had 9 years of education. He speaks, reads and writes Mandarin. (Court Book “CB” page 85)
The applicant claims to fear persecution in China because of his practice of Falun Gong.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-5 of the Tribunal’s decision (CB 85-86). Relevantly, they are in summary:
a)the applicant was introduced to Falun Gong by business associates. In 2002 he joined them for Falun Gong exercises. He went to parks to practise it and he discussed it with his workmates and friends;
b)in August 2005 the applicant was questioned by security people and warned to stop practising Falun Gong. He ignored the warning and continued to practise it;
c)in January 2006 the applicant was formally warned by local security and his home was checked. He was told that he would lose his job and be arrested if he continued to practise Falun Gong. His family encouraged him to go abroad. His employer told him there would be trouble if he continued to employ him;
d)the applicant bribed local government officials and obtained a passport;
e)
after the applicant arrived in Australia on 3 June 2006 he was told by his family that police had come to check his home in China and were monitoring his phone calls. He claims that his family have asked him not to return home “as he will be gaoled”.
(CB 85).
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal’s decision was based on the written material before it. Because the applicant did not attend the hearing there was no oral evidence of the applicant for the Tribunal to consider. As the applicant did not attend a hearing, his claims could not be tested by the Tribunal and as such, there was insufficient evidence before the Tribunal to permit it to be satisfied that any of the applicant’s claims were true or that he faces a real chance of persecution should he return to China now or in the foreseeable future.
The Tribunal found:
There is nothing to support these claims other than the applicant’s unsubstantiated assertions. There are insufficient particulars as to the detail of the applicant’s claims to enable the Tribunal to establish the relevant facts. Because he did not attend a hearing, the Tribunal has been unable to explore the detail of his claims (as referred to above), or their truthfulness. Therefore the Tribunal is unable to be satisfied that any of his claims are true. The Tribunal is not satisfied that he was a Falun Gong member or was threatened by security forces, police and had to bribe an official to get a passport. (CB 86-87).
Proceedings in this Court
The grounds of the application are pleaded as follows:
1. I am a Chinese citizen and I have been practising Falun Gong since I was in China. I was formally warned by the Chinese local police to stop it and I'll face prison if I continue. I didn’t stop my practising therefore I arranged my trip to Australia.
2. I have been continuously practising Falun Gong after I arrived here. I believe that the Chinese security also know what I am doing now since they visited my home in China and asking[sic] about me.
3. I have a strong fear to go back to China since they will put me in prison.
The following paragraphs appear in the application under the heading “Orders sought by Applicant” but are more in the nature of claims for relief:
1. RRT didn't consider my fear of going back to China and the terrible result of my safety.
2. RRT didn't consider that I'm still practising and I will not stop practising.
3. RRT didn't provide me a hearing.
The Tribunal did not consider the applicant’s fear of going back to China
In relation to the asserted ground of review that the Tribunal did not consider the applicant's fear of going back to China the following passage from the Tribunal's decision is relevant:
The applicant's claims relate to his starting Falun Gong in 2002. He exercised with a group in a park. In August 2005 he was given a warning by local security to stop. He continued practising. In January 2006 he was given a formal warning by local security people and told if he didn't stop he would be in trouble, arrested and lose his job. The applicant's family encouraged him to go overseas, he bribed an official and obtained a passport. He then fled to Australia and fears he will be placed in gaol if he returns. (CB 86).
Clearly the Tribunal did consider the basis of the applicant's claim and the fears he said he had were he to return to China. Consequently this ground is not made out.
The Tribunal did not consider that the applicant was still practising Falun Gong
As to the asserted ground of review that the Tribunal did not consider that the applicant was still practising Falun Gong, this was not an element of the claim which he was making. The applicant's claim was based on what he did in China and the fears that he had resulting out of his conduct in China before he came to Australia. Consequently, this ground is not made out.
The Tribunal did not provide the applicant with a hearing
In relation to the applicant's asserted ground of review that the Tribunal did not provide him with a hearing, it is important to note the following chronology:
a)the Tribunal invited the applicant to a hearing by its letter dated 25 September 2006 (CB 56-57); and
b)the applicant responded by a Response to Hearing Invitation form completed by him and dated 12 October 2006 (CB 61) in which he indicated that he was going to attend the hearing.
Section 426A of the Act provides that the Tribunal may proceed to make a decision on the review, without taking any further action to allow or enable the applicant to appear before it, if it has invited the applicant pursuant to s.425 to appear before the Tribunal and the applicant does not appear before the Tribunal on the day on which, or the time and place at which, he is scheduled to appear.
In the circumstances, no error is demonstrated by the Tribunal proceeding to a hearing in the absence of the applicant, he having been given an invitation to attend and in fact having indicated he was going to attend.
Claim to merits review
To the extent that the first group of three grounds pleaded seek a review on the merits of the applicant's application for a protection visa, these are proceedings for judicial review of the Tribunal's decision and are concerned with the process by which the Tribunal arrived at its conclusion, not the merits of the applicant's claim. The applicant cannot re-agitate the merits of his claim in this Court in these proceedings. This Court cannot re-hear the applicant's claim. Consequently, to the extent that the applicant seeks a re-hearing on the merits, his application is unsuccessful.
The basis of the Tribunal's decision was its lack of satisfaction that the applicant had met the criteria for a protection visa. Section 65(1) of the Act provides:
After considering a valid application for a visa the Minister:
(a) if satisfied that [the various criteria had been met] is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
A criterion for the issue of a protection visa is found in s.36(2) of the Act which provides:
A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugee's Convention as amended by the Refugee Protocol.
The applicant was invited to the Tribunal hearing and indicated that he would attend but, in the result, did not. The applicant was invited to attend a hearing before the Tribunal because the Tribunal was unable to make a decision in his favour on the papers it then held; as is seen in the letter sent by the Tribunal to the applicant dated 25 September 2006 (CB 56). Had it been able to make a finding in his favour then s.425 of the Act would have meant that the Tribunal did not need to invite the applicant to a hearing.
In that context the following comments of the Full Court of the Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] are important:
In assessing the adequacy of [the Tribunal's] reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in his possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the applicant had a well‑founded fear of persecution, he could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
As to the material before the Tribunal not being able to give it the satisfaction required by the Act, what Allsop J said in SZEZI v Ministerfor Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29] is instructive:
The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited.
As the Tribunal said, it was unable to explore the details of the applicant's claims or their truthfulness. Had the applicant attended the hearing perhaps some of the Tribunal's concerns may have been allayed. However, in not attending the Tribunal hearing he denied himself the opportunity to put additional information to the Tribunal and he denied the Tribunal the opportunity to receive additional information which might have led it to the satisfaction required by the Act. In the circumstances, no jurisdictional error is made out on the basis of the first group of three grounds pleaded in the application.
Conclusion
For these reasons, no jurisdictional error on the part of the Tribunal has been made out and the application will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 15 May 2007
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