SZKEG v Minister for Immigration & Anor
[2007] FMCA 983
•29 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKEG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 983 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal – no breach of s.425 if s.425A notice served in accordance with ss.441A and 441C and reg.4.35D. |
| Migration Act 1958, ss.65, 91X, 425, 425A, 426A, 441A, 441C Migration Regulations 1994, reg.4.35D |
| VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 |
| Applicant: | SZKEG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 419 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 June 2007 |
| Date of Last Submission: | 15 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 419 of 2007
| SZKEG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 9 February 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 5 December 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 17 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 47-year old citizen of China. He was born in Shanghai. He underwent ten years of education, from 1966 – 1976. He worked from 1977 – 1999 for a sugar company, and then from 2000 – June 2006 worked as a Business Manager of a real estate business. (Court Book (“CB”) page 63).
The applicant claims to fear persecution in China because he is a Falun Gong practitioner.
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 which is annexed to the applicant’s affidavit affirmed 3 February 2007. Relevantly, they are:
a)the applicant was one of five Falun Gong practitioners from the same practice station;
b)he was first introduced to Falun Gong in 2001;
c)the applicant was involved in “all kinds of Falun Gong activities” including assisting with the printing and publishing of Falun Gong material, organising the practice of Falun Gong and providing finance;
d)when the applicant became aware that the authorities were investigating his involvement in Falun Gong activities he decided to flee; and
e)he has contacted the local Falun Gong group in Australia.
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 following findings and reasons:
a)the applicant was given the opportunity to attend a hearing before the Tribunal to give oral evidence but he did not attend;
b)the applicant did not provide any information or details of:
i)the practice, philosophy or history of the Falun Gong movement;
ii)his own personal knowledge of Falun Gong ideology;
iii)his own actual practices of Falun Gong in either China or Australia, such as where he practised in China and where he currently practises in Australia, with whom he practises (privately or as part of a group) or how frequently he practises;
iv)his motivation for becoming involved with Falun Gong;
v)the nature of the persecution he claims to have suffered;
vi)the Falun Gong activities he was involved with, such as where they occurred, with whom he carried out these activities and when they occurred; and
vii)the nature of the investigations into the applicant’s involvement in the Falun Gong movement.
The Tribunal found that:
· Without the opportunity to question the applicant to ascertain the depth of his personal knowledge of and commitment to the practice of Falun Gong; and
· In light of his failure to provide any documentary evidence to support his claims; and
· Without the Tribunal being able to question the applicant to ascertain answers to the questions raised through his written claims …
the Tribunal cannot be satisfied, on the evidence before it, that the applicant is a genuine adherent of Falun Gong or that he would face harm in the reasonably foreseeable future upon return to the PRC. (Tribunal’s decision pp 5 – 6).
Proceedings in this Court
Grounds of review
The sole ground set out in the application is that the Tribunal breached s.425 of the Act by failing to 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. The applicant denied having received the Tribunal’s invitation to attend its hearing.
At the hearing in this Court the applicant also raised issues touching on the merits of his application for a protection visa.
Procedural issues
At the hearing in this Court the applicant also disputed having been served with a copy of the Court Book or with the first respondent’s submissions and the affidavit of the Tribunal’s District Registrar, Mr Willoughby-Thomas, sworn 7 June 2007. In relation to the Court Book, from the bar table the applicant said that the document was too wide for his letterbox and in relation to the first respondent’s submissions and Mr Willoughby-Thomas’s affidavit he said that he had moved from the address for service noted in the Court’s records. He conceded that he had advised neither the Court nor the first respondent’s solicitors of his new address.
The first respondent tendered a copy of a letter from his solicitors to the applicant dated 3 April 2007 which is a copy of the letter purportedly sending the Court Book to the applicant. However, no affidavit of service was read in relation to the dispatch of that letter.
By contrast, in her affidavit sworn 13 June 2007, Alison Faron, an administrative assistant in the office of the first respondent’s solicitors deposes to the service of the first respondent’s outline of submissions and the affidavit of Mr. Willoughby-Thomas by courier delivering to the applicant’s address for service. In light of Ms. Faron’s affidavit I am satisfied that the applicant was served with those two documents.
Breach of s.425
Section 425(1) provides:
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 425A provides:
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
Annexures “B”, “C” and “D” to the affidavit of Mr Willoughby-Thomas show that the s.425A letter, addressed to the applicant at the address given by him in his application to the Tribunal, was dated
3 October 2006 and was despatched by post by the Tribunal on that day. I find that the letter was sent to the applicant on 3 October 2006.
That letter invited the applicant to a hearing on 20 November 2006.
In relation to despatch of a s.425A notice, s.441A(4) provides:
Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.
By despatching its s.425A letter on 3 October 2006 to the address given by the applicant in his application to the Tribunal, the Tribunal satisfied the requirements of this section.
Section 441C(4) provides:
Dispatch by prepaid post or by other prepaid means
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document; or
(b) in any other case--21 days after the date of the document.
Because the Tribunal had complied with s.441A(4) the notice is taken to have been received by the applicant seven working days after it was sent, namely 12 October 2006.
Regulation 4.35D provides:
For subsection 425A (3) of the Act, the prescribed period:
(a) if the applicant is a detainee -- starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 7 days after the day on which the notice is received; or
(b) in any other case -- starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.
The s.425A letter invited the applicant to a hearing on 20 November 2006. The applicant was not in detention and so notice had to be received no later than 13 November 2006. As already noted at [20] above, the letter is deemed to have been received on 12 October 2006. Consequently, the requirements of this regulation have been met.
Section 426A(1) provides:
If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
In the circumstances, the Tribunal discharged its obligation to invite the applicant to the hearing and its decision to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it was not affected with error: VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407.
Satisfaction
As to the decision the Tribunal made, it had already indicated to the applicant in its s.425A letter that it was not in a position to make a decision in his favour based on the material it then had. As the applicant failed to appear at the hearing, it is hardly surprising that the Tribunal made the decision that it did.
In its decision the Tribunal sets out a number of matters, rehearsed above at [6] on which it needed further information from the applicant. Without such information it found itself unable to be satisfied, as contemplated by s.65 of the Act, that the applicant was a person to whom Australia had protection obligations. By failing to attend the Tribunal hearing the applicant denied himself the opportunity of providing to the Tribunal, and he denied the Tribunal the opportunity to receive, evidence and arguments which might have led the Tribunal to the satisfaction required by the statute. As Allsop J said in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29]:
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.
Because the Tribunal was unable to reach the level of satisfaction required by the Act, no jurisdictional error has been shown in the decision on the review which the Tribunal made: SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215; NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208.
Conclusion
No jurisdictional error on the part of the Tribunal has been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 29 June 2007
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