SZKJO v Minister for Immigration
[2007] FMCA 1534
•13 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1534 |
| MIGRATION – Lack of information – invited to attend hearing – change of address not notified – failure to attend – dismissal inevitable – no “information” within s.424A – s.425 complied with – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2), 424A, 425, 441A, 474 |
| Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 |
| Applicant: | SZKJO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 922 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 13 August 2007 |
| Date of last submission: | 13 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms G. Broderick of Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 922 of 2007
| SZKJO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 19 March 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 18 January 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 26 February 1957 and claims to be from China and of Chinese ethnicity (“the applicant”). The applicant’s husband and two children remain in China.
The applicant arrived in Australia on 7 September 2006 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 15 September 2006. In this application she claimed to fear persecution from the Chinese authorities because of her Falun Gong practices. The applicant claimed that she began practicing Falun Gong to improve her health, but “gave up” the practice at her husband’s urging after it was banned by the Chinese government. The applicant claimed that she came to Sydney in December 2005 with a friend and met some Falun Gong members; she saw “how free they were to practice Falun Gong overseas” and “suddenly had a desire to resume my practice.” After returning to China, the applicant claimed that she and her friend decided to travel back to Australia where they could practice Falun Gong freely (Court Book “CB” 28-9).
This application was refused by a delegate of the first respondent on 29 September 2006 (CB 36-42).
On 2 November 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 43). The applicant was invited to a hearing before the Tribunal on 9 January 2007 to give evidence and present oral arguments, but failed to appear at the scheduled time (CB 51, 53).
By decision signed on 18 January 2007 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 64-65) (highlighting added):
The Tribunal accepts that the applicant is a PRC national as she has claimed.
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
The Tribunal accepts that there is sometimes persecution of Falun Gong practitioners by PRC authorities, including persecution in relation to private practice where that is brought to the attention of police or party officials. Clearly however the Tribunal must determine whether the applicant before it has a genuine fear founded upon a real chance of persecution for a Convention reason if she returns to her country.
The applicant claims that she commenced the practice of Falun Gong seven years ago. She also says that four months later the practice was banned by the Chinese government. She became afraid when she heard what had happened to people who continued to practise but in any event her husband would not allow her to continue practising. She says that she gave up learning Falun Gong at that stage. The applicant says that she visited Australia and saw the freedom which practitioners have here to practise Falun Gong. She also witnessed the appeals made by Falun Gong members in front of the Chinese Embassy in Canberra.
The applicant states that after she returned to China she was persuaded by her friend to return once again to Australia where one can practise Falun Gong freely. At first she did not tell her husband the purpose of her return travel to Australia but now he knows and is very angry. Since arriving in Australia on 7 September 2006 she says that they have met many Falun Gong practitioners. They have introduced them to practice groups so that they could realise their dream of practising Falun Gong.
The applicant has provided some details of her introduction to Falun Gong in China. She has described how she was not permitted by her husband to continue the practice after Falun Gong was banned in China. Furthermore, she has said that the purpose of her return to Australia was to pursue her desire to practice Falun Gong again. She states that she met many Falun Gong members here and has been introduced by them to the practice group. There is no further evidence before the Tribunal that the applicant has in fact joined a Falun Gong practice group in Sydney or that she has otherwise become involved in any Falun Gong related activities since her return to Australia in September 2006.
On the basis of the limited evidence before it the Tribunal cannot be satisfied that the applicant was a Falun Gong practitioner in China as she has claimed. In the absence of supporting evidence the Tribunal cannot be satisfied that the applicant currently practises Falun Gong in Australia. On the limited evidence before it, the Tribunal cannot be satisfied that the applicant is a genuine Falun Gong practitioner as she claims nor can it be satisfied that she will seek to practise Falun Gong is (sic if) she returns to China.
There is no persuasive evidence before Tribunal that enables it to be satisfied that there is a real chance that the applicant will face serious harm for the purposes of the Convention, either now or in the reasonably foreseeable future, if she returns to her country.
For the above reasons the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The applicant claimed in Court that she did not receive a copy of the Court Book. The Court is satisfied that the Court Book was sent to the applicant at the address she notified for service of documents.
The application
In his application, the applicant set out two grounds as follows:
(1)The Tribunal failed to give the applicant information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review and the Tribunal failed to invite the applicant to comment on it. By failing to do so the Tribunal breached the Section 424A(1) of the Migration Act 1958.
(2)The Tribunal failed to ask the applicant for more details of the applicant’s claims. The Tribunal simply invited the applicant to attend a hearing. The applicant did not actually receive such an invitation. The Tribunal incorrectly deprived her of her further opportunity to submit detailed claims.
Findings of the Court in relation to the grounds in the application
Ground one alleges that there was “information” that should have been given to the applicant pursuant to s.424A.
It is clear from the decision of the Tribunal that there was no “information” within s.424A that formed the reason or part of the reason, for affirming the decision of the delegate. The Tribunal made its decision because of a lack of information supplied by the applicant. Section 424A was not breached. Ground one is rejected.
Ground two states that the applicant did not receive the invitation to attend the hearing. The Tribunal sent a s.425 invitation to the applicant on 6 December 2006 (CB 51), inviting her to attend the hearing on 9 January 2007. The letter stated
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone….If you do not attend the hearing and the Tribunal does not postpone the hearing it can make a decision in your case without further notice.
The applicant stated her address for service in her application for review (CB 45). The s.425 letter was addressed to the applicant’s last address for service in accordance with s.441A(c)(1). The letter was posted on 6 December 2006 (CB 51) in accordance with s.441A(4)(a). The s.425 invitation was therefore validly sent to the applicant.
The applicant failed to appear at the hearing (CB 53) and alleges that she “did not actually receive the invitation.” It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting her to attend, if she fails to attend, “the reason for non-attendance at a hearing does not matter”: SZIGQ v Minister for Immigration & Citizenship [2007] FCA 328 per Downes J at [5].
When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of [her] application”: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. The fact that an applicant does not become aware of an invitation under s.425 does not displace the affect of s.441C of the Act. Section 426A empowered the Tribunal to decide the review in the absence of the applicant. The scheme of the Act expressly comtemplates that in particular, in circumstances where the applicant does not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence.
The applicant stated to the Court that she moved from the address in Regent Street, but is unable to tell the Court where she is now living or when she moved. The applicant stated that she did not notify the Court of any change of address. The applicant cannot now complain that letters sent to the address notified to the Court were not received by her. The Court finds that the Tribunal complied with the requirements relating to the sending of an invitation under s.425. The fact that the applicant states that she did not receive the invitation does not mean that there was a failure to comply with the Act. The Tribunal was empowered to decide the matter from the material before it, with the inevitable result that a decision under review was affirmed.
Ground 2 complains further that the Tribunal did not ask the applicant for more details of her claims. As stated in Minister for Immigration, Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 “the Tribunal is under no duty to inquire.” No error of law has been established. The Court rejects ground two.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 10 September 2007
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