SZKLZ v Minister for Immigration

[2007] FMCA 1851

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKLZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1851

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether RRT discharged its duty under s.424A of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth), ss.65(1); 424A; 425; 425A; 426A

SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA;
SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
MIEA v GUO & Anor (1997) 191CLR 559;
Nagalingam v Milgea (1992) 38 FCR 191;
Prasad v Miea (1985) 6 FCR 155

Applicant: SZKLZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1131 of 2007

Judgment of: Emmett FM

Hearing date: 5 November 2007

Date of last submission: 5 November 2007

Delivered at: Sydney

Delivered on: 5 November 2007

REPRESENTATION

Applicant in person with Mandarin interpreter

Counsel for the Respondent: Ms S. Sirtes

Solicitors for the Respondent: Ms T. Quinn, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1131 of 2007

SZKLZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant claims to be entitled to a protection visa by reason of her fear of persecution by the authorities in China by reason of being a Falun Gong practitioner.

2. On 30 September 2006 the Applicant arrived in Australia.

3. On 4 October 2006 the Applicant lodged an application for a protection visa with the then Department of Immigration and Multicultural and Indigenous Affairs. In support of that application, the Applicant attached at statement in which she claimed to have been a member of Falun Gong since 1998. She stated that she was asked by a senior Falun Gong member to promote Falun Gong in her workplace. She stated that she met with other Falun Gong members and participated in Falun Gong activities in Shanghai and later in Beijing in 1999. The Applicant stated that she was officially warned by her employer not to practice Falun Gong anymore or she would be imprisoned. She stated that she promised she would stop. However she went secretly to Beijing with other Falun Gong members and protested against the Chinese government for its banning of Falun Gong practice. The Applicant stated that whilst in Beijing she was photographed by police and when she returned to Shanghai she was “persecuted to have mental sickness”. She claimed to have been forced to confess on three occasions to police and was “beaten and mentally tortured” on those occasions. She stated she was subsequently released because of her “mental problems” and “had to see doctors”.

4. On 5 December 2006 a delegate of the First Respondent (“the Delegate”) refused the Applicant a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations. The Delegate found the Applicant’s claims in relation to Falun Gong to be “general and unsubstantiated”. The Delegate found that the Applicant provided no evidence to satisfy the Delegate that she had faced adverse attention of any kind from the PRC authorities.

5. On 29 December 2006 the Applicant lodged an application for review (“Review Application”) of the Delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). The Applicant did not provide any further information in support of the Review Application.

6. On 3 January 2007 the Tribunal wrote to the Applicant acknowledging receipt of her application and inviting her to send any documents, information or other evidence she wished the Tribunal to consider. The letter also informed the Applicant that she should tell the Tribunal immediately of any change in her contact details.

7. On 15 January 2007 the Tribunal wrote to the Applicant at her identified mailing address informing her that the Tribunal had considered the material before it in relation to her Review Application but was unable to make a decision in her favour on that information alone. The letter went on to invite the Applicant to come to a hearing of the Tribunal to give oral evidence and present arguments on a specified date at a specified time and place.

8. The letter went on to inform the Applicant that if she thought she may be unable to attend the hearing, she must contact the Tribunal immediately, because, if she did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on her case without further notice. The letter also invited the Applicant to send any new documents or written arguments she wished the Tribunal to consider and to complete and return the enclosed Response to Hearing Invitation Form.

9. On 23 January 2007, the Tribunal received from the Applicant the Response to Hearing Invitation Form indicating that the Applicant did wish to come to the hearing and requested a Mandarin interpreter.

10. The Tribunal records disclose that the Applicant did not attend at the scheduled time, date and place of hearing.

11. In its decision, the Tribunal noted that it had written to the Applicant on 15 January 2007 inviting the Applicant to attend a hearing and noting that the Tribunal received a response from the Applicant on 23 January 2007 indicating that she would attend the hearing.

12. The Tribunal noted that the Applicant did not attend the Tribunal on the day of the scheduled hearing, nor did she contact the Tribunal to seek a postponement or to explain her failure to attend. The Tribunal found that it was satisfied that it had discharged its obligation to give the Applicant an opportunity to appear before it to give evidence. In those circumstances, the Tribunal purported to exercise its discretion pursuant to s.425A of the Migration Act 1958 (Cth) (“the Act”) to make a decision on the evidence before it without taking further action to allow the Applicant to appear before it.

13. The Tribunal had regard to the only evidence of the Applicant’s claims to be a refugee as provided in her statement in support of her application for a protection visa. The Tribunal found that her claims lacked detail in important respects. The Tribunal identified those areas of concern which the Tribunal would wish to have explored with the Applicant at a hearing. The Tribunal noted that the Applicant’s claims were “mere assertions which the Tribunal has not had the opportunity to test at a hearing.” The Tribunal concluded that “given the lack of detail in the Applicant’s claims and without the opportunity to explore the details or test the truthfulness of her claims at a hearing, the Tribunal is unable to be satisfied that the Applicant is or ever was a Falun Gong practitioner.” The Tribunal affirmed the decision under review.

14. On 5 April 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

15. The Applicant appeared before this Court this morning without representation, although she had the assistance of a Mandarin interpreter. The Applicant confirmed that she relied on the grounds identified by her in a further amended application filed on 13 June 2007. Those grounds are as follows:

    “1. I was not given an opportunity to explain my case. I could not manage to attend the hearing on time.  By the time I got to the RRT office, I was told that the hearing was over, I could leave because the hearing was over.  I therefore was not given an opportunity for a hearing. 

    2. The Tribunal failed to carry out its statutory duty. I was not notified the reason or part of the reasons for affirming the decision in accordance with s.424A of the Migration Act 1958”

16. The grounds were interpreted for the Applicant. The Court informed the Applicant that there was no evidence before the Court to support her Application in terms of her failure to attend the hearing. The Court informed the Applicant that she had been directed on two occasions to file and serve evidence in support of her application. The Court invited the Applicant on at least 3 occasions to seek leave of the Court to give such evidence orally on oath. The Court explained to the Applicant that if she chose to give oral evidence in support of her application at the hearing before this Court, then Counsel for the First Respondent may ask her some questions about her evidence. The Applicant repeatedly stated that she did not wish to give evidence on her behalf.

17. The First Respondent read an affidavit of Marina Osmo confirmed on 10 July 2007. Ms Osmo is the Registry Manager of the Tribunal Services Unit of the Sydney Registry of the Refugee Review Tribunal. Ms Osmo annexed to her affidavit a copy of the Registry Hearing Schedule for the time and date at which the Applicant was invited to attend. The record indicates that a hearing room was booked in the name of the Applicant for hearing between 10.30am and 1.30pm and that a Mandarin interpreter was in attendance. The schedule then indicates that there was “no show” by the Applicant.

18. Ms Osmo’s affidavit deposes to the practice at reception of assistance provided upon their arrival.

19. There is nothing in the evidence of the Tribunal records before this Court to suggest that the Applicant attended the Tribunal on the day of the hearing, or that she contacted the Tribunal after the hearing to explain her absence. The Tribunal decision makes it clear that the Applicant did not contact the Tribunal prior to the scheduled hearing to seek a postponement or to explain her failure to attend.

20. The Applicant declined to make any submission in support of Ground 1 of the further amended application. There is no evidence before this Court in support of Ground 1.

21. In the circumstances, the Court is satisfied that the Tribunal complied with the statutory regime provided for in sections 425 and 425A of the Act in inviting the Applicant to appear before it.

22. The Tribunal noted its compliance with the statutory regime. In the circumstances, the Tribunal was entitled to exercise its discretion pursuant to s.426A of the Act to make its decision on the review without taking any further action to allow or enable the Applicant to appear before it.

23. Accordingly, Ground 1 is not made out.

24. The Applicant declined to make any submission in support of Ground 2 of the further amended application. Ground 2 is not particularised and appears to be misconceived. Section 424A of the Act does not require the Tribunal to put its final decision to the Applicant.

25. There was no evidence relied on by the Tribunal in affirming the decision under review that was not otherwise information provided by the Applicant. It was the inadequacy of the Applicant’s information that lead the Tribunal not to be satisfied that the Applicant met the criteria for being a refugee (SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA per Allsop J at [29] to [30]; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238).

26. Moreover, the Delegate’s decision made clear to the Applicant that her claims were lacking in detail. The Applicant declined to provide any further material to the Tribunal in support of her claims, despite being invited to do so on two occasions.

27. The Tribunal noted that it is not required to accept uncritically any and all the allegations made by an applicant and referred to MIEA v GUO & Anor (1997) 191CLR 559 at 596; Nagalingam v Milgea (1992) 38 FCR 191; Prasad v Miea (1985) 6 FCR 155 at 169-70.

28. The conclusions of the Tribunal were open to it on the materials before it and for which it provided reasons. Section 65(1) of the Act mandates that if the Tribunal is not satisfied that an applicant meets the criteria required for a protection visa then a protection visa is to be refused.

29. 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.

30. The proceeding before this Court commenced by way of application filed on 5 April 2007 is dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  5 November 2007