SZKMB v Minister for Immigration
[2007] FMCA 1238
•30 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKMB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1238 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal. |
| Migration Act 1958, ss.91X, 426A |
| Applicant: | SZKMB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1135 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 July 2007 |
| Date of Last Submission: | 30 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1135 of 2007
| SZKMB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application dated 5 April 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on
22 January 2007 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 25 November 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) requires that the Court not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a female born on 24 July 1955 in Guangdong, China. She has completed five years of primary school. She lists her occupation as a farmer from 1971 to August 2006. (Court Book (“CB”) page 61).
The applicant claims to fear persecution in China because of her 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 61-62). Relevantly, they are in summary:
a)the applicant is a mother of three children and was forced by the local birth control authority to have an induced abortion. As a result, she suffered illness and strong headaches and was weak despite taking medication;
b)one of the applicant’s friends introduced the applicant to Falun Gong and told her that practising Falun Gong would cure her illness. The applicant actively joined this organisation and her health improved. However, the local authorities punished Falun Gong members, some of whom were imprisoned or tortured to death. The applicant fears that if she returns to China she will be persecuted.
After the applicant lodged her review application with the Tribunal, the Tribunal invited her to appear before it at a hearing. In its invitation letter dated 21 December 2006 the Tribunal said that it had considered the material before it in relation to the applicant's review application, but was unable to make a decision in her favour on that information alone.
The applicant returned a "Response to Hearing Invitation", in which she indicated that she did not wish to come to a hearing. Underneath the box in which the applicant put a cross to say no, she did not want to go to a hearing, appear the following words:
I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it. (CB 53).
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)as the applicant did not attend the Tribunal hearing, the Tribunal was denied an opportunity to test her claims;
b)on the evidence before it, the Tribunal found the applicant’s claims to be very vague. She did not provide details about when she started practising Falun Gong, the type of torture she claimed to have suffered as a Falun Gong practitioner, or any details in relation to the induced abortion, noting that she did not claim to fear persecution as a result of having undergone an abortion.
In essence the Tribunal found:
… the applicant’s claims about her involvement with Falun Gong to be vague and undescriptive. In light of the very limited information provided by the applicant, the Tribunal cannot accept that the applicant was a Falun Gong practitioner or was otherwise involved with Falun Gong. (CB 63).
Proceedings in this Court
The application raises four grounds on which the Tribunal's decision is said to be erroneous. However, these grounds do not address the real basis of the Tribunal's decision which was its lack of satisfaction that the applicant met the criteria for a protection visa based on findings drawn from the evidence before it.
Tribunal failed to recognise the principle of non-refoulment
In relation to the first ground in the application, where the applicant says that the Tribunal failed to recognise the principle of non‑refoulment, the Tribunal did discuss the obligations of Australia under the Convention not to return refugees to the countries where they fear persecution; at page 2 of the decision, it discussed Australia's protection obligations under the Convention. In any event, the question of the application of the non‑refoulment principle misunderstands the basis of the Tribunal's decision here, which was that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
Lack of bona fides
In relation to the second ground the applicant asserts that the Tribunal made a finding which it did not actually make. The Tribunal did not discuss bona fides either in relation to itself or in relation to the claim which had been made by the applicant. In any event no evidence has been put before the Court which would suggest that any lack of bona fides on the part of the Tribunal ought to be considered by this Court, or, if it were to be, would have any prospects of success. An allegation of a lack of bona fides is a serious one and, absent evidence in its support, cannot be made out.
Tribunal’s general attack on the applicant’s credit
In the third ground of review, the applicant again raises a ground which does not reflect the decision made by the Tribunal. Contrary to the applicant's assertion in this ground, there was no general attack on the applicant's credit, and this ground fails on the facts.
Tribunal erred in its construction of pt.8 of the “Migration Regulations 1958 (the Act)”
In relation to the fourth ground, the applicant appears to be making reference to pt.8 of the Act which provides for judicial review. The Tribunal does not participate in judicial review except as the subject of it. Consequently, no error is disclosed by this asserted ground of review.
Generally
As for the Tribunal proceeding to decide the review application without having heard from the applicant, no error is disclosed by the Tribunal in doing so pursuant to s.426A of the Act, given that the applicant had indicated to the Tribunal that she did not wish to appear before it.
As to the decision which the Tribunal actually made on this review, no jurisdictional error is demonstrated in respect of it. The Tribunal invited the applicant to a hearing because it was not able to make a finding in her favour on the papers before it. The fact that, without additional information, it was then unable to reach a finding favourable to the applicant was the inevitable consequence of the applicant declining to appear before the Tribunal. The Tribunal considered the information which was before it, which was the slight amount of information contained in the statement lodged with the applicant's protection visa application but, as has already been noted in these reasons, the Tribunal found the applicant's claims about her involvement with Falun Gong to be vague and undescriptive. It went on to conclude that the applicant was not a Falun Gong practitioner and thus there was no real chance that she will be persecuted were she to return to China.
In the circumstances, the Tribunal was unable to reach the necessary level of satisfaction that the applicant met the criteria for the grant of a protection visa. No error is disclosed by the fact that, based on the information before it, the Tribunal could not reach the appropriate level of satisfaction.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 24 August 2007
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