SZKNQ v Minister for Immigration

[2008] FMCA 148

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKNQ v MINISTER FOR IMMIGRAITON & ANOR [2008] FMCA 148

MIGRATION – Review of Refugee Review Tribunal decision – complaint that letter of invitation to hearing was not received by the applicant – Tribunal unable to be satisfied on what it had before it that applicant was owed protection obligations – no jurisdictional error found – application dismissed.

Migration Act 1958, ss.36(2), 65, 441A, 441C(4), 425A, 426A, reg.4.35D

SJSB v Ministerfor Immigration & Multicultural & IndigenousAffairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86
VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611

Applicant: SZKNQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1283 of 2007

Judgment of: Nicholls FM

Hearing date: 8 February 2008

Date of Last Submission: 8 February 2008

Delivered at: Sydney

Delivered on: 8 February 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: In person

Counsel for the Respondent: Mr J Mitchell

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

(i)The application made on 20 April 2007 is dismissed.

(ii)The applicant pay the first respondent’s costs set in the amount of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1283 of 2007

SZKNQ

Applicant

And

MINISTER FOR IMMIGRAITON & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me an application made under the Migration Act1958 (“the Act”) filed in this Court on 20 April 2007, seeking review of the decision of the Refugee Review Tribunal, signed on 6 March 2007 and handed down on 27 March 2007, which affirmed the decision of a delegate of the first respondent to refuse the grant of a protection visa to the applicant. 

Background

1. I note that the first respondent has put a bundle of relevant documents before the Court (Court Book – “CB”) and from this material the following can be discerned. 

2. The applicant is a national of the People’s Republic of China who arrived in Australia and applied for a protection visa in September 2006. 

3. On 11 November 2006, a delegate of the respondent minister refused to grant a protection visa to the applicant and on 4 January 2007 the applicant applied to the Tribunal for review of that decision. 

The applicant’s claims to protection

1. The applicant’s claims to protection were initially set out in a statement attached to her protection visa application and in a statement attached to her application for review (reproduced at CB 45). 

2. The applicant’s claims were that she was introduced to the practice of Falun Gong in February 1997 and that she practised for some little time.  She claimed generally to have been harmed while in China, that she witnessed other Falun Gong practitioners who had been sent to jail and dismissed from their employment, that she feared that she would be similarly treated and, for that reason, did not practise Falun Gong publicly. 

3. She claimed that it was this fear that ultimately made her leave China. I note that she had sought to move to Hong Kong and ultimately came to Australia claiming to fear persecution on the basis of her Falun Gong beliefs and practise.

The Tribunal

1. As I outlined for the applicant at the hearing; upon receipt of her application for review, the Tribunal sent a series of letters to the applicant in connection with the review.  I note that in her application for review the applicant provided an address for service, being an address at Thomas Street, Haymarket New South Wales, and also provided her residential address. 

2. On 5 January 2007, the Tribunal sent a letter to the applicant at her address for service in which it set out the process by which it was minded to conduct the review.  Importantly, the Tribunal noted in this letter that it was possible that the applicant would be invited to a hearing before it and that this would be her opportunity to give evidence in support of her application. 

3. On 12 January 2007, the Tribunal sent a further two letters to the applicant.  One invited the applicant to comment on certain information and the other invited the applicant to a hearing scheduled to take place on 1 March 2007. 

4. Importantly, both these letters were sent to the applicant at the address for service that she herself had provided to the Tribunal.  From what appears in the material, the Tribunal had not heard anything from the applicant by the relevant date, and on 7 February 2007, it sent a further letter to the applicant (reproduced at CB 55). Again, this was addressed to the address for service provided by the applicant herself and this letter referred to the Tribunal’s earlier correspondence, noted that the applicant had not responded, and confirmed that the hearing that had been scheduled for 1 March 2007 would proceed.

5. It appears from the material that the letters of 12 January were returned to the Tribunal as undeliverable and with “return to sender” recorded on them. But, as the Tribunal itself noted in its decision record, there is nothing before the Court today to cast any doubt on what is set out in the Tribunal’s decision record in this regard. It noted the sending of the two letters dated 12 January to the applicant.  It noted that as no response had been received by 6 February, it had sent a further letter dated 7 February. It noted further that while the letters of 12 January had been returned to the Tribunal, the letter of 7 February, as at the time of its consideration, had not been returned to it. 

6. The Tribunal noted that the letter inviting the applicant to the hearing was sent to the address for correspondence which the applicant herself had given in her application for review.  It noted that correspondence which had been addressed to the applicant at her residential address had already been returned previously and there was no contact phone number or facsimile number on the application to enable the Tribunal to otherwise contact the applicant and it noted, importantly, that in the application for review, the applicant had signed the relevant undertaking that she would notify the Tribunal of any changes in her personal circumstances, including if there was a new address.

7. Having satisfied itself that it had sent the letters to the address for service, the Tribunal decided to proceed to make a decision without taking any further action to enable the applicant to appear before it pursuant to s.426A of the Act.

8. Ultimately, after finding that the applicant was a national of China, the Tribunal considered that the applicant had only provided a brief outline of her claims, noted that she had been properly invited to attend the hearing before it, but ultimately, on what was before it, and given the lack of detail in what had been put before it, the Tribunal was unable to be satisfied that the applicant was a person who was a practitioner of Falun Gong. It was therefore not able to be satisfied that the applicant was a person to whom Australia owed protection obligations. 

The Application

1. The application before the Court puts forward, with no particulars whatsoever, three grounds as follows:

   “1. The Tribunal failed to consider the real chance of risk of being jailed if the applicant return to her original country.

   2. The Tribunal made the decision which is not reasonable. 

   3. The Tribunal failed to take into account all of my relevant information.”

[Errors in original]

Hearing before the Court

1. At the hearing before the Court, Mr Mitchell appeared for the first respondent and the applicant appeared in person, with the assistance of a Mandarin interpreter.

Consideration

1. Turning first to this issue of the Tribunal’s obligation to invite the applicant to a hearing in the circumstances. Section 425A of the Act sets out the obligations in relation to this invitation to hearing. Relevantly, I note that the letter inviting the applicant to the hearing must be sent by one of the methods specified in s.441A of the Act. In this case, I am satisfied on the evidence before me that the letters were sent by post. Relevantly, the letter inviting the applicant to the hearing was sent to the applicant’s last address for service provided to the Tribunal. Noting the provisions of s.441C(4) and reg.4.35D of the Regulations, I am satisfied on the material that has been put before me that the Tribunal’s letter of invitation satisfied all the relevant requirements, both as to what was to be contained in that letter, where that letter was to be, and how that letter was to be transmitted to the applicant, and that the Tribunal’s invitation, bearing in mind the scheduled hearing date of 1 March 2007, complied with all the relevant notice periods. In all, therefore, it was open to the Tribunal to exercise its discretion pursuant to s.426A in the way that it did, that is, to proceed to make a decision on the review without taking any further action to enable the applicant to appear before it.

2. I note in this regard, as submitted by Mr Mitchell, that the applicant had signed an undertaking to notify the Tribunal of relevant and current contact details.  On what the applicant has said today, even if the address for service had changed, there is nothing before the Court today to show, nor importantly did the applicant assert, that any attempt was made to notify the Tribunal of any change of address to which correspondence could be sent. 

3. The applicant’s complaint that she did not actually receive any letters from the Tribunal does not assist her, in the circumstances, where the Tribunal, I am satisfied, did meet both its statutory and regulatory obligations relevant to this issue. 

4. Ultimately, I also note that nothing is before me to show that the letter of 7 February was returned to the Tribunal as undeliverable.  But in any event, even if that letter had been so returned, it would not alter what I have already said. 

5. I am satisfied also that the Tribunal did all that it could in the circumstances and, in any event, as I said, the critical issue is it complied with what it is required by law to address. 

6. This is a matter which on any view falls squarely within the relevant law. In relation to protection visas, the Act sets out - and I refer here in particular to s.65 and s.36(2) of the Act - that in effect, the relevant decision maker - and in this case it is the Tribunal - must reach a requisite level of satisfaction that the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention. Simply, if the Tribunal is unable to reach this level of satisfaction then the protection visa which had been applied for must not be granted. I refer to such authorities as SJSB v Ministerfor Immigration & Multicultural & IndigenousAffairs [2004] FCAFC 225, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86 and VSAF of 2003 [2005] FCAFC 73.

7. In this case, the Tribunal, through its letter, put the applicant on notice that it was unable to reach the requisite level of satisfaction that the law required it to reach. It did all that it could to provide the applicant with the opportunity of persuading it to reach the requisite level of satisfaction. 

8. On what was before it, it was open to the Tribunal to reach the conclusion that it could not be satisfied that the applicant was a refugee.  The Tribunal noted the lack of detail in the applicant’s claims and noted the lack of opportunity for it to explore the truth of the applicant’s claims.  In all the circumstances, I cannot see any error in how the Tribunal has approached its task in that regard.

9. Turning to the three grounds that are stated in the application put to the Court; I agree with Mr Mitchell’s written submissions in relation to each of the grounds. The applicant’s complaint that the Tribunal failed to consider the real chance of risk of her being jailed in effect, if she returned to China, does not succeed, given that the Tribunal plainly did note the applicant’s claim to have been a Falun Gong practitioner, that she was of interest to the police and that she had previously experienced harm. 

10. Clearly, in turning its mind to those claims, the Tribunal’s decision record reveals that its inability to reach a level of satisfaction that the applicant was a person to whom Australia owed protection obligations was based on its lack of satisfaction, which derived from the consideration as to whether there was a likelihood that she would be harmed for a Convention related reason in the future.  I note reference to the matter of Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 in Mr Mitchell’s submissions.

11. As to the complaint that the Tribunal made a decision which was not reasonable (even putting aside the extent to which unreasonableness or reasonableness is available as a ground for review in matters of this type), based on the findings of the lack of detail in the applicant’s claims and the non-appearance of the applicant at the scheduled hearing, as I said earlier; the Tribunal was entitled to then proceed to the ultimate conclusion that it made. I can only agree with Mr Mitchell that in these circumstances, it can hardly be said that the findings were unreasonable.  And I note and agree with a reference to Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611.

12. The third ground asserts that the Tribunal failed to take into account all of the relevant information.  The application provides no particulars in support of that claim, nor was the applicant able to assist the Court at the hearing in this regard.  But again, as Mr Mitchell’s submissions state; the Tribunal plainly made findings of non-satisfaction relating to each of the integers of the applicant's claims.  Namely; her claims to have been a Falun Gong practitioner, claims of past persecution and interest to police. I am satisfied that the Tribunal properly understood the applicant’s claims and there is nothing before me to show that there was any misunderstanding.  Again, as Mr Mitchell submits, the Tribunal was not obliged to make further findings in respect to each detailed factual contention; noting of course that there was a lack of detail in the applicant's claims in any event. 

Conclusion

1. In all, none of the grounds as stated in the application assist the applicant.  Nothing that the applicant has said to the Court today would lead the Court to discern any jurisdictional error in what the Tribunal has done.  The Tribunal complied with its obligations to enable the applicant to appear before it.  As I said to the applicant during the course of the hearing; there is some obligation, and some expectation, that the applicant would ensure that the Tribunal would have an address at which correspondence would reach the applicant.  Indeed, as I have already noted, the applicant signed an undertaking in this regard. 

2. Having addressed the relevant obligations in terms of enabling the applicant to appear before it, and being satisfied that these obligations had been met, the Tribunal was simply unable to be satisfied, as is required by the statutory regime that applies to matters of this type, that the applicant was a person to whom Australia owed protection obligations on what had been put before it.  I cannot discern jurisdictional error in what the Tribunal has done and this application is therefore dismissed.

3. I note that the applicant has made no submissions on the issue for costs despite the opportunity being provided to her.  I cannot see any reason not to make the costs order that is sought. As to the amount, I am satisfied in all the circumstances, noting of course that the amount is less than the amount of $5000 which is set out in the Schedule to the Rules of this Court.  In any event, I am satisfied that the amount of $4,250 is reasonable in all the circumstances so I will make that order.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 8 February 2008