SZKSV v Minister for Immigration
[2007] FMCA 2049
•26 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKSV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2049 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – although the applicant did not attend the Tribunal hearing the Tribunal was entitled to proceed to a decision under s.426A as it had complied with the notice requirements of ss.425 and 425A – merits review not available in judicial review proceedings. |
| Migration Act 1958, ss.425, 425A, 426A, 441A, 441C, 474 Migration Regulations 1994, reg.4.35D |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZKSV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1777 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 November 2007 |
| Date of Last Submission: | 26 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2007 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1777 of 2007
| SZKSV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was a practising Christian. He alleges that while in China he was an active member of a home church and that this subsequently led to him being denounced for illegal religious activities. The applicant left China for Australia where, he alleges, he has been attending a Chinese church in Padstow.
The applicant claims to fear persecution in China because of his religious beliefs.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
3 February 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on page 4 of the Tribunal’s decision (Court Book (“CB”) page 65). Relevantly, they are in summary:
a)the applicant first came into contact with Christianity in mid-1996. He was influenced by his wife who had been a Christian for most of her life;
b)from 1996 to November 2006 the applicant and his wife attended church every Sunday;
c)in August 2000 the applicant was baptised a Christian;
d)in around August 2002 the applicant’s church was “branded as an illegal church” and he and other church members were denounced for conducting illegal religious activities;
e)it became impossible for the applicant to attend the church publicly;
f)instead, he and the other church members began to attend family religious meetings at members’ homes; and
g)the applicant was unable to practise Christianity freely in China.
The Tribunal’s decision and reasons
By letter dated 15 March 2007 the Tribunal wrote to the applicant to advise that it had considered all the material before it in relation to his application but was unable to make a favourable decision on that information alone (CB 53). The Tribunal invited the applicant to a hearing on 11 April 2007 to give oral evidence and present arguments. The applicant was advised that if he did not attend then the Tribunal might make a decision on his application without further notice. No response was received from the applicant and the applicant did not appear before the Tribunal on the day and at the time he was scheduled to appear. In these circumstances, pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
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 provided very little detail to support his claims;
b)he submitted no supporting documentation such as statements from Christians attending the church which he attends in Australia;
c)he provided no further information to the Tribunal after he lodged his review application;
d)the Tribunal was not satisfied that the applicant’s claims to fear persecution in China on the basis of his religious beliefs and practices were credible, noting that:
i)he did not respond to the Tribunal’s invitation to come to a hearing at which he might have had the opportunity to demonstrate his familiarity with the beliefs and practices of the Christian religion;
ii)his claims were lacking in essential detail;
iii)his claims had been left unclarified and Tribunal’s questions unanswered; and
e)the Tribunal concluded that it was not satisfied that the applicant had suffered persecution in the past, nor that he had a well-founded fear of persecution within the meaning of the Convention were he to return to China in the foreseeable future.
Proceedings in this Court
The sole ground of the application was pleaded in the following terms:
The Refugee Review Tribunal committed jurisdictional errors of law in that it failed to comply with s.425(1) of the Migration Act 1958, which says 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.
In his submissions today the applicant also raised issues concerning his practice of Christianity and his claims to fear persecution were he to return to China.
Dealing with these issues in turn:
Breach of s.425
In relation to the facts underlying the invitation to the applicant to attend the Tribunal hearing, the invitation appears at CB 53 and 54. The copy of the letter reproduced there also includes a copy of the registered post sticker identifying that the letter was sent by registered post. Annexed to the affidavit of Zoe McDonald affirmed 3 October 2007 is a screen dump from Australia Post relating to an article which bears the same reference number as the registered post sticker number reproduced on the letter of 15 March 2007. That screen dump records that the article in question arrived at the Australia Post facility on
16 March 2007and was delivered on 21 March 2007.
Turning to the relevant statutory and regulatory provisions, s.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.
In relation to the dispatch of a s.425A notice, s.441A(4) provides that it may be sent to an applicant by prepaid post to the last address for service the applicant provided to the Tribunal and that the notice must be sent within three working days of the date which the document bears. By dispatching its s.425A letter on 16 March 2007 to the address which the applicant's application for review to the Tribunal reveals was the address he provided for the dispatch of correspondence (CB 48) the Tribunal satisfied the requirements of s.441A(4). Section 441C(4) provides that if a notice is sent by prepaid post in accordance with s.441A(4), then if it is dispatched from a place in Australia to another place in Australia, the recipient is taken to have received the document seven working days after the date the document bears. In this case that date was 26 March 2007. In fact the annexure to Ms McDonald's affidavit reveals that the letter was actually delivered on 21 March 2007, although that date has no practical significance for the current considerations.
Section 425A requires that the applicant be given a period of advance notice in relation to the Tribunal hearing. Regulation 4.35D provides how long that notice period has to be. In cases such as the present where the applicant was not in immigration detention, reg.4.35D(b) provides that the period:
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 11 April 2007. The applicant was not in detention and so the notice had to be received no later than 27 March 2007. As already noted, the letter is deemed to have been received on 26 March 2007. Consequently, the requirements of that regulation were satisfied. A consideration of these facts and the contents of the letter reveals that the requirements of s.425A were satisfied by the Tribunal. That being so, the Tribunal was entitled to proceed under s.426A to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Consequently, the ground pleaded in the application is not made out and no jurisdictional error on the part of the Tribunal is disclosed in connection with its invitation to the applicant to attend its hearing.
Applicant feared returning to China
As to the matters which the applicant raised in submissions today, he told the Court that he is a genuine Christian and was so in China for several years. He told the Court that if he retuned to China he would be sought by Chinese officials and seeks protection in Australia. What these submissions really seek is not judicial review but a reconsideration of the merits of the applicant's claim for a protection visa. Such a review is not available in this Court in proceedings such as these. The Court is concerned to ensure that the Tribunal's processes and procedures comply with the law. It is concerned with the fairness of the procedure, not with the fairness of the outcome. The Court cannot substitute its own views of the facts for those of the Tribunal even were they to be different from the Tribunal's. Consequently, the matters which the applicant raised in his submissions today do not indicate any basis to conclude that the Tribunal's decision is affected by jurisdictional error.
Conclusion
Jurisdictional error on the part of the Tribunal not having been demonstrated, 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: 13 December 2007
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