SZLBO v Minister for Immigration

[2008] FMCA 118

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLBO v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 118

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – applicant invited to Tribunal hearing but did not attend – no error in Tribunal proceeding to a decision under s.426A – Tribunal not satisfied visa criteria met.

Migration Act 1958, ss.425, 425A, 426A, 441A, 441C
Migration Regulations 1994, reg.4.35D

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287

Applicant: SZLBO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2193 of 2007

Judgment of: Cameron FM

Hearing date: 31 January 2008

Date of Last Submission: 31 January 2008

Delivered at: Sydney

Delivered on: 31 January 2008

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr. T. Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2193 of 2007

SZLBO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China and he claims to be a Christian. He alleges that while in China he and his mother were often brought to the police station by the authorities because of their religion. The applicant claims that on one occasion they were kept in prison, interrogated and forced to make confessions. The applicant arrived in Australia on 5 November 2006.

2. The applicant claims to fear persecution in China because of his Christian faith, although in his submissions to the Court today he said that he would face three to five years’ prison in China because of his political involvement.

3. After his arrival in Australia, the applicant lodged an application for a protection visa.  This was refused by the Minister’s delegate on 22 December 2006.  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.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 6 of the Tribunal’s decision (Court Book (“CB”) pages 59 – 61). Relevantly, they are in summary:

   a)the applicant was born into a Christian family in China;

   b)under his mother’s guidance the applicant became a faithful Christian;

   c)however, the Chinese Communist Party allowed only “one so-called belief – Communism”;

   d)government officers often came to the applicant’s home seeking out “evidence of resisting the government”. In addition, the applicant and his mother were often brought to the police station where they were compelled to say “something about their church” and induced to make “a confession to say the names of our converses”;

   e)in 2001 the applicant and his mother were put in prison for a day without food or water. They were interrogated during the night and were not allowed to sleep; and

   f)the applicant has never given up his Christian faith and has been pursuing “the truth”.

The Tribunal’s decision and reasons

1. By letter dated 22 February 2007 (CB 49) the Tribunal advised the applicant that it had considered the material before it but was unable to make a favourable decision on the information alone. The applicant was invited to a hearing before the Tribunal on 21 March 2007 to give oral evidence and present arguments. The letter advised the applicant that if he failed to attend the hearing the Tribunal could make a decision on the matter without further notice. No response was received and the letter was not returned to the Tribunal. The applicant did not appear before the Tribunal on the day and at the time and place scheduled. Consequently, and pursuant to s.426A, the Tribunal proceeded to make its decision on the matter without taking any further action to enable the applicant to appear before it.

2. 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 reasons:

   a)the material before the Tribunal was insufficient for it to determine the details and veracity of the applicant’s claims;

   b)his claims were vague and amounted to incomplete assertions;

   c)the Tribunal did not have the opportunity through the scheduled hearing to obtain further information from the applicant;

   d)based on the limited information before it, the Tribunal could not be satisfied about the circumstances of the applicant’s life in China and his claim that he was a Christian; and

   e)overall, the Tribunal could not be satisfied that the applicant has a well-founded fear of persecution by reason of his religion or for any other Convention reason.

Proceedings in this Court

1. The grounds of the application were pleaded as follows:

   1. The Tribunal failed to comply with its obligation pursuant to the Migration Act 1958 and denied the Applicant procedural fairness.

   Particulars

   The Tribunal did not find the Applicant to be a credible witness because the Applicant did not impress the Tribunal. This indicates that the Tribunal used its personal judgement in reviewing the refusal application.

   The Tribunal did not accept the Applicant’s explanation that there were difficulties of gathering evidence in relation of his claim, especially the fact that the Applicant was depressed and in an unfit mental state after experiencing the persecution by Chinese authorities.

   The Tribunal did not give the consideration on the relevant country information about China that the Christians/Shouters are being persecuted in China.

2. The application appears to be some form of pro forma document as it bears no relationship to the terms of the Tribunal's decision. The issue before the Court is whether the Tribunal's decision was affected by jurisdictional error which in the circumstances of this case turns first on whether the Tribunal was entitled to proceed to a determination pursuant to s.426A of the Act, and if it was, whether the Tribunal's decision is in some other way affected by jurisdictional error.

3. Section 425(1) of the Act 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.

4. Section 425A of the Act 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.

5. The affidavit of Jonathan Willoughby‑Thomas sworn 16 October 2007 satisfies me that the s.425A letter was addressed to the applicant at the address given by him in his application for review, was dated 22 February 2007 and was dispatched by post on 23 February 2007. I find that the letter was sent to the applicant on 23 February 2007.

6. Today from the Bar table the applicant has said that he had retained a migration agent and that the migration agent was in Shanghai at the time the s.425A notice was sent and that the applicant never received that notice as a consequence. However, it should be noted that in his application for review, a copy of which is annexed to Mr Willoughby‑Thomas's affidavit and is also reproduced at CB 45 – 48, the applicant did not indicate that he had an adviser representing him in the review proceedings before the Tribunal. In fact, the address to which the letter was sent was the address set out by the applicant in his application for review, against the words “Residential address in Australia”.

7. It is already noted, the s.425A notice invited the applicant to a hearing on 21 March 2007. In relation to the dispatch of a s.425A notice, s.441A(4) provides that the Tribunal may effectively give that notice to the applicant by posting it within three working days of the date of the notice to the last address for service provided by an applicant to the Tribunal or to the last residential or business address which an applicant provides to the Tribunal. By dispatching a s.425A letter on 23 February 2007 to the address given by the applicant in his application to the Tribunal the Tribunal satisfied the requirements of this section. Section 441C(4) of the Act provides that if a notice is dispatched in accordance with s.441A(4) from an address in Australia to another address in Australia it is taken to have been received seven working days after the date the document bears. Because the Tribunal complied with s.441A(4) the notice is taken to have been received by the applicant seven working days after the date it bears, namely 5 March 2007.

8. Regulation 4.35D of the Migration Regulations 1994 provides a period of notice which an applicant is entitled to have in respect of a Tribunal hearing. In the circumstances of this case the applicant had to receive the notice no later than 6 March 2007 and, as already noted, the notice is deemed to have been received on 5 March 2007. Consequently the requirements of reg.4.35D have been met.

9. Section 426A(1) provides that if an applicant who is invited pursuant to s.425 to appear before the Tribunal does not appear before the Tribunal on the day and at the time and place that the applicant is scheduled to appear the Tribunal may make a decision on the review without taking any further action to enable the applicant to appear before it. In the circumstances, the Tribunal discharged its obligation to invite the applicant to the hearing and its decision to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it is not infected with error.

10. As for the adverse decision the Tribunal made, it had already indicated to the applicant in its s.425A notice that it was not in a position to make a decision in his favour on the material it then had. As the applicant failed to appear at the hearing, the Tribunal had no additional information before it upon which it could arrive at a different view. The Tribunal is required to affirm the decision of the delegate if it is not satisfied that an applicant meets the criteria for the grant of a protection visa. In circumstances where the Tribunal needed additional information in order to reach such a level of satisfaction and where the applicant has failed to appear before it to provide such additional information and arguments, the Tribunal really had no alternative but to reach the decision it did.

11. By failing to attend the applicant denied himself the opportunity to give, and the Tribunal the opportunity to receive, information which may have led it to the state of satisfaction leading to a different outcome. In this regard it is worth noting what the Full Court of the Federal Court said in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]:

    ... it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value the short and very vague outline of his basis for fearing persecution in China.  Having found that the outline was not sufficient to satisfy it that appellant had a well‑founded fear of persecution it could do little more than offer him an opportunity to elaborate.  When he failed to accept that opportunity, the inevitable consequence was the rejection of his application. 

12. Because the Tribunal was unable to reach the level of satisfaction required by the Act no jurisdictional error has been shown in the decision on the review which the Tribunal made. 

Conclusion

1. As jurisdictional error on the part of the Tribunal has not been demonstrated the application will be dismissed. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 22 February 2008