SZLBR v Minister for Immigration and Citizenship
[2008] FMCA 154
•15 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLBR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 154 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal’s invitation to come to a hearing was sent in accordance with s.425 of the Migration Act 1958 (Cth) – whether incorrect postcode had the effect that the letter of invitation was not sent to the Applicant’s “address”. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R;91R(3); 91S; 424A; 424A(1); 424A(3)(b); 425; 425A; 441A; 441A(4)(c)(i); 474; pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZLBR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2202 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 5 February 2008 |
| Date of last submission: | 5 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2008 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the respondent: | Mr J. Smith |
| Solicitors for the respondent: | Mr J. Pinder, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2202 of 2007
| SZLBR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 May 2007 and handed down on 14 June 2007.
The Applicant claims to be from the People’s Republic of China (“the PRC”) and a Falun Gong practitioner (“the Applicant”).
The Applicant arrived in Australia on 28 December 2006, having departed legally from Beijing on a passport issued in his own name and a visitor visa issued on 22 December 2006. The Applicant claimed that he had bribed a powerful officer to issue a passport and Australian visa.
On 8 January 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In a statement provided in support of his protection visa application, the Applicant claimed that he feared persecution by the Chinese authorities by reason of being a Falun Gong practitioner. He claimed to have been arrested, detained and mistreated whilst in detention.
On 3 February 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate found the Applicant’s claims to be vague, uncorroborated, lacking in detail and, ultimately, to have been fabricated.
On 7 March 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application, despite a written request from the tribunal dated 17 April 2007.
On 25 May 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 16 July 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal decision
On 16 April 2007, the Tribunal invited the Applicant to attend a hearing on 15 May 2007. The Applicant attended that hearing and gave oral evidence.
The Tribunal noted exchanges it had with the Applicant about his claims and concerns it had arising from the Applicant’s evidence. In particular, the Tribunal noted that it put to the Applicant that his claims were difficult to accept considering the lack of detail and his claim not to be able to remember important details.
The Tribunal found the Applicant was not a witness of truth. The Tribunal found that the Applicant was not and never had been a Falun Gong practitioner and that none of his claims could be accepted as true. The Tribunal found that the Applicant had engaged in Falun Gong practice in Australia for the purpose of strengthening his refugee visa application.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed he relied on the grounds identified in the application filed on 16 July 2007, as follows:
“1. The Refugee Review Tribunal failed to consider the current situation in my original country-China.
2. The decision of the Refugee Review Tribunal is affected by jurisdictional error in that it did not comply with its obligation to put adverse information relied upon as part of the reason for the decision to the applicant for comment.”
Each of the grounds was read for the assistance of the Applicant and he was invited to make submissions in support of either of the grounds or in support of his application generally. The Applicant made no meaningful submission and did no more than state that he is a Falun Gong practitioner and that he had submitted documents based on facts.
Ground 1
The Applicant’s complaint in ground 1 that the Tribunal failed to consider the current situation in the PRC is misconceived in that the Tribunal did not have regard to independent country information as part of its reason for affirming the decision under review.
The Tribunal rejected the Applicant’s claims based on adverse credibility findings about the Applicant’s claims to be a Falun Gong practitioner.
Further, the Tribunal was not satisfied that the Applicant engaged in Falun Gong conduct in Australia otherwise than for the purpose of strengthening his claim to be a refugee. In the circumstances, the Tribunal was obliged to disregard such conduct in accordance with s.91R(3) of the Act.
The Tribunal concluded that none of the Applicant’s claims were true. The Tribunal noted in its decision the concerns it raised with the Applicant arising from his evidence. In particular, his lack of knowledge of basic Falun Gong principles and the lack of detail of his claims.
The Tribunal’s adverse credibility findings are a matter for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67])
The findings and conclusions made by the Tribunal were open to it on the material and evidence before it and for which it gave reasons. The Tribunal applied the correct law to those findings.
Having rejected that Applicant’s claims on the basis of the unsatisfactory nature of the evidence of the Applicant about his claims, the Tribunal was not obliged to consider the current situation in the PRC.
Accordingly ground 1 is not made out.
Ground 2
The Applicant was unable to identify any information that he alleged enlivened the obligations of s.424A of the Act. None is apparent on the face of the Tribunal record.
As stated above in these reasons, the Tribunal’s adverse findings were based solely on the Applicant’s evidence, being information given by the Applicant to the Tribunal for the purposes of his review. In the circumstances, s.424A(3)(b) excludes such information from the obligations of s.424A(1) of the Act.
Accordingly, ground 2 is not made out.
Issue raised by First Respondent
In considering whether the Tribunal complied with all the statutory requirements in the making of its decision, including the conduct of its Review, counsel for the First Respondent raised with the Court the fact that the invitation sent to the Applicant inviting him to come to a hearing contained an error in the postcode.
In his review application, the Applicant identified the following address for correspondence “288/226 Elizabeth Street Surry Hills NSW 2010”. In its letter of invitation to the Applicant, the Tribunal addressed the letter to “288/226 Elizabeth Street Surry Hills NSW 2000”.
There is no issue about whether or not the Applicant received the letter of invitation 4 May 2007. On 2 March 2007, the Tribunal received from the Applicant on a “Response to Hearing Invitation” indicating that he wished to come to a hearing and requesting a Mandarin interpreter. The Applicant attended the hearing before the Tribunal and gave evidence.
Counsel for the First Respondent submitted that the error in the postcode did not have the effect that the Tribunal had failed to comply with the statutory regime for the giving of an invitation to come to a hearing by a tribunal to an applicant in accordance with ss.425 and 425A of the Act. Section 425A provides that an invitation must be sent in accordance with s.441A of the Act. Section 441A of the Act provides that a s.425 invitation may be given to an applicant by prepaid post to the Applicant’s last know address for correspondence as identified on his review application.
Counsel for the First Respondent referred the Court to a handwritten note on a document headed “No Reply Check-List” referred to in the Court Book, being Exhibit 1R. The “No Reply – Check List” document has the handwritten notation “Incorrect postcode was used. Called Aust. Post (131318). Letter was delivered to Darlinghurst ‘Post Shop’ 18.4.07 and picked up on the 1.5.07”. Counsel for the First Respondent submitted that the invitation had indeed been given in accordance with the statutory regime to the Applicant in accordance with s.425A of the Act because it had been delivered to the Darlinghurst post shop on 18 April 2007 and had been picked up on 1 May 2007. However, the full meaning of the note is not clear to me. There is no evidence before me to further explain the meaning of the note. The note appears to have been made by the case officer identified on the document and dated 14 May 2007. There is no evidence from that case officer as to the provenance or meaning of the note. In the circumstances, I do not have regard to the note.
In any event, counsel for the First Respondent submitted that by sending the s.425 invitation to the Applicant at the address to 288/226 Elizabeth Street Surry Hills, the Tribunal had complied with the requirement to dispatch the document to the last address for service provided to the Tribunal by the recipient in connection with the review (s.441A(4)(c)(i)).
The compliance with s.441A of the Act requires dispatch, relevantly, by prepaid post to the last address for service.
In considering the meaning of address, I have regard to the definition of “address” in the New Shorter Oxford Dictionary as, inter alia, “the name of the place to which anyone’s letters etc are directed; ones place of residence”. The use of the word “place” in that definition, to my mind, signifies a physical location. The Macquarie Dictionary defines “place” as, inter alia, “an open space, or square, in a city or town; an area, especially one regarded as an entity and identifiable by name, used for habitation, as a city, town, or village”.
In light of those definitions, the address of “one’s place of residence” is properly identified by the street name and number, where relevant, and suburb. The postcode is not an essential part of the identification of that physical location.
In the matter before this Court, the letter was sent by pre paid post to “288/226 Elizabeth Street Surry Hills”, being the physical location of the place of residence provided by the Applicant and identified by the street name and number and suburb. Accordingly, I am satisfied that, in the circumstances, the Tribunal has complied with the requirements of the statutory regime as imposed by ss.425, 425A and 441A of the Act.
Conclusion
The Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
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.
In any event, even if there was only partial compliance with ss.425, 425A and 441A of the Act by the Tribunal, such that a failure to comply could constitute jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [77]), I would not be disposed to exercise the Court’s discretion to grant relief to the Applicant. The Applicant has not suffered any lack of procedural fairness. The Applicant plainly received the invitation to come to a hearing; responded to the hearing invitation; attended the hearing; and, gave oral evidence and presented arguments to the Tribunal relating to the issues in relation to the decision under review.
The proceeding before this Court is dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 15 February 2008
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