SZLEG v Minister for Immigration

[2008] FMCA 87

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLEG v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 87

MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Migration Act1958 (Cth) ss.425, 425A, 426A

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
VSAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1270

Applicant: SZLEG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2477 of 2007

Judgment of: Barnes FM

Hearing date: 30 January 2008

Delivered at: Sydney

Delivered on: 30 January 2008

REPRESENTATION

Applicant: In Person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. That the application be dismissed.

2. That the applicant pay the costs of the first respondent fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2477 of 2007

SZLEG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 24 July 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of the People's Republic of China, arrived in Australia in February 2007 and applied for a protection visa.  In a statement accompanying her protection visa application she set out her claims, in particular that she had worked as a sales person in a gem factory in China for a number of years.  She claimed that after previously State run enterprises were transferred to the private sector, the directors were reluctant to acknowledge previous sales agreements signed with the factory and that they had misappropriated products entrusted to them for promotion.  From 1999 she had to travel all over China to “claim debts and watch products” and in effect her role was transformed from that of a sales person into a debt collector. 

3. The applicant claimed that in 2002 her factory found it difficult to continue the business due to poor sales performance and that she was asked to retire early.  She claimed that because she had failed to collect debts of a certain amount the factory refused to pay her retirement medical insurance and other subsidies and retained her sales bond as a penalty.  She received only a limited pension after retirement.  She also claimed that in 1999 her husband had become redundant from the same factory.  She claimed that it was unreasonable to deduct her sales bond and subsidy to make up for sales debts and to let her pay the losses.  She also claimed that as a “common fellow” in China she had nowhere for complaint and justice and had no human rights.

4. The application was refused by a delegate of the first respondent who found no nexus between the applicant’s race, religion, nationality, social group or political opinion (the Refugees Convention grounds) and the harm claimed or feared.  

5. The applicant sought review by the Tribunal in an application lodged on 19 April 2007.  She provided a residential address to the Tribunal.  The same address was provided as her address for correspondence.  She did not nominate an advisor to act for her.  The Tribunal wrote to the applicant by letter dated 1 May 2007 inviting her to attend a Tribunal hearing on 25 May 2007.  The applicant responded.  In her response to hearing invitation she indicated that she would attend the hearing and that she required a Cantonese interpreter.

6. According to the Tribunal reasons for decision, on 25 May 2007, the day of the scheduled hearing, the applicant telephoned the Tribunal to say that she had fallen in the shower and could not attend the Tribunal hearing.  The Tribunal again wrote to the applicant at the same address by letter dated 25 May 2007 inviting her to attend the hearing on a new date of 27 June 2007.  She completed a further response to the hearing invitation indicating that she would attend the hearing.  She did not do so.  No issue is taken by the applicant in these proceedings as to compliance by the Tribunal with the requirements of the Migration Act 1958 (Cth) in relation to the invitation to the hearing.

7. In its reasons for decision the Tribunal noted that the applicant had provided a medical certificate in relation to her failure to attend the Tribunal hearing scheduled on 25 May 2007 and that she had replied to the second Tribunal hearing letter of 25 May 2007.  However, the applicant did not appear before the Tribunal on 27 June 2007 at the time and place at which she was scheduled to appear.  The Tribunal observed that she did not contact the Tribunal to seek a postponement of that hearing, or to give any reason as to why she could not attend at the scheduled time.

8. In those circumstances, pursuant to s.426A of the Migration Act 1958, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

9. In its reasons for decision the Tribunal summarised the applicant's claims made in connection with her protection visa application.  The Tribunal also referred to the fact that on 30 May 2007 the applicant had sent it a document dated 29 August 2005 from the gem factory for which she claimed she had worked.  A copy of that document and the translation appears in the Court Book.

10. The Tribunal accepted that the applicant was a citizen of the People's Republic of China.  It found that, as evidenced by the letter of 29 August 2005, she was employed as a sales person at the gem factory (as she had claimed) from 1992 until 2003.  It also accepted that when she ceased working there her employer had penalised her because of debts which she had been unable to recover, detaining her bond and her stock share as part repayment and withholding an amount per month from her pension for the rest of the repayment.

11. The Tribunal set out the applicant’s claims that she had suffered in China, that the requirement that she pay for the losses was unreasonable and that she had no human rights or place to complain and seek justice.  However, the Tribunal stated that it “was not able to explore specific issues with the applicant”, such as why the employer held her liable for the debts and whether she had sought redress against the employer in China.  Nor was the Tribunal able to explore the issue of whether there was a nexus between the actions of the applicant’s former employer and a Convention-related reason.

12. The Tribunal referred to the fact that the applicant had not specified any claims in regard to any harm or persecution she had or would face if she returned to China.  It found:

    Not having had the opportunity to obtain further information from the applicant at a hearing there is insufficient evidence before the Tribunal to show that she has or will suffer any harm or persecution should she return to China.  

13. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if she returned to China.

14. The applicant sought review by application filed in this Court on 13 August 2007.  That application contended that the applicant provided the truth in her statement to the Department and also a “true reference” as a submission to the Tribunal.  It contended that the decision was unfair to the applicant.  No other particulars were provided in support of this claim. 

15. The applicant filed a statement in Chinese with an English translation on 27 November 2007 (apparently in response to an order requiring an amended application with particulars by 29 November 2007).  The statement does not raise fresh grounds of review, but I have considered all of the material in it.  The applicant claimed that she submitted her application for protection visa because she suffered economic persecution as she had detailed, that after the application was refused she sought review by the Tribunal, but that because she “could not find the right direction” she missed the chance for a face to face interview.  She referred to the fact that she had provided “supplemental documents” in May 2007 to support her application, referring to the certificate issued by her former employer to “verify the economic persecution” that she claimed she suffered. 

16. In oral submissions today the applicant reiterated that her claims about what had occurred were true.  She took issue with the merits of the Tribunal decision, contending that the Tribunal had not considered the real situation and that what happened to her was economic persecution. 

17. However, as I indicated to the applicant, the role of the Court is not review of the factual merits of the Tribunal decision.  Nothing in the material before the Court and the claims of the applicant establishes that the Tribunal made a jurisdictional error in its decision or procedures.

18. The applicant takes no issue with the Tribunal's compliance with the statutory procedures under the Migration Act. There is nothing in the material before the Court to raise any suggestion of a failure by the Tribunal to comply with its obligations, in particular under ss.425 and 425A of the Act, to invite the applicant to a hearing.

19. In that respect I note that each of the letters of invitation to a hearing were sent to the address for service provided by the applicant in her review application and that when she informed the Tribunal that she was unable to attend the first scheduled hearing the Tribunal granted her a fresh hearing date. There is nothing in the material before the Court to indicate that the applicant contacted the Tribunal in relation to her failure to attend on the second date scheduled for the Tribunal hearing. In those circumstances there is nothing to suggest any failure by the Tribunal to comply with its statutory obligations in relation to a hearing or to demonstrate error in its decision to proceed under s.426A of the Act.

20. Insofar as the applicant takes issue generally with the Tribunal's failure to accept that she was a person to whom Australia owed protection obligations, as I have indicated, merits review is not available in this Court (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).

21. It is apparent from the reasons for decision that the applicant failed because, given her failure to attend the hearing, in the absence of evidence before it, the Tribunal was unable to reach the required state of satisfaction that she had a well-founded fear of persecution for a Convention reason.  In the absence of affirmative satisfaction that the criteria for the grant of the visa had been satisfied, the Tribunal had no alternative but to refuse the application.  (See SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] and VSAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1270). Moreover, in such circumstances no obligation arose under s.424A of the Act. (SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29] to [30] and SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17] to [18]).

22. Insofar as the applicant appears to query whether or not the Tribunal took into account the evidence that she provided from the gem factory, I note that the Tribunal not only referred to the applicant providing that document, but accepted that document as evidence of her employment and claims in relation to penalties imposed on her.  However, as indicated, given her failure to attend the hearing, the Tribunal was unable to explore issues with her, in particular whether there was a Convention nexus to her claims about the actions of her former employer and any claims in relation to harm or persecution she had or would face if she returned to China.

23. As no jurisdictional error has been established, the application must be dismissed.

24. The applicant has been unsuccessful and the first respondent seeks costs in the sum of $3500.  The applicant told the Court that she had no money and that she was unemployed.  However her lack of funds is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the respondent, although it may be a matter to be taken into account by the first respondent in determining when and how to seek to recover any such costs.

25. The amount sought is at the lower end of the amounts sought in such matters, and I consider it is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  19 February 2008