SZLGC v Minister for Immigration

[2008] FMCA 399

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLGC v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 399

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – criteria for proceeding to a decision under s.426A, following non-attendance by the applicant at the Tribunal hearing, were satisfied – Tribunal not satisfied applicant met the criteria for the grant of a protection visa.

Migration Act 1958, ss.424A, 425, 425A, 426A, 441A, 441C
Migration Regulations 1994, reg.4.35D

SZLCG v Minister for Immigration & Citizenship [2008] FMCA 22
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195

Applicant: SZLGC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2673 of 2007

Judgment of: Cameron FM

Hearing date: 20 March 2008

Date of Last Submission: 20 March 2008

Delivered at: Sydney

Delivered on: 20 March 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr H. Bevan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $2,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2673 of 2007

SZLGC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Indonesia and is of Chinese ethnicity. She asserts that being a Chinese Indonesian in Indonesia is always a big problem. She claims that ethnic Chinese Indonesians are targeted by mobs when there are riots and demonstrations. The applicant arrived in Australia on 16 March 2007.

2. The applicant claims to fear persecution in Indonesia because of her Chinese ethnicity.

3. After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 20 April 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.

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 – 5 of the Tribunal’s decision (Relevant Documents (“RD”) pages 59 – 60). Relevantly, they are in summary:

   a)being an ethnic Chinese in Indonesian “is always big problem”;

   b)the situation in Indonesia has become worse and when there are riots or demonstrations ethnic Chinese become scapegoats or are targeted by the mob;

   c)she has been raped by a local Indonesian; and

   d)based on her experiences, it is dangerous for the applicant to go back to Indonesia.

The Tribunal’s decision and reasons

1. By letter dated 4 June 2007 (RD 47) the Tribunal advised the applicant that it had considered the material before it but was unable to make a favourable decision on that information alone. The letter was sent to the address for correspondence identified by the applicant in her application for review (RD 42). In that letter of 4 June 2007 the applicant was invited to a hearing before the Tribunal on 5 July 2007 to give oral evidence and present arguments. The letter advised the applicant that if she failed to attend the hearing the Tribunal could make a decision on the matter without further notice. No response was received from the applicant, although the letter was returned to the Tribunal after the Tribunal’s decision had been signed, but before it had been handed down (RD 54). 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 findings and reasons:

   a)the Tribunal found that the applicant’s claims did not provide a sufficient basis for it to be satisfied there is a real chance she would suffer serious harm should she return to Indonesia, noting that:

   i)her claims were unsubstantiated and given their notably brief and vague nature, amounted to no more than simple assertions;

   ii)she made brief and passing references to a number of incidents and conflicts in Indonesia but did not explain how these might relate to her own particular circumstances;

   iii)she claimed that her ethnicity is always a big problem but provided no details beyond a simple assertion that she was raped;

   b)because the applicant did not attend the hearing to present evidence and oral argument, the Tribunal was unable to offer her the opportunity to provide further details concerning her claimed experiences; and

   c)on the basis of the information before it, the Tribunal was not satisfied that the applicant ever suffered any harm in Indonesia or that there was a real chance that she would suffer harm in the future.

Proceedings in this Court

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

   (1)The Tribunal failed to exercise its jurisdiction by not observing procedures which it was required by the Act to observe.

   (2)The Tribunal failed to explain why the information contained in the application for a protection visa is relevant to the decision.

   (3)The Tribunal did not adequately consider that I would be put into danger if I went back to Indonesia.

2. Dealing with each of these grounds in turn:

Tribunal failed to exercise its jurisdiction by not observing procedures

1. This asserted ground of review is not particularised and there is nothing in the application or in anything which the applicant has said today which identifies what procedures the Tribunal may not have observed. 

2. The most obvious candidate for consideration under this heading is the fact that the Tribunal proceeded to a decision under s.426A of the Act because the applicant failed to attend the Tribunal hearing listed on 5 July 2007. However, were that to be the allegation being made, it is not well‑founded. Pursuant to s.425 of the Act, the Tribunal is required to invite an applicant to a hearing if, on the information before it, the Tribunal cannot make a decision in the applicant’s favour. In those circumstances, the Tribunal is required to serve a notice on the applicant pursuant to s.425A of the Act. Such a notice must contain information of the sort contained in the Tribunal’s letter of 4 June 2007 (RD 47 – 48). I find that the letter of 4 June 2007 meets the requirements of s.425A as to its content.

3. Another requirement of s.425A is that the applicant is to be notified of the invitation to attend the hearing by means of one of the steps prescribed in s.441A. One of those methods is by sending the s.425A notice to the applicant by pre-paid post. I am satisfied, based on the registered post sticker reproduced on the first page of the letter of 4 June 2007, together with what the Tribunal says in the third full paragraph at RD 59, that the Tribunal did send that letter to the applicant by pre-paid post. Moreover, I find that it did so on 4 June 2007. Because in such circumstances I find that the requirements of s.441A(4) are satisfied, the consequence is that s.441C(4) deems the applicant to have received the letter seven working days after the date which the document bears. In this case, the date of deemed receipt is 13 June 2007. Regulation 4.35D of the Migration Regulations 1994 provides that for the purposes of s.425A(3), the reasonable period of notice of the Tribunal hearing is 14 days after the day on which the notice is received. That means in this case that the notice had to be received no later than 20 June 2007. As already noted, the letter is deemed to have been received on 13 June 2007. Consequently, the requirements of reg.4.35D have been satisfied.

4. That being so, the Tribunal was empowered under s.426A to proceed to a decision on the review application if the applicant failed to attend the Tribunal hearing. I find no error in the Tribunal proceeding to reach its decision in this case, notwithstanding that after it signed its decision it appears that the s.425A letter was returned to it (cf. SZLCG v Minister for Immigration & Citizenship [2008] FMCA 22 at [17] – [40]).

5. Consequently, to the extent that the first asserted ground of review alleges that the Tribunal was not entitled to proceed to a decision in the applicant’s absence, it is not made out.

Tribunal failed to explain why the information contained in the application for a protection visa was relevant to the decision

1. With all due respect to the applicant, this asserted ground of review makes no sense. The Tribunal’s role is to consider the material and arguments which were before it. It is for an applicant to advance evidence in support of the claim which that applicant makes. If such information or claims are relevant to the application, they will be taken into account by the Tribunal in its deliberations, but only information which is relevant to the Tribunal’s decision needs to be referred to by the Tribunal in that decision. It is required to explain its decision, not the application. 

2. To the extent that the second asserted ground of review suggests a breach of s.424A of the Act, it cannot succeed. There were no s.424A obligations in this case. It should be noted that the basis of the Tribunal’s decision was its lack of satisfaction that the applicant met the criteria for a protection visa. Such a lack of satisfaction is an evaluative conclusion and does not raise s.424A obligations: SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 per Allsop J. Consequently, I conclude that the second asserted ground of review is not made out.

Tribunal did not adequately consider the danger the applicant would face if she went back to Indonesia

1. At pp.2 – 3 of its decision, the Tribunal set out the tests which it had to apply when determining whether the applicant satisfied the criteria for a protection visa.  Having set out the tests, the Tribunal then set out the information which the applicant included in her protection visa application and considered that information in the context of the applicant’s failure to attend the listed Tribunal hearing. That is to say, the Tribunal considered the tests and it considered the information it had and it reached a conclusion which was open to it in the circumstances. That conclusion was that the information before it did not satisfy it that the applicant met the criteria for a protection visa. I find that the third asserted ground of review is not made out.

Generally

1. In large part, the application in these proceedings is misconceived because it does not appreciate the basis upon which the Tribunal reached its conclusion. This was a case where there was so little information before the Tribunal that there was never any real prospect that the applicant would be successful before it.

2. The applicant was advised by the Tribunal in its letter of 4 June 2007 that it could not make a decision in her favour on the information then before it. By failing to attend the Tribunal hearing, the applicant denied herself the opportunity to put before the Tribunal, and denied the Tribunal the opportunity to receive, evidence and arguments which might have led it to the state of satisfaction which would have led it to conclude that the applicant was entitled to a protection visa.

Conclusion

1. In all these circumstances, the applicant has failed to demonstrate that the Tribunal’s decision is affected by jurisdictional error. Consequently, her application to this Court 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: 8 April 2008