SZLMF & Anor v Minister for Immigration
[2008] FMCA 1020
•10 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLMF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1020 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), ss.425A, 426A, 441A |
| SZCIA v Minister for Immigration & Citizenship [2006] FCA 238 SZEZI v Minister for Immigration & Citizenship [2005] FCA 1195 SZIDH v Minister for Immigration & Citizenship [2008] FCA 262 SZIGQ & Anor v Minister for Immigration & Citizenship [2007] FCA 328 SZKSC v Minister for Immigration & Citizenship [2008] FCA 210 |
| First Applicant: | SZLMF |
| Second Applicant: | SZLMG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3181 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 10 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2008 |
REPRESENTATION
| Counsel for the Applicants: | The applicants appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Ms L. Buchanan (solicitor) |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 15 October 2007 is dismissed.
The applicants are to pay the first respondent's costs and disbursements of and incidental to the application fixed in the sum of $2500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3181 of 2007
| SZLMF |
First Applicant
| SZLMG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Settled from ex tempore reasons)
The first applicant is a citizen of the People's Republic of China who was born in 1963 and states that he speaks Cantonese. The second applicant, his wife, is also a citizen of the People's Republic of China and was born in 1962. The first applicant claims that he is Christian and that prior to leaving China he was an engineering manager. The second applicant states that she is a farmer.
In a statement attached to the applicants’ original visa application, the first applicant states that he has been a member of an underground church since early 2005 and that they gather on Saturdays in his village. He says that the church has about 30 members and that the priest was a Mr Wong who came from Hong Kong. The first applicant was a key member of the church and Mr Wong trusted him and often asked him to assist new members. In October 2006 during a meeting some police came and took them all to the police station. The applicant was asked to write a report on who the leader of the church was and to give details about their activities. He was told that the church was not allowed in China.
He states, however, that he believes there is nothing wrong with his religion and so he organised with the other members to meet on the Saturday evening at another location. On 6 January 2007 the police broke into his home where a religious gathering was being held. They said they believed the first applicant was the leader of the underground church and that they would put him in prison and sentence him for at least a year. On the way to the police station he claims that he managed to escape. He could not live at his home with his wife, so he moved to a friend's home in a nearby village. During that time he applied for a visa to Australia and the visa was granted in February 2007.
The applicants arrived in Australia on 26 March 2007 and applied to the Department of Immigration for a protection visa on 8 May 2007. A delegate of the Minister refused to grant the visa on 31 May 2007 and the applicants applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate's decision. The Tribunal affirmed the delegate's decision on 30 August 2007 and it is that decision (reference 071530262) that is the subject of judicial review in this Court. A Court Book prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
The application for judicial review filed on 15 October 2007 contains two grounds which state:
The Refugee Review Tribunal made a jurisdictional error in determining my application for a protection visa.
The Tribunal failed to consider my review application fairly.
Those grounds have not been particularised and there are no submissions in support.
The applicants were granted leave to file an amended application by 21 January 2008 but nothing has been filed. Similarly, they were ordered to file written submissions 14 days prior to hearing, but again nothing has been filed.
The application to the Tribunal was filed without any attachments or supporting evidence. The applicants gave a residential address in Auburn, New South Wales as the address for receipt of all correspondence. The applicants did not list an agent, nor did they nominate any other person to be the authorised recipient of correspondence. The Tribunal acknowledged receipt of the application by letter dated 27 June 2007 which was forwarded by registered post to the applicants’ residential address. On 16 July 2007 the Tribunal wrote to the applicants at their residential address. It said that it had considered the material before it, but was unable to make a favourable decision on that information alone. The applicants were invited to appear before the Tribunal on 30 August 2007 at 10.00am. The letter contained information on the steps to be taken should they be unable to attend on that day, including how to arrange an alternative date. The letter also contained a leaflet entitled "What Is A Hearing" and a response to hearing invitation which was to be returned by 1 August 2007.
The response to the hearing invitation was not received by the Tribunal and there was no appearance by the applicants at the hearing of 30 August 2007. The applicants did not contact the Tribunal at all. They confirmed this at the Court hearing and said that they had been unable to locate the Tribunal building but made no subsequent attempt to contact the Tribunal to explain their non-appearance. The notification letter sent to the applicants at the address provided in the application for review complied with ss.425A, 426A and 441A(4) of the Migration Act 1958 (Cth) (“the Act”). The Act provides in s.426A(1):
If an applicant is invited under s.425 to appear before a Tribunal and does not appear before the Tribunal on the day on which or at the time and place at which the applicant is scheduled to appear, the Tribunal may make a decision on review without taking any further action to allow or enable the applicant to appear before it.
Consequently, the Tribunal proceeded with its consideration of the application pursuant to s.426A of the Act. The Tribunal made its decision on review without taking any further action to enable the applicants to appear before it.
The Tribunal made the following observations in its findings and reasons:
The first-named applicant has claimed to be a Christian and a member of the underground church in China. He says he has been arrested on two occasions for attending underground church services and that he was believed by the police to be the leader of the underground church. He provided very limited information to support his claims and submits no supporting documentation such as, for example, statements from his fellow practising Christians in Australia or China. He provided no further information to the Tribunal at the time he lodged his review application or after. Since the applicant did not respond to the invitation to come to the hearing at which he might have had the opportunity to demonstrate familiarity with Christianity beliefs and practices, the Tribunal is not satisfied that his claims are credible such that he might be at risk of persecution if he returned to China for the reasons of his involvement with a Christian underground church. The claims before the Tribunal are lacking in essential details. The applicant was invited to appear before the Tribunal but did not do so, leaving his claims unclarified and questions unanswered. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well-founded fear of persecution within the meaning of the Convention if he returns to China in the foreseeable future. (CB 70)
The circumstances of this case are similar to those in SZEZI v Minister for Immigration & Citizenship [2005] FCA 1195. In that case, the applicant did not appear at the Tribunal hearing and Allsop J said at [29]:
The Tribunal having read all of the material and having evaluated its contents and weight, was unable to reach a specific mental state. It was not satisfied that the applicant had a well-founded fear because of the subjectively perceived inadequacies in the information. The reason for the decision was simple and no more than the evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was a reason or part of the reason for the decision. It was the lack of requested further assistance and explanation that was the reason.
The Tribunal, having read all the material and evaluated its contents and weight, was unable to be satisfied that the applicant had a well-founded fear of persecution because of perceived inaccuracies in the information. The reason the Tribunal decided was no more than that. It was the applicant's lack of further assistance and explanation that was the reason for its decision.
In SZCIA v Minister for Immigration & Citizenship [2006] FCA 238 was another matter where the applicant did not attend the Tribunal hearing. The Federal Court emphasised the need to make an evaluation of the Tribunal's reasons. As in SZEZI, this was not the reason or part of the reason for the Tribunal decision. It was referred to by the Tribunal merely as another piece of information which it considered crucial and had intended to discuss with the applicants had they attended the hearing. These parts of SZEZI and SZCIA apply in the present case. This Tribunal did not make a positive finding of fact about the position of the first applicant, but rather rejected his claim because of its inability to be satisfied, on the lack of information before it, that Australia owed protection obligations to him under the Refugees Convention.
I am satisfied that the two grounds of review raised by the applicants are adequately addressed by applying SZEZI and SZCIA. I also believe it unnecessary to further consider the grounds of review as they bear no relevance to the issues addressed by the Tribunal decision. The approach adopted by Allsop J has also recently been followed in SZIDH v Minister for Immigration & Citizenship [2008] FCA 262, by Edmonds J, and in SZKSC v Minister for Immigration & Citizenship [2008] FCA 210 by Flick J. My attention has also been drawn to SZIGQ & Anor v Minister for Immigration & Citizenship [2007] FCA 328 at [4] per Downes J which states:
These grounds cannot succeed. The facts of this case are quite close to the facts of three unanimous decisions of the Full Court of this Court. The members of each court was different. The decisions are NAST v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 208, decision of his Honour Beaumont, Merkel and Hely JJ, the decision of NAVX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 287, being a decision of their Honours French, Emmett and Downes JJ, and the Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 (2005) FCAFC 73, being a decision of their Honours Black CJ, Sundberg and Bennett JJ. In each case the Court emphasised the proposition that the task of the Minister to its delegates and to the Refugee Review Tribunal on appeal pursuant to s.65 of the Migration Act is to consider whether they are satisfied that the requirements of the grant of a visa has been satisfied. It will be difficult to achieve the required degree of satisfaction if the applicant does not provide sufficient information, such as by not attending a hearing. In the absence of the positive finding of satisfaction, a visa application must be rejected. In NAVX at para.5 the Full Court said, "In assessing the adequacy of the Tribunal reasons, 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 his 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 the 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."
In the circumstances, I believe that the appropriate course is to dismiss the application and award costs to the first respondent.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 22 July 2008
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