SZLPU v Minister for Immigration
[2008] FMCA 890
•23 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 890 |
| MIGRATION – Review of RRT decision – where applicant did not attend hearing – where Tribunal failed to reach state of satisfaction. |
| SZGZQ v Minister for Immigration [2007] FCA 62 NAST v Ministerfor Immigration [2004] FCA 86 |
| Applicant: | SZLPU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3495 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 June 2008 |
| Date of Last Submission: | 23 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 June 2008 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the first respondent's costs assessed in the sum of $2,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3495 of 2007
| SZLPU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. She arrived in Australia on 28 April 2007. On 10 May 2007 she applied to the Department of Immigration & Citizenship for a protection (class XA) visa. On 23 July 2007, a delegate of the Minister refused to grant a protection visa. On 6 August 2007, the applicant applied to the Refugee Review Tribunal to review the decision of the delegate. On 28 August 2007, the Tribunal wrote to the applicant advising her that it had considered the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing on 28 September 2007.
On 20 September the applicant faxed a response to hearing invitation indicating that she did not wish to come to the hearing. The original response was received by the Department on 25 September 2007. In light of her response, the Tribunal proceeded to consider the application on the basis of the information then before it. On 24 September 2007, the Tribunal determined to affirm the decision which it handed down on 16 October 2007. It has not been suggested that the applicant attempted to attend a hearing on 28 September 2007 and was denied that opportunity. She appears to have acted in accordance with her decision not to attend.
The grounds upon which the applicant claimed that she was a person to whom Australia owed protection obligations are found in a statement attached to her protection visa application form at [CB27]. The statement is repeated in the Tribunal's grounds and reasons at [CB71]. The applicant took up the practice of Falun Gong for medical reasons in approximately 1998. She says that after the crackdown, she was placed in detention for approximately three months where she was beaten and ill-treated. She continued to practice Falun Gong after she was released. The police discovered this and told her employer to dismiss her. She lost her job and heard that the police wished to arrest her. She said that her friends helped her to change her name so that she could apply for a passport and have an opportunity to come to Australia.
The Tribunal's decision was based upon its lack of satisfaction [CB73]:
"The applicant did not wish to attend the hearing and this leaves the Tribunal with claims which are untested and stated in the most general terms. The Tribunal was unable to explore with the applicant when she became a Falun Gong practitioner, where, when and with whom she practised the exercises, whether any members of her family are Falun Gong practitioners, the circumstances of her detention, where, when and with whom she practised the exercises following her release from detention, the details of the assistance she gave other Falun Gong practitioners, when and why the police wanted to arrest her and how she knew this, the circumstances of her living in hiding in Sichuan, details of when, how and why she changed her name and residential address, details of how she obtained her passport, details of how she left China and what is likely to happen if she were to return to live in China in the reasonably foreseeable future.
… In these circumstances the Tribunal is unable to be satisfied that the applicant has a well‑founded fear of persecution for reason of religion, membership of a political/social group or any other Convention based reason."
In her application to this court, filed on 12 November 2007, the applicant has four grounds for seeking relief. She firstly refers to the failure of the Tribunal to recognise the principle of non-refoulement. This principle is the rock upon which the Refugee Convention stands. The whole purpose of considering whether people have a claim upon the protection obligations of a signatory country is that such a person should not be returned. I am unable to conceive of a successful argument that the Tribunal is unaware of this principle.
The second ground is rather difficult to comprehend:
“The Tribunal and the primary decision maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant's claim of refugee status and the Tribunal failed to consider whether any other motives could ground the finding of lake [sic] of bona fides.”
It would have been of great assistance if the friend of the applicant who wrote this document could have been with her and explained it to the court. As things stand, I am unable to make any serious guess at the passages in the Tribunal decision to which this ground could refer.
The third matter suggests that the Tribunal erred in relation to the applicant's credit. It is as grammatically and linguistically incomprehensible as the second ground. Suffice to say, there is no attack on the applicant’s credit made in the Tribunal decision.
Finally, the Tribunal is alleged to have erred in its construction of the Migration Regulations Part A. Without particulars of the error, or of the regulations, I am unable to make any findings in relation to this ground.
The Tribunal's reason for affirming the decision of the delegate was a simple lack of satisfaction. As Greenwood J said in SZGZQ v Minister for Immigration [2007] FCA 62 at [13]-[14]:
"It is clear from a consideration of the facts and the approach adopted by the Tribunal in reaching its conclusions on those facts that the Tribunal has approached the exercise of the review on the footing that the legislation (s.65(1)) requires the Tribunal to refuse the Appellant's application for a protection visa in circumstances where the Tribunal is not affirmatively satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa have been established. The Tribunal has correctly approached its task by determining that if it is unable to be satisfied of those matters, the Tribunal must ‘refuse to grant the visa’ (s.65(1)(b)).
The approach adopted by the Tribunal is entirely consistent with the observations of their Honours in SJSB v The Minister [2004] SCASC 255 at [15] per Black CJ, Sumberg and Bennett JJ and Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.”
In NAST v Ministerfor Immigration [2004] FCA 86 at [6] and [7] Allsop J explained his role to an appellant:
“My task in an application such as this is to ensure that the Tribunal has approached the matter lawfully so that it can be assessed one way or the other whether the claims of the applicant have been lawfully and properly considered. What it is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either it is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicant had a well-founded fear of persecution under the Refugee Convention
Pursuant to the statute, if the Tribunal is satisfied of all relevant things it must grant a visa. Also, if the Tribunal is not satisfied of all relevant things, it must not grant a visa. Here, the Tribunal had the claims of the applicant in writing before it. It gave notice of a hearing to the applicant because the Tribunal said that it was not satisfied on the papers alone of the version of events given by the applicant.”
His Honour goes on to explain why in those circumstances the Tribunal was unable to reach the state of satisfaction required.
There is really no difference between that case and the one presently before me. The applicant was given an opportunity to establish that she was indeed a person to whom Australia owned protection obligations. But she did not attend the hearing at which that could have been done. It followed that the Tribunal did not reach the necessary state of satisfaction and therefore the visa was refused, as was required. There is no jurisdictional error in the decision that I can see and I must therefore dismiss the application, which I do. I order that the applicant pay the first respondent’s costs which I assess in the sum of $2,250.00.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 1 July 2008
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