SZMAO v Minister for Immigration - [2008] FMCA 993

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMAO v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 993

MIGRATION – Review of decision of RRT – where applicant did not attend hearing – whether Tribunal reached required state of satisfaction.

Migration Act 1958 (Cth), ss.65(1), 426A

SZGZQ v Minister for Immigration [2007] FCA 62

Applicant:

SZMAO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 595 of 2008

Judgment of:

Raphael FM

Hearing date:

9 July 2008

Date of Last Submission:

9 July 2008

Delivered at:

Sydney

Delivered on:

9 July 2008

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 595 of 2008

SZMAO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 21 July 2007 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 1 August 2007. In the form completed by her she gave an address of Elizabeth Street, Sydney as the address to which documents should be sent. On 24 September 2007 the Department of Immigration & Citizenship wrote to the applicant inviting her to an interview to discuss her application on 8 October 2007. The applicant did not attend this interview. On 12 October 2007 the delegate refused to grant her a protection visa. On 13 November 2007 the applicant applied for a review of the delegate’s decision from the Refugee Review Tribunal. She was invited to a hearing by the Tribunal sending a letter to the same address that she had given as her address for correspondence. The letter arrived because the applicant provided a response to the hearing invitation [CB 75] advising the Tribunal that she intended to come. However, she did not do so. On 25 January the Tribunal determined to affirm the decision under review and that decision was handed down on 14 February 2008.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations are found in a short statement at [CB 27-28]. The applicant claimed to be a Falun Gong practitioner who had been arrested because of her adherence to this sect. She claimed that she was detained for six months in a Falun Gong re-education centre in 2003. Whilst there she was tortured by policemen and forced to declare separation from Falun Gong. She lost her job upon her release. She could not find a new job. Eventually she spent 150,000 RMB in paying a Government officer to issue her a passport and applied for a visa to Australia.
The decision of the delegate is found at [CB 44-53]. At [CB 51] the delegate notes that:
“If the applicant had attended the hearing she was invited to, she would have been given an opportunity to provide substantiating details regarding her claims and address any inconsistencies.”
The delegate also noted that the applicant’s passport was issued in 2003 but she did not leave China until 2007. The delegate felt that had the applicant held a genuine fear of persecution she would have made an attempt to leave the country earlier. The delegate also noted that the applicant had not made any claims to have been involved in Falun Gong in Australia and as she had not become known as an active practitioner of Falun Gong in this country, she was unlikely to suffer any problems should she return to China.
When the matter came before the Tribunal it had before it no further information than that which was before the delegate. The applicant did not attend the hearing on 22 January to which she had been invited on 13 November. In the circumstances it is not surprising that the Tribunal concluded:
“The applicant’s protection visa application is lacking in detail and substance. Further, the Tribunal has not had a chance to test the truthfulness about the applicant’s claims. Thus, on the evidence before it, the Tribunal is not satisfied that the applicant has been a Falun Gong practitioner in China or suffered any of the consequences as claimed by her in her protection visa application statement.”
On that basis the Tribunal found that the applicant did not have a well-founded fear of persecution within the meaning of the Convention.
The applicant applied to this court for review of the decision of the Tribunal on 12 March 2008. The grounds of application were three-fold. Firstly, there was no evidence or other material to justify the making of the decision. The decision was made on the basis that the Tribunal did not reach the statutory state of satisfaction that s.65(1) of the Migration Act 1958 (the “Act”) required of it. As Greenwood J said in SZGZQ v Minister for Immigration [2007] FCA 62 at [13-14]:
“[13] 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)).
[14] The approach adopted by the Tribunal is entirely consistent with the observations of their Honours in SJSB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 255 at [15], per Ryan, Jacobson and Lander JJ; Minister for Immigration & Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at [17], per Black CJ, Sundberg and Bennett JJ and Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.”
It was the lack of evidence provided by the applicant that required the Tribunal to come to the decision which it did, and not evidence the Tribunal had that negated some unfounded presumption that she was a refugee.
The second matter raised by the applicant was:
“The making of a decision without considering the real situation about Falun Gong in China.”
The Tribunal was not bound to consider the situation of Falun Gong in China until such time as it was satisfied that the applicant was a Falun Gong practitioner. Until such time any consideration of that situation would have been irrelevant. The Tribunal was never able to come to the conclusion that the applicant was a Falun Gong practitioner because she did not provide it with sufficient evidence to satisfy it of that fact.
The final matter raised by the applicant was that the Tribunal had not taken or adequately taken into consideration her claims. The Tribunal’s decision sets out her claims and explains why they did not allow it to be satisfied of their truth. In circumstances where the applicant did not attend there seems to me to be little more that the Tribunal could have done.
At the hearing today the applicant told me that she did not attend the Tribunal because she had hurt her lower back. However, she appears to have made no attempt to tell the Tribunal this and I note that the decision was not handed down for some three weeks after the scheduled time for the hearing. The normal practice of the Tribunal in circumstances such as this, so far as I can gather from my experience in these matters, is that if she had told the Tribunal of her illness and satisfied it of its genuineness, she would have been given a further opportunity. Interestingly, the applicant was one of the few people to whom an interview was offered by the department itself but she did not attend that either. I am satisfied that in the circumstances the Tribunal acted correctly when it proceeded to deal with the matter under the provisions of s.426A of the Act.
I also note that at the hearing today the applicant wished me to consider a number of pages written in the Chinese script. I asked the interpreter to read through this document whilst I left the Bench to see whether it referred in any way to the actions of the Tribunal as opposed to being a submission in relation to the applicant’s situation. I was advised by the interpreter that the document related entirely to the practice of Falun Gong which, of course, is a matter with which I am not permitted to deal. In these circumstances the application must be dismissed. The applicant shall pay the first respondent’s costs which I assess in the sum of $2,500.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: