SZMIZ v Minister for Immigration - [2007] FMCA 1937

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMIZ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1937

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

Migration Act1958 (Cth) ss. 65, 424A, 425, 425A, 426A, 430, 441A

Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195

Applicant:

SZMIZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 775 of 2006

Judgment of:

Barnes FM

Hearing dates:

23 October 2007 & 5 November 2007

Delivered at:

Sydney

Delivered on:

5 November 2007

REPRESENTATION

The Applicant

In person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The title of the first respondent be amended to read “Minister for Immigration & Citizenship”.
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 775 of 06

SZMIZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 16 February 2006, affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in August 2005. In September 2005 he applied for a protection visa. In a statement accompanying his protection visa application, he claimed to fear persecution on the basis of his membership and activities with Falun Gong. He claimed to have become a Falun Gong member in 1996, and a key member in 2000 after Falun Gong was banned by the Chinese authorities. He claimed that he had promoted Falun Gong through contacts with clients and through friends and relatives; that in 2001 he had received a formal warning letter from his employer in relation to a suspicion that he had promoted Falun Gong to his clients; and that in 2005 he had been detained, questioned and tortured by officials from the Security Bureau and the police because they found evidence of his promoting Falun Gong and membership of Falun Gong; and that after he was released for medical treatment he obtained his visa to come to Australia.
The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal. In his review application he provided a residential address. He did not nominate an authorised recipient. In response to the question about where he wanted the Tribunal to send correspondence about his application, he provided a separate mailing address. He did not provide any telephone or other contact details. Nor did he make any further written claims to the Tribunal.
Relevantly, the Tribunal wrote to the applicant by letter dated 22 December 2005, advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter invited the applicant to a hearing on Wednesday, 25 January 2006 at a time and place specified, and advised that if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice. The letter was addressed to the applicant at the mailing address provided in the review application.
In its reasons for decision the Tribunal recorded that it had sent such a letter to the applicant; that no response had been received and that the letter had not been returned to sender. It also observed that it had not been possible to contact the applicant by fax or telephone as he had not provided such contact details. Nor had he authorised any person to act for him in relation to the application.
The Tribunal recorded that the applicant did not attend the scheduled Tribunal hearing. 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.
The Tribunal set out the claims made by the applicant in connection with his protection visa application and its understanding that essentially the claim was that the applicant feared persecution for Falun Gong activities. It accepted that there was sometimes persecution of Falun Gong practitioners by the authorities of the People’s Republic of China, including persecution in relation to practise at home where that was brought to the attention of police or Party officials. However, the Tribunal found that on the information before it it could not be satisfied that the applicant was a Falun Gong practitioner and that he was persecuted and/or feared persecution in China for such activities and left China for that reason. On that basis it found that it could not be satisfied that he was, or is, a Falun Gong member, or key member as claimed, or that he was detained, interrogated and ill treated as claimed because of his Falun Gong activities; that he received the warning letter as claimed or that he would be persecuted if he returned to China based on his Falun Gong activities.
The Tribunal gave a number of reasons for its lack of satisfaction that the applicant had a well founded fear of persecution within the meaning of the Refugees’ Convention. It found that the applicant’s claims were essentially untested assertions that were unclear and lacking in detail in important respects. It had regard to the fact that despite his claims to have been a member since 1996, a key member since 2000 and about detention and torture in 2005, there was little detail of the applicant’s claimed practice of and involvement with Falun Gong in China. There was said to be no detail as to where, when and how often he practised and with whom; as to activities he claimed to have been involved in and what he did to promote Falun Gong; or as to why he described himself as a key member.
The Tribunal also had regard to the absence of any detail about any practice or involvement with Falun Gong activities in Australia and as to the persecution that the applicant alleged had occurred and how he managed to avoid further persecution prior to his departure for Australia.
The Tribunal continued:
In the Tribunal’s view it would be expected that further details about the applicant’s claims, together with some clarification of the matters referred to above, would be forthcoming from the applicant, either in writing in the applications or orally at a hearing, if his claims were genuine and could be substantiated. As at the date of the decision there is no persuasive evidence before the Tribunal that enables it to be satisfied that there was a real chance that the applicant will face serious harm for the purposes of the Convention, either now or in the reasonably foreseeable future, if he returns to his country.
The Tribunal concluded that for those reasons it was not satisfied on the evidence before it that the applicant had a well founded fear of persecution within the meaning of the Refugees Convention.
The applicant sought review of the Tribunal decision by application filed in this Court on 15 March 2006. He filed an amended application on 4 July 2006, which essentially raises an issue of compliance with s.424A of the Migration Act 1958 (Cth), to which I will return.
When the hearing in this Court started on 23 October 2007 the applicant, who had had the respondent’s written submissions translated for him before the hearing, claimed that he had not received any mail. He clarified that he claimed that he had not received the hearing invitation from the Tribunal. As this issue was raised for the first time in the hearing, the hearing was adjourned to enable the first respondent to file affidavit evidence to address it. The first respondent filed and relied on an affidavit of Marina Osmo sworn on 29 October 2007 and filed on 30 October 2007.
While the applicant also indicated on the last occasion the matter was before the Court that the only ground he relied on was in relation to the hearing invitation, the legal representative for the respondent addressed, and I have considered, all of the grounds raised in his application and amended application, in addition to the specific issue of compliance with the procedures in the Migration Act in relation to the invitation to the Tribunal hearing. However for the reasons that I am about to give, no jurisdictional error is established on the material before the Court.
First, in relation to the specific issue of compliance with the Tribunal’s obligations to invite the applicant to the hearing, I am satisfied on the basis of the affidavit evidence of Marina Osmo, the Acting District Registrar of the Tribunal, in relation to the Tribunal’s usual procedure in respect of sending hearing invitation letters (described as s.425 letters) to applicants. Under s.425 the Tribunal is obliged to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. On the basis of the material before the Court there is nothing to indicate that the Tribunal in this case failed to comply with its procedural obligation or with s.425. In particular, the letter of 22 December 2005 was sent by pre-paid post to the applicant on either 22 or 23 December 2005 in accordance with the Tribunal’s procedures. Thus, as required under s.425A of the Act it was sent by one of the methods specified in s.441A, (pre-paid post to the applicant’s address for correspondence provided in the review application). The letter gave the applicant the requisite period of notice - see s.425A(3) and regulation 4.35D, and contained a statement of the effect of s.426A, indicating, as set out above, that if the applicant did not appear and the hearing was not postponed, the Tribunal may make a decision on the review without taking any further action to allow or enable him appear before it.
Hence it was open to the Tribunal under s.426A to make a decision on the review without taking any further action to enable the applicant to appear before it. I note in that respect that even if an applicant does not receive an invitation letter, provided the Tribunal meets its obligations under the Migration Act no jurisdictional error is established. See SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110, and Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].
I also note that, as the Tribunal stated in its decision, it considered the possibility that there was any other way in which it could contact the applicant when he failed to respond to the hearing invitation and failed to attend the scheduled hearing, but that he had not provided other contact details or nominated an authorised recipient. No jurisdictional error is established on that basis.
The ground relied on in the amended application is, in essence, a contention that there has been a failure to comply with s.424A(1) of the Migration Act. Section 424A(1) of the Migration Act, as it stood at the relevant time, required the Tribunal to give to the applicant the opportunity to comment on particulars of the information that would be the reason or part of the reason for affirming the decision under review. The amended application contends in particulars that the Tribunal was obliged to put to the applicant information contained in the first respondent’s file and that given to the Tribunal by the applicant. This appears to be a contention that particulars of the information given by the applicant to the Department in connection with the protection visa application had to be given by the Tribunal to him for comment in accordance with s.424A(1).
However I am satisfied that as submitted for the first respondent, there was no failure by the Tribunal to comply with s.424A of the Act in this instance. In this case the Tribunal determined that the applicant had, in effect, provided insufficient evidence to enable it to be satisfied of his claims. It found that the applicant’s claims were essentially untested assertions and were unclear and lacking in detail in important respects. On that basis it was unable to be satisfied that the applicant had a well founded fear of persecution within the meaning of the Refugees’ Convention.
As Allsop J stated in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29]:
The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the applicant had a well founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply, 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.
Also see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].
The Tribunal was not obliged to put its provisional reasoning to the applicant for comment, and no failure to comply with s.424A is established on the basis contended for by the applicant. Rather, the absence of supporting evidence was in fact the basis for the Tribunal’s lack of satisfaction as contended for the first respondent. As the Full Court of the Federal Court stated in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 at [15] – [16]:
Section 65 of the Migration Act requires the Tribunal to refuse to grant a visa if it is not affirmatively satisfied that the criteria for the visa have been satisfied.
I also considered the grounds in the application, albeit that they are generally expressed and not particularised. For the reasons given above, it has not been established that the Tribunal failed to observe the Migration Act properly in making the decision in circumstances where it was not affirmatively satisfied that the criteria for the visa sought had been satisfied and where it has not been established that there was any failure to observe any of the procedural requirements of the Act.
The third ground is that the Tribunal did not provide the applicant with adequate particulars of the independent information. While the Tribunal referred generally to its acceptance that there was sometimes persecution of Falun Gong practitioners by PLC authorities, as indicated above the reason for its decision was not the independent information but rather its lack of satisfaction on the basis of the lack of detail and the untested nature of the applicant’s claims. Moreover, independent country information which might be said to lie behind the nature of the Tribunal’s general statements in relation to the situation of Falun Gong practitioners in China, is outside the operation of s.424A(1) by virtue of the exception in s.424A(3)(a).
The fourth ground in the application, which contends that there was a failure to comply with s.424A, has been considered and has not been established.
There is also a general contention that the Tribunal failed to consider the applicant’s claims. This is not supported by the material before the Court. The only claims made by the applicant are those contained in the statement made in connection with the protection visa application. It is clear from the Tribunal’s reasons for decision that the Tribunal considered it was not able to be satisfied in relation to the veracity of such claims.
It was also contended that the Tribunal did not provide any evidence to support its decision. It is not entirely clear what is intended by this ground. Insofar as it might be taken to be a contention of a failure to comply with s.430 of the Act, there is nothing in the material before the Court to suggest any failure to comply with s.430 as the Tribunal did prepare and provide a written statement in relation to its reasons for decision in accordance with s.430. Insofar as it is intended to be a contention that there was no evidence to support the decision, as indicated above the lack of supporting evidence from the applicant was in fact the basis for the Tribunal’s lack of satisfaction and its affirmation of the decision of the delegate was consistent with its obligations under s.65 of the Act.
Insofar as it is intended to be an assertion that the Tribunal was under an obligation to, as it were, disprove the applicant’s claims to be a protection visa applicant, or to be entitled to a protection visa, it is well established, (see in particular Abebe v Commonwealth (1999) 197 CLR 510), that it is for an applicant to advance whatever evidence or argument he wishes to advance in support of his contention that he has a well founded fear of persecution for a Convention reason. The Tribunal must then decide, as it did in this case, whether that claim is made out. No jurisdictional error is established on any of the bases contended for by the applicant.
As no jurisdictional error has been established, the application must be dismissed. The first respondent also seeks that the title of the first respondent be amended. It is appropriate to make such an order. Before I do so I will hear submissions in relation to costs.
The applicant has been unsuccessful. It is appropriate that the unsuccessful applicant meet the costs of the first respondent. I note the necessity for an adjournment. The amount sought ($3,200) is at the lower end of the scale of amounts sought in matters of this nature. Such an amount is appropriate.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM.

Associate:

Date: