SZMQH v Minister for Immigration

[2009] FMCA 293

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMQH v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 293

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

Migration Act 1958 (Cth), ss.425, 426A, 441A

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492

Applicant: SZMQH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:  REFUGEE REVIEW TRIBUNAL

File Number: SYG 2091 of 2008

Judgment of: Barnes FM

Hearing date: 30 March 2009

Delivered at: Sydney

Delivered on: 30 March 2009

REPRESENTATION

Applicant: In Person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application be dismissed.

2. That the applicant pay the costs of the first respondent fixed in the sum of $2,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2091 of 2008

SZMQH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for a view of a decision of the Refugee Review Tribunal made on 30 October 2007 affirming the decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of the People’s Republic of China, arrived in Australia in March 2007 and applied for a protection visa in May 2007.  In a statement attached to his protection visa application he claimed to fear persecution as a Falun Gong practitioner in the People’s Republic of China.  He claimed that in 2004 he had been questioned by local security people about practising Falun Gong and warned to stop, but that he continued to practise.  He also claimed that in November 2006 he was formally warned and told that he would lose his job and that he would be arrested if he continued to practise Falun Gong.  He claimed that he had to bribe government officials in order to obtain his passport to travel to Australia.

3. The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal on 30 July 2007. In the review application the applicant provided one address both as his residential address and as his address for correspondence. He did not indicate that he had an advisor authorised to act for him in relation to his application. 

4. By letter dated 6 August 2007 the Tribunal wrote to the applicant advising that it had considered the material before it, but was unable to make a favourable decision on that information alone.  It invited him to attend a Tribunal hearing on 20 September 2007 at a time and place specified. It advised the applicant that the Tribunal may make a decision without further notice if he failed to attend the scheduled hearing. 

5. In its reasons for decision the Tribunal summarised the applicant’s claims made in connection with his protection visa application. It noted that it had received no reply to its invitation to a hearing and that the applicant did not appear on the day, time and place at which the hearing was scheduled. Nor did he contact the Tribunal to seek a postponement or give any reasons why he could not attend the scheduled hearing. In those circumstances pursuant to s.426A of the Migration Act 1958 (Cth) the Tribunal decided to make a decision on the review without taking any further action to enable the applicant to appear before it.

6. The Tribunal summarised the applicant’s claims that he was a Falun Gong practitioner, that he had introduced Falun Gong to other persons in China, that he had been questioned and warned, that the police had checked his home and that his telephone had been monitored.  However it found that he had given only a brief account of his claimed involvement with Falun Gong in China and only a cursory account of his claim that he was told he would lose his job and face arrest if he continued to practise Falun Gong. He had provided no details regarding any current practice of Falun Gong or as to whether he was involved in Falun Gong activities generally and had provided no further information with his application for review and no new material to the Tribunal.  He failed to attend the hearing and did not contact the Tribunal to seek a postponement.

7. The Tribunal found that given the lack of details in the applicant’s claims and the lack of opportunity to explore details of those claims or their veracity, it was not satisfied that the applicant had been or was a practitioner of Falun Gong or that he was involved in Falun Gong activities more generally, including introducing other persons to Falun Gong.  Nor was it satisfied that he was or is a person of interest to the authorities in China.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he returned to China.  It affirmed the decision under review.

8. The applicant sought review of the Tribunal decision by application filed in this Court on 13 August 2008. The application contains one generally expressed ground. The applicant did not file written submissions and he did not elaborate on his grounds for review in oral submissions. He asserts in essence that the Tribunal was wrong in finding that it was not satisfied that he was a Falun Gong practitioner or involved in Falun Gong activities or a person of interest to the authorities. He states in the application that he was a Falun Gong practitioner and introduced Falun Gong to others, that he was questioned and warned and that the police had checked his home and he would be monitored. He claimed that the Tribunal ignored his claims.

9. In so far as the applicant reiterates his claims to be a Falun Gong practitioner, he seeks merits review.  Merits review is not available in this Court.  It cannot be said that the Tribunal ignored his claims.  Rather the Tribunal set out his claims and addressed them, but in light of the lack of details and the lack of opportunity to explore any detail or the veracity of those claims, the Tribunal was not satisfied that the applicant was a Falun Gong practitioner or involved in Falun Gong activities as he claimed.  This ground is not made out.

10. The task of the Tribunal is to consider whether it is satisfied that the requirements for the grant of a visa are met.  In the absence of a positive finding of satisfaction an application must be rejected (see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208, NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). In this case the applicant did not attend the hearing and hence it can be said, as was said in NAVX (at [5]), that the Tribunal’s rejection of his application was the inevitable consequence of his non-attendance at the hearing. 

11. The solicitor for the first respondent addressed the issue of whether the Tribunal’s invitation to the hearing revealed any failure to comply with the procedural obligations of the Migration Act 1958 (Cth) and Regulations.

12. The first respondent filed and relied on an affidavit sworn on 10 September 2008 by Catherine Elizabeth Whittemore, the solicitor for the first respondent, annexing a copy of the Tribunal’s registered post record for 6 August 2007. That record indicates that correspondence was sent to the applicant via registered post on 6 August 2007, bearing a registered post number which is the same as the registered post number appearing on the copy of the hearing invitation letter of that date in the court book. 

13. Hence on the basis of the material before me, I am satisfied that the Tribunal letter of 6 August 2007 contained the requisite invitation to the applicant to appear before it to give evidence as required under s.425 of the Act, provided notice of the specified day, time and place of the hearing and in so doing provided a period of time which was at least the prescribed period under Regulation 4.35D of the Migration Regulations. The letter also contained a statement to the effect required in s.426A, in particular setting out the options available to the Tribunal if the applicant failed to appear. I am satisfied that the invitation was given to the applicant by one of the means specified in s.441A of the Act, being dispatched by pre-paid post within three days of the date of the letter under s.441A(4). On the evidence before the Court that letter was sent to the last nominated address for service provided by the applicant, being in fact the only address provided by the applicant to the Tribunal in the course of the review. Accordingly the invitation complied with the statutory requirements in the Migration Act and the Regulations.

14. The Tribunal received no response to that invitation. The applicant failed to attend the hearing and provided no explanation. The Tribunal considered its alternatives pursuant to s.426A of the Act. In those circumstances it was open to the Tribunal to make a decision on the review without taking further action to allow or enable the applicant to appear before it. It was not in those circumstances obliged to make further inquires, to investigate the applicant’s claims or to accept the applicant’s claims at face value.

15. As submitted for the first respondent, by choosing not to attend the hearing the applicant is to be taken to have assumed the risk that any omissions, inconsistencies or unsatisfactory features of his documents or claims would be noted by the Tribunal without him having an opportunity to expand upon or clarify them (see S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492 at [25]). As indicated, on the limited evidence before it, while the Tribunal considered the applicant’s written claims, it was unable to be satisfied of their veracity and unable to be satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

16. As no jurisdictional error has been established the application must be dismissed.

17. The applicant has been unsuccessful.  The first respondent seeks costs in the sum of $2,800.  Nothing in the circumstances before the Court warrants a departure from the normal rule that the unsuccessful applicant should meet the costs of the first respondent. The applicant raised a question of an inability to pay such costs, but that is not in this instance a reason for departing from the normal principle, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  6 April 2009