SZMZB v Minister for Immigration
[2009] FMCA 626
•24 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMZB v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 626 |
| MIGRATION – Review of decision of RRT – where applicant did not appear. |
| Migration Act 1958, ss.36, 65, 424A, 426A |
| SZEZI v Minister for Immigration [2005] FCA 1195 SZHSQ v Minister for Immigration [2006] FCA 1295 |
| Applicant: | SZMZB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3100 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 June 2009 |
| Date of Last Submission: | 24 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2009 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3100 of 2008
| SZMZB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Chinese citizen who arrived in Australia on 25 February 2008. On 8 April 2008 he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 7 July 2008, having invited the applicant to attend an interview, which invitation was not accepted, a delegate of the Minister refused to grant a protection visa. On 7 August 2008, the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal invited the applicant to attend a hearing on 23 September 2008. The applicant did not respond to that application and did not appear. The invitation to the applicant to attend the hearing was sent to the applicant by registered post at an address that he always appears to have lived at and, indeed, is the address he gave to this court when filing his application. On 30 September 2008 the Tribunal determined to affirm the decision under review.
The ground upon which the applicant claimed that he was a person to whom Australia owed protection obligations was that he was a member of the Minsheng Christian Group which has its origin in South Korea. He claimed in his visa application that the Minsheng Group had not been officially acknowledged by the Chinese Government and was an unlawful underground religious group. The applicant said that he left China in order to avoid upcoming persecution on Minsheng Christians by the Chinese government. He believed that the Chinese government may have known about his involvement with the Minsheng Christian Group and that he would be subject to criminal detention or imprisonment should he return to that country. There is nothing in the applicant's statement which indicates that he has already been the subject of any persecution, merely that he fears that he might become the subject of such should he return.
The Tribunal wrote to the applicant on 22 August 2008 advising him that it had considered the material before it but was unable to make a favourable decision upon that information alone. It then invited him to a hearing. When the applicant did not attend the hearing the Tribunal took the usual steps of ensuring itself that a proper invitation had been sent, and upon being satisfied invoked the provisions of s.426A of the Migration Act 1958 (the “Act”) to determine the application without further recourse to the applicant.
The Tribunal came to the conclusion that the applicant's claim lacked detail about his involvement with the group, in particular as to when, where, and how often he met with members of the group and that he gave no details of the missionary work which he claimed that he had undertaken.
The Tribunal concluded that, having told the applicant that it was not satisfied on the present information that it had, that he was a person to whom Australia owed protection obligations, it was incumbent upon the applicant to attend the hearing or to take some other steps that would satisfy the Tribunal that he was such a person. It is clear from the provisions of ss.36 and 65 of the Act that a person empowered to grant such a visa must be satisfied that the criteria for that visa prescribed by the Act have been fulfilled. The Tribunal was not satisfied in this case because of the lack of information provided by the applicant and it said so. In taking this step the Tribunal acted in accordance with its statutory responsibilities and I am unable to see that it fell into any jurisdictional error in making that determination.
The applicant filed his application with this court on 26 November 2008. This was a few days out of time and I grant the applicant leave to extend the time so that the application which he did make to the court can be rendered valid. In his application, he said that the Tribunal failed to comply with the provisions of s.424A of the Act by not giving the applicant particulars of any information that the Tribunal considered would be the reason or part of the reason for upholding the decision under review. I assume that in this case, what the applicant was trying to say was that he had not received some form of warning that the Tribunal was minded to make a decision contrary to his interests, because there was no information which the Tribunal used that would have come within the provisions of s.424A when it made its decision. The decision was based, clearly, upon the lack of evidence that would allow the Tribunal to come to the state of satisfaction that it was required to come to.
The Tribunal is not bound to provide the applicant with advance warning of its proposed conclusions. As Allsop J said in SZEZI v Minister for Immigration [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 appellant 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. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.”
It is correct to say that Rares J in SZHSQ v Minister for Immigration [2006] FCA 1295, shed some doubt on the views expressed by Allsop J above, but his Honour did conclude in the end at [45] that the Tribunal was not obliged to give a notice under s.424(1).
I am content, indeed bound, to follow the views expressed by those members of the Federal Court and to conclude that there was no breach of s.424A in this case. In those circumstances the application must be dismissed and the applicant must pay the first respondent's costs which I assess in the sum of $3,400.00.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 2 July 2009
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