SZOSD v Minister for Immigration

[2010] FMCA 982

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOSD v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 982

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal properly exercised its discretion pursuant to s.426A of the Act in proceeding to make its decision without taking any further step to allow or enable the Applicant to appear before it, in circumstances where the Applicant failed to attend a hearing before the Tribunal – whether the Tribunal properly considered the Applicant’s claims of a well-founded fear of persecution by authorities in China by reason of his allegedly being a Falun Gong practitioner in China and having suffered persecution in China for that reason.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152

Applicant: SZOSD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2295 of 2010

Judgment of: Emmett FM

Hearing date: 14 December 2010

Date of Last Submission: 9 December 2010

Delivered at: Sydney

Delivered on: 14 December 2010

REPRESENTATION

Applicant appeared in person, assisted by a Mandarin interpreter

Solicitors for the Respondent: G Johnson (DLA Phillips Fox)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2295 of 2010

SZOSD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 September 2010 and handed down on the same day.

2. The applicant claims to be a citizen of the People’s Republic of China (‘China’) and a Falun Gong practitioner (“the Applicant”).

3. The issues in this case are whether the Tribunal properly exercised its discretion pursuant to s.426A of the Act in proceeding to make its decision without taking any further step to allow or enable the Applicant to appear before it, in circumstances where the Applicant failed to attend a hearing before the Tribunal; and, whether the Tribunal properly considered the Applicant’s claims of a well-founded fear of persecution by authorities in China by reason of his allegedly being a Falun Gong practitioner in China and having suffered persecution in China for that reason. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.

4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

1. The Applicant arrived in Australia on 24 February 2010 having departed legally from China on a passport issued in his own name and a Business (short Stay) Visa, subclass 456 visa issued on 23 February 2010 and expiring on 24 May 2010.

2. On 8 April 2010, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

3. On 12 July 2010, the Delegate refused the Applicant’s application for a protection visa.

4. On 12 July 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 28 September 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 22 October 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. The Applicant provided a statement in support of his protection visa application. In that statement he asserted that Falun Gong was outlawed in China in 1999. The Applicant stated that he was a Falun Gong practitioner in China and practised Falun Gong everyday. He said that he was arrested and threatened with detention and execution. The Applicant stated he was forced to write ‘a guarantee to stop the FLG practice’. The Applicant stated that police came to his home several times and watched him all day.   He stated that he suffered ‘deep damage and strife’ and could not work or have a normal life. He said that he used his savings to leave China for Australia with the help of a friend.

The Delegate’s decision

1. On 22 June 2010, the Applicant was invited to attend an interview with the Delegate, on 1 July 2010. However,  the Applicant failed to attend the interview.

2. On 12 July 2010, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

3. The Delegate found the Applicant claims to be ‘vague and unsubstantiated’. The Delegate found that on the basis of the information and evidence before it, it was not satisfied that there was a real chance that the Applicant would be persecuted for the reasons claimed if he were to return to China. The Delegate was not satisfied that the applicant had substantiated a claim of well founded fear of persecution and noted that the Applicant departed China using his own valid passport. The Delegate noted that the country information before it indicated that China maintains strict controls on the issue of passports, and the entry and exit of Chinese citizens.

The Tribunal’s review and decision

1. On 12 September 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant provided no further documents in support of his review application.

3. On 25 August 2010, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 28 September 2010 to give oral evidence and present arguments. The Applicant did not attend that hearing and did not give oral evidence.

4. The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent, Mr. Johnson, in his written submissions as follows:

   “9. The RRT found the applicant presented his written claims poorly, and did not provide sufficient details upon which the RRT could be satisfied he was implicated with Falun Gong or suffered any difficulties with the authorities because of his association (at [27])

   10. The RRT was not able to determine whether the applicant was a person of interest to the Chinese authorities when he left China, or whether he came to the attention of the authorities subsequently. It found it had insufficient information to be satisfied that the applicant was either active or committed Falun Gong practitioner, or that he intended to be involved with Falun Gong in the future (at [28]).

   11. The RRT found that the applicant had sufficient time and opportunity to provide evidence in support of his application. The RRT was not able to be satisfied that the applicant would be implicated in any Falun Gong activity which would attract the adverse interest of the Chinese authorities in the future (at [30]). As a result, the RRT was not satisfied the applicant had a well founded fear of persecution (at [31]). ”

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 16 November 2010, the Applicant attended a directions hearing before me. The Applicant confirmed that he wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit and submissions in support.

3. At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

4. At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.

5. The Applicant confirmed that he relied on the grounds contained in an application filed on 22 October 2010 as follows:

   “1. I did not attend the RRT hearing. Because I did not know English at all. I could not read the letters. I did not know that the Tribunal asked me for the RRT hearing. So I missed the chance to give oral evidence and present arguments at the RRT hearing.

   2. The Tribunal said “the Tribunal is not satisfied that the applicant is a Falun Gong practitioner and the applicant faces a real chance of convention related harm”

   3. The Tribunal said: the Tribunal is not satisfied that the applicant suffered serious harm amounting to persecution for reasons of his practice of Falun Gong.

   4. I did not attend the RRT hearing. So the Tribunal has only on the basis and limited evidence to make decision without further details and clarifications.

   So I think the Tribunal decision is unfair.  ”

6. The Applicant agreed that these grounds essentially sought to explain why the Applicant had failed to attend the Tribunal hearing and otherwise disagreed with the findings and conclusions of the Tribunal. For the reasons below, none of these grounds are made out.

7. At the commencement of the hearing, after the Court invited the Applicant to say whatever he wished in support of his application, the Applicant told the Court that he was waiting for documents from China. I asked the Applicant what the documents are and he replied that they prove he is a Falun Gong practitioner in China. After exploring that statement with the Applicant a little further, the Applicant stated that the documents were Falun Gong pamphlets and distribution materials. I asked the Applicant what attempts he had made to obtain those documents and he responded that he distributed materials in China and was banned from doing so and his activities restricted. The Applicant then said the documents would be helpful and include statements from other Falun Gong practitioners attesting to his Falun Gong practice in China.

8. I then took the Applicant through the procedural history of his protection visa application and review application. I reminded the Applicant that he had filed his protection visa application on 8 April 2010 and asked him what attempts he had made to obtain those documents thereafter. He stated that he was not aware when he lodged the protection visa application that he needed further documents to support his application. He agreed that he did not attend the interview with the Delegate. I took him to the Delegate’s decision where the Delegate found his claim to be ‘vague and unsubstantiated’ and asked him what steps he then took to obtain these further documents from China. The Applicant responded that he had tried to ask other Chinese people in Australia because he did not know much.

9. I then asked the Applicant, did that mean that he had not taken any steps to obtain those documents and statements from China. The Applicant answered yes.

10. I then took the Applicant to his review application lodged on 11 August 2010.

11. I took the Applicant to the Tribunal’s letter, dated 12 August 2010, acknowledging receipt of his review application. I pointed out that the letter informed the Applicant that if he wished to provide written materials to the Tribunal he should do so as soon as possible and that the letter gave him the Tribunal’s national enquiry telephone line and the telephone number for translating and interpreting services.

12. The Applicant agreed that he did not provide any further documents in response to that letter.

13. I took the Applicant to the Tribunal’s letter, dated 25 August 2010, sent to the Applicant at the address provided by the Applicant on his review application, inviting him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case.

14. That letter identified the date, time and location of the hearing and explained to the Applicant that if he failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it.

15. The Applicant agreed that he did not attend the hearing with the Tribunal and stated that he could not find anyone to read to him the Tribunal’s letter inviting him to attend the hearing. He said he was unaware that he had been invited to attend the hearing.

16. The Tribunal’s letter of invitation informed the Applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to send any additional information, documents or written arguments that he wished the Tribunal to consider. The letter also provided the Applicant with the Tribunal’s national enquiry telephone line and the telephone number for translating and interpreting services.

17. The Applicant’s explanation that he did not attend because he did not know what the letter said because he did not speak English does not identify any error on the part of the Tribunal going to its jurisdiction. Moreover, the Applicant was provided with the contact details of translating and interpreting services by the Tribunal on 2 occasions.

18. The first respondent provided evidence annexed to an affidavit of Gregory Joseph Johnson, affirmed 2 December 2010, that the Tribunal’s letter was sent to the Applicant within 3 days of the date of the letter. Indeed, the Applicant himself acknowledges that he received the Tribunal’s invitation.

19. In the circumstances, I am satisfied that the Tribunal’s notice of invitation to appear was sent in accordance with s.425 and s.425A of the Act.

20. In the circumstances, the Tribunal was entitled to exercise its discretion pursuant to s.426A of the Act to proceed to make its decision under review without taking any further action to enable the Applicant to appear before it.

21. To the extent that the Applicant was requesting this Court for an opportunity to obtain further documents from China, such a request is refused. The discussion I had with the Applicant about the nature of the documents and the opportunities the Applicant has had to obtain any such further documents, together with the further opportunity provided to the Applicant by this Court to file any evidence in support of his application, make clear that the Applicant has had sufficient opportunity to file evidence in support of his application in this Court.

22. Otherwise, the Tribunal’s decision record makes clear that the Tribunal had regard to the material provided by the Applicant in support of his protection visa application. The Tribunal found that the Applicant did not provide sufficient details regarding his interest or involvement with Falun Gong or his alleged persecution in China for the Tribunal to be satisfied of the veracity of his claims.

23. The Tribunal noted that the Applicant had been given an opportunity to provide more information, however, nothing further had been received by the Tribunal from the Applicant. Moreover, the Tribunal was satisfied that the Applicant was on notice that he had not provided sufficient evidence in support of his protection visa application.

24. In light of the Delegate’s decision about the unsatisfactory nature of the Applicant’s evidence, the Applicant was on notice that his information in support of his claims was not sufficient to satisfy the relevant criteria for being a refugee and therefore the Applicant was on notice that the paucity of his material was an issue arising in relation to the decision under review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152).

25. The Tribunal found that in the absence of further information, and in light of the Tribunal’s findings that it was not satisfied that the Applicant was persecuted in China as claimed, it was not satisfied the Applicant was at risk for any Convention related reason in the foreseeable future if he were to return to China.

26. The Tribunal therefore affirmed the decision under review. The Tribunal’s findings and conclusions were open to it on the material before it.

27. The Applicant’s grounds in support of his application to this Court otherwise appear to disagree with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J).

28. In the circumstances, the Tribunal’s decision is not affected by jurisdictional error.

29. The Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

30. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

31. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  14 December 2010