FEDERAL COURT OF AUSTRALIA

SZHFA v Minister for Immigration and Citizenship [2007] FCA 780

SZHFA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 335 OF 2007

SIOPIS J

9 MAY 2007

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the first respondent’s costs in the sum of $2,750.00.

3.                  The name of the first respondent be changed to “Minister for Immigration and Citizenship”.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of a Federal Magistrate dated 16 February 2007, which dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal).  The Tribunal’s decision dated 3 August 2005, and handed down on 23 August 2005, affirmed a decision of a delegate of the first respondent (the delegate) to refuse to grant a protection visa to the appellant.

2                     The appellant is a citizen of the People’s Republic of China who arrived in Australia on 20 January 2005.  He lodged an application for a protection visa on 15 February 2005.  The appellant attached a short statement in support of his application.  In summary, the appellant claimed that he had been employed as a labourer at a state‑owned plastics company between 1982 and 2002, when he was dismissed, or as he put it, “fired”, after the company announced that it was going into bankruptcy.  The appellant asserted that although he should have been paid unemployment allowance, none was forthcoming.  The appellant claimed that he had then attempted to operate a small business to support his family but when it failed he joined other unemployed people in a protest, seeking unemployment benefits.  The protest was dispersed by the police as the protesters were seen as “gangsters threatening the government”.  The appellant asserted that the Chinese government was unwilling or unable to protect him and that he, along with other protesters, had been “labelled as people disordering the social security”.  The appellant claimed some protest organisers were imprisoned but did not claim to have suffered any physical harm himself.

3                     On 15 March 2005, a delegate of the first respondent refused the application on the grounds that it did not contain sufficient information for the delegate to be satisfied as to the credibility or bona fides of the appellant’s claim.  On 17 April 2005, the appellant applied to the Tribunal for a review of that decision.

The Tribunal’s decision

4                     On 4 July 2005, the Tribunal wrote to the appellant advising him that it was unable to make a decision in his favour solely on the information currently held and inviting him to attend a hearing on 2 August 2005.  On 20 July 2005, the Tribunal received a “response to hearing invitation” indicating that the appellant wished to attend the hearing.  However, the appellant failed to appear before the Tribunal at the scheduled time.  The appellant had not provided the Tribunal with telephone contact details or authorisation to contact another person with information about his application.

5                     The Tribunal proceeded on 3 August 2005 to make a decision pursuant to s 426A of the Migration Act 1958 (Cth) (the Act), without allowing the appellant a further opportunity to appear before it.  The Tribunal found that:

[B]ased on the insufficient detail he provided, the Tribunal is not satisfied the [appellant] invokes protection obligations in Australia.  For instance, the [appellant] did not provide much if any detail as to why he was “fired” by the Hong Kong owner of the factory where he was formerly employed; how, why or when he may have been “labelled as people disordering the social security”.  Based on the limited evidence he provided, nor did the [appellant] satisfy me he may have been labelled, as claimed (or at all), and/or for the reasons he claimed. [sic]

The Federal Magistrate’s decision

6                     The appellant filed an application in the Federal Magistrates Court on 26 September 2006 seeking judicial review of the decision of the Tribunal, relevantly, on the basis that the Department had not looked into his claims, and that it was unreasonable for the Tribunal not to accept his claims simply because of his failure to attend the hearing.

7                     The Federal Magistrate set out the claims made by the appellant in his supporting statement, referred to at [2] above, and stated at [3] of his reasons:

It can be seen clearly from this description of the [appellant’s] claims that if he was to have any chance of success, he would have to attend before the Tribunal and provide far more detail.  His failure to do so meant that the Tribunal was placed in a position whereby it could not be satisfied that the [appellant] had made out the statutory elements for the grant of protection.

8                     The Federal Magistrate went on to find that the Tribunal did not commit jurisdictional error when it determined that it was unable to be satisfied on the evidence before it that the appellant had made out the statutory elements for the grant of a protection visa.

9                     The Federal Magistrate dealt with other grounds of review which, in light of the ground of appeal relied upon, it is not necessary to deal with.

10                  The Federal Magistrate dismissed the application for review.

Federal Court Appeal

11                  On 7 March 2007, the appellant filed a Notice of Appeal in this Court alleging, impliedly, that the Federal Magistrate had erred in failing to find that the Tribunal had acted in breach of s 424A of the Act, in that the appellant:

(a)                was not provided with the original application and attached statement;

(b)               was not made aware that the lack of detail in his application would be important; and

(c)                had no opportunity to comment on this deficit.

12                  In the case of SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238, Allsop J observed at [11] to [13]:

The Tribunal's obligation in relation to the grant or refusal of visas is contained within ss 36 and 65 in particular of the Migration Act.  If the Tribunal is not satisfied that Australia has protection obligations in relation to the applicant the Tribunal must refuse the visa.  Thus, it is necessary to understand why it was that the Tribunal reached the view that it did in relation to this applicant's claims, and in particular whether any information was the reason or a part of the reason for the decision.

In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state.  The reason or [sic] the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain.  The Tribunal concluded that on the material the absence of information was such that it was not able to reach the requisite state of satisfaction.  In SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195, I said the following at paragraph 29, which is equally applicable to the matter here:

         “On one view it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of section 424A(1) by section 424A(3)(b) it must be that that information was the reason or part of the reason for the decision.  That is too simplistic an analysis ... whilst in some cases an 'unbundling is necessary' in order sensibly to apply section 424A to the expressed reasons of the Tribunal, here the reason for the decision is plain.  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, 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 a reasonable part of the reason for the decision. It was the lack of requested further assistance and explanation that was the reason.” [sic]

In my view, looking at the Tribunal's reasons here, those comments equally apply here.

13                  In my view, Allsop J’s observations apply in this case.  The consequence is that s 424A of the Act has no application to the Tribunal’s decision, because the Tribunal’s decision was an evaluative conclusion based on the absence of information which would permit it to reach the requisite state of satisfaction.  Accordingly, the ground of appeal, which in any event was not raised before the Federal Magistrate, should be dismissed.  I, therefore, dismiss this appeal.

Associate:

Dated:         22 May 2007