FEDERAL COURT OF AUSTRALIA

SZHML v Minister for Immigration & Citizenship [2007] FCA 1750

SZHML v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 987 OF 2007

SUNDBERG J

16 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal fixed at $3,000.00.

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

REASONS FOR JUDGMENT

Background

1                     The appellant is a citizen of the People’s Republic of China who arrived in Australia on 12 January 2005. On 1 February 2005 he applied for a protection visa. A delegate of the first respondent refused the application. The appellant’s application for a review of that decision by the Refugee Review Tribunal was unsuccessful, and he sought review of the Tribunal’s decision by the Federal Magistrates Court. That application was also unsuccessful, and he has appealed to this Court. Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 the appeal is heard by a single judge.

The Tribunal’s decision

2                     The appellant claimed to have left China for fear of persecution. He said he had been a Falun Gong practitioner since 1998. His best friend, who taught him Falun Gong, had been imprisoned for 4 years. The appellant had to report ‘periodically’ to police, and had to stay at the police station on holidays and other important days. The police started to investigate him in 2004. The appellant claimed to have paid a large amount for his passport.

3                     On 12 May 2005 the Tribunal advised the appellant by letter of the process of the application and told him about what to do if he changed his address. On 26 July 2005 the Tribunal wrote to the appellant inviting him to give oral evidence on 9 September 2005. No response was received and the letter was not returned. There was no migration agent involved, and the Tribunal had no contact phone number for the appellant, and so the Tribunal took no further action.

4                     The appellant failed to attend the hearing and the Tribunal proceeded pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’) to make a decision without taking further action to enable the appellant to appear.It was found that the appellant’s claims were brief and vague on crucial points. The appellant did not explain why, if he was already known as a Falun Gong practitioner, the police began investigating him in April 2004. There was also no evidence presented by the appellant about his Falun Gong practice or details relating to his friend’s imprisonment.

Federal Magistrates Court

5                     In his amended application in the Federal Magistrates Court, the appellant contended that the Tribunal made its decision without referring to independent country information; the application was not properly considered because the Tribunal thought the claims were brief and vague; and the appellant was not informed in writing about the reasons for the decision. The appellant also said he “did not attend the hearing because I worried about my safety, there are spies from 610 officer everywhere in Sydney, especially organization like RRT”.

6                     The Federal Magistrate held that the Tribunal did not need to refer to independent information in considering the application and in forming the view that the claims were ‘brief and vague’ on crucial points. It was held that it was open to the Tribunal to find the appellant’s unsupported and unexplained claims were vague. The Federal Magistrate considered that it was for the decision maker to reach the mandatory statutory level of satisfaction. The Tribunal was held not to have breached s 424A of the Act. The mere re‑statement of the appellant’s claims was not “information” for the purposes of s 424A(1). The appellant’s complaint that he did not know that the Tribunal was unclear about certain matters could not be sustained. The Federal Magistrate said the Tribunal had nothing before it to alert it to the appellant’s concerns about attending the hearing before the Tribunal. The letter of invitation to the hearing was held to have complied with ss 425 and 425A of the Act. His Honour dismissed the application.

Grounds of appeal

7                     There are three grounds of appeal:

·               The Tribunal failed to consider the application in accordance with s 91R of the Act (‘Ground One’).

·               The Tribunal failed to carry out its statutory duty; failed to notify the appellant of the decision; and failed to consider the appellant’s application according to s 424A of the Act  (‘Ground Two’).

·               The Tribunal failed to assess the chance of persecution on the applicant’s return to China because of his involvement with Falun Gong (‘Ground Three’).

Ground One

8                     The Tribunal’s failure to consider s 91R was not a ground relied on before the Magistrate. The section provides in part as follows:

(1)               For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)          that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)          the persecution involves serious harm to the person; and

(c)           the persecution involves systematic and discriminatory conduct.

(2)               Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)          a threat to the person’s life or liberty;

(b)          significant physical harassment of the person;

(c)           significant physical ill‑treatment of the person;

(d)          significant economic hardship that threatens the person’s capacity to subsist;

(e)           denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)            denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

9                     Section 91R is a restrictive provision. In certain respects it qualifies the generality of Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol. The Tribunal listed the respects in which the appellant’s claims were vague and lacked particularity. These were matters it would have pursued with the appellant had he attended the hearing. The Tribunal said the “claims are so vague that I am unable to establish the relevant facts”. It concluded by saying that it was not satisfied, on the evidence before it, that the appellant has a well‑founded fear of persecution within the meaning of the Convention. The Tribunal was there speaking of Article 1A(2) of the Convention, that is to say of that article unqualified by s 91R. The Tribunal had no occasion to consider the qualifications imposed by s 91R because it was not satisfied that the appellant came within the unqualified terms of the article. It necessarily followed from this that s 91R would not be satisfied, as the Tribunal well knew, because it set out the effect of s 91R in its reasons. The Tribunal made no error in not testing the appellant’s claims against s 91R. The Magistrate made no error in not doing so, because the Tribunal’s failure to apply s 91R was not a ground of appeal before him.

Ground Two

10                  The first of the three complaints in this ground is that the Tribunal “failed to carry out its statutory duty”. For reasons that I have outlined with respect to Ground One, this complaint cannot succeed. No error has been shown in the Magistrate’s conclusion that “it was open to the Tribunal to find the applicant’s unsupported and unexplained claims to be vague” and that his belief that they were not vague did not disclose jurisdictional error because the question of satisfaction under s 65 of the Act was for the decision maker and not the applicant.

11                  The second and third complaints can be dealt with together. The Magistrate stated at [18] that the appellant contended that the Tribunal did not “inform the applicant of the basis on which it would subsequently refuse his application.” Section 424A(1) provides:

Subject to subsection (3), the Tribunal must:

(a)          give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)          ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and

(c)           invite the applicant to comment on or respond to it.

12                  At [19]‑[20] the Magistrate said:

I cannot see that the reference to the applicant’s claims in the Tribunal’s ‘Findings and Reasons’ is such as to breach the requirements set out in s 424A(1) of the Act (bearing in mind what was said by the High Court in the matter of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 …. A mere re‑statement of the applicant’s claims as has plainly occurred in the matter before me, does not mean that such a re‑statement is information for the purposes of s 424A(1) of the Act.

Plainly, as I have already stated, the reason for the Tribunal’s decision was the Tribunal’s inability to reach the requisite state of satisfaction such that the applicant must be granted a protection visa. As the Minister submits, and indeed, on any plain reading of the Tribunal’s decision record, no findings of fact were made on the information contained in the protection visa. Simply, the Tribunal found the paucity of the material and the absence of material such that a decision in the applicant’s favour could not be made.

(Emphasis Added)

13                  Later at [21] his Honour said:

I should also note that beyond s.424A of the Act, the applicant’s claim that he was not on notice as to why the application would possibly be refused is not made out on the material before the Court. The Tribunal’s letter of 26 July 2005 was quite plain. On what was before it, the Tribunal could not be satisfied that the applicant met the relevant requirements such that a protection visa should be granted to him, that is, the requirement set out in s 36(2) of the Act, with reference to Article 1A(2) of the Refugee’s Convention. Far from the Tribunal failing to tell the applicant that the lack of detail and paucity of evidence would be the possible reason for its ultimate decision, the Tribunal’s letter plainly shows that this was the reason why it invited him to a hearing to enable him to convince the Tribunal to come to a different conclusion. The applicant claims that he did not know that the Tribunal was unclear about these matters and that he would have ‘explained to her’ about these things if he knew about them. On what is before me, this complaint cannot be sustained.

14                  No error has been shown in the Magistrate’s disposition of the appellant’s reliance on s 424A. Again, the basis for the Tribunal’s decision in predicated on “paucity of the material” such that a decision in the appellant’s favour could not be made.

Ground Three

15                  The third ground overlaps with Ground One. The reasons disposing of Ground One apply to Ground Three and require its rejection.

Affidavit complaints

16                  Although the notice of appeal contains only the three grounds with which I have dealt, the appellant’s affidavit in support of the appeal contains additional complaints.

(a)           The first is that the Tribunal failed to consider his application according to law. In the absence of particulars, it is not possible to deal with this complaint. Apart from what has been said in relation to the grounds of appeal, all one can add is that the Tribunal referred to and applied the correct statutory test, the appellant was invited to provide further information to the Tribunal, and he was invited to attend the hearing, give evidence and make submissions.

(b)          The next complaint is that the Tribunal did not refer to sufficient independent information. There is no substance in this contention. It is for the appellant to satisfy the Tribunal that the legislative requirements have been satisfied. The Tribunal has no obligation to make investigations or provide evidence. It is for the Tribunal to decide what, if any, country information it uses: VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104; SZIHU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1675.

(c)           Then it is said that the Tribunal failed to consider the appellant’s decision in accordance with the Act. I refer to what I have said in (a).

(d)          Next it is said that the Tribunal was biased. This complaint is not particularised. In any event, there is no support for it in the Tribunal’s reasons or in any other sources. There is no suggestion that the Tribunal approached the matter with a mind closed to acceptance of the appellant’s case. It is of course to be remembered that the appellant did not attend before the Tribunal in response to its request that he do so.

(e)           The final grievance is that the appellant was not given an opportunity to comment on the Tribunal’s reason for affirming the decision. There is no substance in this. The appellant was invited to attend a hearing. The reason he was invited was that the Tribunal did not have sufficient information to make a finding in his favour. As indicated at [3], the Tribunal was at liberty to proceed as it did. It was under no obligation to provide the appellant with advance notice of its reasoning process in order that he might comment on it. I refer to what I have said at [14] in approving the Magistrate’s observations set out at [12] and [13].

Conclusion

17                  None of the grounds of appeal and none of the affidavit complaints is made out and the appeal must be dismissed.

Associate:

Dated:         16 November 2007