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SZNGC v Minister for Immigration & Anor [2009] FMCA 834 (4 September 2009)

Last Updated: 15 September 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 SXFB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 164 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; [2007] 235 ALR 609 SZHFE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2006] FCA 648 SZHFE v Minister for Immigration & Multicultural & Indigenous Affairs  [2007] HCATrans 10  SZLOJ v Minister for Immigration & Citizenship [2008] FCA 1693 SZMJD v Minister for Immigration [2008] FMCA 1297 SZMJE v Minister for Immigration & Citizenship [2008] FCA 1751

REPRESENTATION

ORDERS

(1) The application filed on 12 February 2009 is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

SYG 336 of 2009

Applicant

And

First Respondent

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant was born in Fujian province, the People’s Republic of China. She claims she is married and that her husband, son and daughter currently reside in China. The applicant alleges that Chinese authorities persecuted her because of her attendance at an underground church.
2. At her interview with the Department of Immigration on 5 September 2008, the applicant asserted:
   • While working at a flour factory in 1993 she met her then boyfriend and became pregnant;
   • A year later, the factory closed and she had a small painting business until 2002 and operated a small business making breakfast between 2002-2008;
   • She fell pregnant in 1995 and hid until 1996 as a result of threats of abortion by the authorities;
   • In 1996 after giving birth to a baby boy, she was sterilised by village committee authorities and became very sick;
   • In 2006 she and her husband took a child home and were then pressured by the government to pay a fine for having two children;
   • The applicant and her husband were subsequently harassed and paid the fine in 2006;
   • In 2006, her husband was hospitalised in Fuqing Hospital after a vehicle accident;
   • The applicant and her husband attended an underground church twice weekly from 2007 and at a church gathering one night she was physically harassed by the police and forced to sign a piece of paper;
   • Later when she called her husband, he told her not to come home because the government were investigating her.
3. The applicant arrived in Australia on 11 July 2008 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 14 July 2008. A delegate of the Minister refused to grant the visa on 8 October 2008 and the applicant was notified of this decision and her review rights by way of a letter of the same date.
4. On 5 November 2008, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision. On 15 January 2009, Tribunal member Patricia Leehy affirmed the delegate’s decision not to grant the applicant a Protection visa and it is this decision which is the subject of the application to this Court.
5. A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before this Court.

The Tribunal decision

6. I rely on the written submissions prepared by Mr Shariff, Counsel for the first respondent, as a convenient summary of the Tribunal’s decision and the applicant’s claims at the hearing of 13 January 2009. The Tribunal accepted that the applicant was a citizen of China but otherwise rejected all of her claims (CB 104-5).
7. The Tribunal found that the applicant was not committed to Christianity (CB 104 at [43]; CB 105 at [47]). Further, having regard to the applicant’s unconvincing and vague evidence, it rejected the applicant’s claim of arrest and detention by reason of her religion (CB 104 at [44]). The Tribunal concluded that the relevant authorities in China did not impute the applicant to be a Christian, nor harm her for that reason (CB 104 at [44]). The Tribunal accepted that she had been sterilised and harassed to pay a fine in relation to the adoption of the second child (CB 104 at [45]). However, it was not satisfied that the applicant was subjected to discriminatory treatment in relation to enforcements of the “One Child” policy, which is a law of general application in China (CB 105 at [45]).
8. In summary, the Tribunal rejected the applicant’s claims and was not satisfied that she faced any chance of persecution for a Convention reason (CB 105 at [48]).

Consideration

9. At the first Court date, the applicant indicated a desire to participate in the Court-sponsored legal advice scheme and arrangements were made by the Court Registry. The panel advisor provided the Court with a letter indicating that the applicant attended the conference and was provided with written advice. The applicant was also granted leave to file an amended application but did not avail herself of this opportunity. A further order was made for the applicant to file written submissions 14 days prior to the hearing but this was not complied with. When was invited to make oral submissions, the applicant stated that Australian authorities had advised Chinese authorities that she had made a Protection visa application in Australia, which was a breach of the Convention. The applicant then declined to make any further statements or address the grounds of review in her original application.

Ground one

The Tribunal failed to act judicially and afford procedural fairness.

10. No particulars, written or oral submissions were provided in support of ground one. Mr Shariff submits in relation to the applicant’s general claim of being denied procedural fairness that s.422B of the Migration Act 1958 (Cth) (“the Act”) provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. In the present case, there is no evidence that the Tribunal deviated from the requirements of Division 4 of Part 7 of the Act.
11. The only evidence before the Court is the material contained in the Court Book. In the absence of a transcript of the Tribunal hearing, it is apparent that the applicant was invited to attend the Tribunal hearing on 13 January 2009 (which occurred) but no witnesses, friends or assistants were present other than the interpreter. The hearing lasted just under two hours. The contents of the hearing are summarised in the Tribunal decision. From the information available, it is not apparent that the Tribunal failed to comply with procedural steps as outlined in the Act. Further, in the absence of any specific particulars of this alleged failure, this ground cannot be sustained and should be dismissed.

Ground two

The Tribunal failed to comply with s.424A of the Act.

12. This ground of review is also made in the absence of particulars, oral or written submissions.
13. Mr Shariff submits that s.424A of the Act was not enlivened and relies on the following:
    1. The information relied upon by the Tribunal was contained in the applicant’s Protection visa application through her answers to printed questions and consequently falls within the exception of s.424A(3)(b) and s.424A(3)(ba), see SZMJE v Minister for Immigration & Citizenship [2008] FCA 1751 at [22] per Siopis J:
       • ...there is no obligation on the Tribunal to disclose its thought processes which would include the inconsistencies referred to by the applicant. Further, there was no obligation on the Tribunal under s.424A to call for comment from the applicant on the written statement which he had lodged in support of his visa application because that was information of s.424A(3)(ba) of the Act.

See also SZLOJ v Minister for Immigration & Citizenship [2008] FCA 1693 at [15] per Logan J:

15. Insofar as the Tribunal looked at the material which the applicant had himself provided to the department and even putting their claim for notice under s.424A at its highest, the problem is that the exception in s.424(3)(ba) is engaged. So much evidently was the view of the learned federal magistrate: see para. [10] of His Honour’s reasons. That is one reason why there is no merit in the ground of appeal advanced. Another, in my opinion is that the circumstances of s.424A was not engaged at all because there was just no “information” to which the attention of the applicants had to be drawn and the invitation consequently excluded.

2. The independent country information (CB 152-154) fell within the exception contained in s.424A(3)(a) of the Act.

100. Inconsistencies in the applicant’s evidence and the Tribunal’s rejection of her evidence did not enliven s.424A: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; [2007] 235 ALR 609 at [18].

14. Again, in the absence of particulars or submissions to identify the alleged breach of s.424A, it is not apparent from a review of the Tribunal decision that this provision was breached. The ground cannot be sustained and should be dismissed.

Ground three

The Tribunal failed to comply with s.91R(3) of the Act.

15. Mr Shariff submits that s.91R(3) of the Act applies when an applicant adduces evidence of conduct in Australia in order to establish a “sur place” claim: SZHFE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2006] FCA 648 at [30] (special leave to appeal was refused by the High Court, see SZHFE v Minister for Immigration & Multicultural & Indigenous Affairs  [2007] HCATrans 10 ; SZMJD v Minister for Immigration [2008] FMCA 1297 at [96]. Mr Shariff submits that in this matter the applicant did not advance any evidence to strengthen her claims and accordingly s.91R(3) was not enlivened. Further, that the Tribunal pointed to her almost complete lack of involvement with Christianity since her arrival in Australia and concluded that Christianity was of no great importance to her (CB 104 at [43]). In light of the applicant’s claims which are recorded in the Court Book, this ground of review is misconceived. This ground cannot be sustained and should be dismissed.

Ground four

The Tribunal failed to investigate the applicant’s genuine claims.

16. This ground is also made in the absence of particulars or submissions. Further the unidentified party assisting the applicant in these grounds of review, has demonstrated a complete lack of understanding of the operation of the Act. The Tribunal is under no obligation to carry out any investigation into the applicant’s claims. The only material the Tribunal could proceed on were the facts as alleged by the applicant, contained in the papers or provided during the hearing. The relevant facts pertaining to the application need to be supplied by the applicant herself in as much detail as is necessary to establish them.
17. It is for the applicant to make out her case: Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at [596] per Kirby J. It is acknowledged that the Tribunal has the power to obtain further information. However, it is well-established that it is under no obligation to carry out an investigation of an applicant’s claims. Nor is it under a duty to utilise any permissive statutory power to undertake its own investigation. In this matter the applicant had the opportunity to attend a Tribunal hearing and provide additional facts. To the extent that she did, the applicant cannot now complain that other facts were not taken into account or be allowed to furnish additional facts and ask that they be taken into account.
18. There are a series of decisions which state that the Tribunal is not obliged to undertake its own investigations into an applicant’s claim. In SXFB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 164 at [8], Finn, Emmett and Bennett JJ stated:
    • ...relating to s.427 of the Act, seemingly refers to the powers of the Tribunal to make an investigation. It is well accepted that this does not give rise of course to any mandatory obligation: see Re Minister for Immigration & Multicultural Affairs; ex parte Cassim [2000] HCA 50; (2000) 175 ALR 209 at [13]...
19. In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43], Gummow and Hayne JJ stated:
    • whilst s.427 of the Act confers powers on the Tribunal to obtain medical report 15., the Act does not impose any duty or obligation to do so. Rather, s.426( [16] provides that, even if an applicant requests that the Tribunal make oral or written submissions to a witness (such as a medical practitioner or psychiatrist, the Tribunal is not required to obtain such evidence). Thus, the Tribunal is under no duty to enquire.
20. This ground of review is misconceived and cannot be sustained. It should be dismissed.

Conclusion

21. The applicant appears before this Court as a self-represented litigant who had the benefit of legal advice by an allocated panel adviser. However, the initial application lists four grounds of review all of which are general statements raising issues common in administrative review cases. None of the grounds are particularised nor has there been any attempt at written or oral submissions to explain the relevance of these grounds to the decision currently under review. On the Court Book before the Court and in the absence of any transcript or submissions, the Tribunal appears to have addressed each of the issues raised by the applicant and provided clear and logical analysis for its ultimate rejection of the applicant’s claims.
22. The Tribunal’s reasons for decision, which is the only evidence before the Court in relation to the conduct of the Tribunal hearing, indicates the concern it had with aspects of the applicant’s evidence which it raised with her during the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts. In the circumstances, the application should be dismissed with an order for costs against the applicant.

I certify that the preceding 22Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-twotwenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 4 September 2009