BZAAE v Minister for Immigration & Anor [2010] FMCA 839 (3 November 2010)

Last Updated: 3 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BZAAE v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 839

MIGRATION – Review of Refugee Review Tribunal decision – applicant applied for protection visa – applicant failed to respond to all invitations by the Tribunal to appear before it.

Migration Act 1958 (Cth)

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287

Applicant:

BZAAE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 633 of 2010

Judgment of:

Burnett FM

Hearing date:

13 October 2010

Date of Last Submission:

13 October 2010

Delivered at:

Brisbane

Delivered on:

3 November 2010

REPRESENTATION

The applicant appeared on her own behalf

Counsel for the First Respondent:

Ms Kidson

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

Ms Kidson

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

(1) Application dismissed.
(2) The applicant pay the respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 633 of 2010

BZAAE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who first entered Australia on 2 August 2008 as the holder of a Tourist Class TR (Sub Class 676) visa. She subsequently departed Australia and re-entered again on 21 March 2009. On 15 December 2009, she made application for a Protection Visa. In summary, she claimed to be a Falun Gong practitioner in China who had been subject to persecution by reason of her Falun Gong practice.
2. On 19 January 2010, a delegate for the Minister sent a written invitation to the applicant by registered post inviting her to attend an interview with him on 9 March 2010. The invitation letter was returned unclaimed and the applicant did not attend the interview on 9 March as had been arranged. The delegate thereby decided on the same day to refuse the application.
3. On 9 April 2010, the applicant applied to the Tribunal for review of the delegate’s decision. On 22 April 2010 the Tribunal wrote to the applicant pursuant to section 424A of the Migration Act. In its letter the Tribunal set out the material it considered to be the reason or part of the reasons for affirming the decision of the review and invited the applicant’s comments on that material. The applicant did not respond to that invitation.
4. In a separate letter, also dated 22 April 2010, the Tribunal invited the applicant to appear before it to give oral evidence and present arguments at a hearing to be conducted on 27 May 2010. When the application was called before the Tribunal on 27 May 2010 the applicant did not appear. The Tribunal proceeded to determine the application pursuant to section 426A of the Migration Act and made a decision on the review without providing any further opportunity for the applicant to appear before it. By its decision dated 27 May 2010, the Tribunal decided to affirm the delegate’s decision.
5. On 29 June 2010, the applicant lodged an application for review of the Tribunal’s decision.
6. In the applicant’s application, it sought orders that the decision of the Tribunal be set aside. The grounds of the application were:

“1. The decision involved an important exercise of power conferred by the Migration Act and Regulations.

2. There was no evidence or other materials to justify the making of the decision.
3. I face a risk of being jailed if I go back to China.”

Ground 1 – the decision involved an important exercise of power conferred by the Migration Act and Regulations

7. The respondent submits this is not a proper ground for review as it does not allege any error on the part of the Tribunal. Respectfully I agree. This ground is dismissed.

Ground 2 – there was no evidence or other materials to justify the making of the decision

8. At the hearing before me the applicant appeared in person. The applicant made submissions directed to the merits of the application. Such an approach in a judicial review application is impermissible.[1] In the course of submissions by the applicant, she provided an explanation for her failure to appear before the Tribunal and provide submissions at that time. The applicant’s explanation was that she was suffering from a urinary tract infection which prevented her from attending the hearing. When pressed, it was apparent that she was not under medical treatment at the time and that she made no real efforts to inform the Tribunal of her malady. No medical evidence was presented to the hearing before me to verify the applicant’s medical complaint and its potential disabling effects on the day of hearing.
9. There is no material to suggest that the Tribunal was not within its rights in proceeding to hear the application in her absence given the applicant’s failure to attend.
10. Accordingly, the Tribunal was left to determine the application consistent with the legislation and the material before it. Sections 65 and 415 of the Migration Act provide that if the Tribunal is not satisfied that the relevant statutory criteria for a Protection Visa are satisfied, the Tribunal is bound to affirm the delegate’s decision. It is well settled that it is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well founded fear of persecution for a convention reason; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187].
11. In her application for a Protection Visa, the applicant claims for protection as set out in her typed unsigned statement attached to the application. In the statement the applicant asserted that:
    1. she was a Falun Gong practitioner in Quang Zhou China;
    2. the Chinese authorities had outlawed Falun Gong all over the country and that anyone who practised Falun Gong would be arrested, dismissed from their employment positions and forced to receive re-education in “detaining houses”;
    100. she was detained by the police for one and a half months in Quang Zhou detention centre, tortured by police and forced to declare that she would not practise Falun Gong;
    4. the police could be found at every Falun Gong “practicing (sic) sites” and even those who were suspected of being Falun Gong followers were under surveillance; and
    5. the applicant decided to leave China and some of her friends helped her to get a passport. She applied for an Australian Business Visa to enter Australia.
12. The applicant did not provide any further information or documentation in support of her claims. She did not expand upon her claims as to when she lodged her application for review with the Tribunal. She did not respond to the Tribunal’s invitation to comment extended pursuant to section 424A of the Migration Act 1958, despite the Tribunal clearly foreshadowing that her application and travel history may indicate that she had failed to seek protection in a timely manner and that this may cause the Tribunal to find that she did not have a genuine fear of persecution in China. Additionally, as earlier noted the applicant did not attend at the Tribunal hearing.
13. In NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] per French, Emmett and Dowsett JJ the Full Court made the following observations:
    • “In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.”
14. In this instance, the only information provided by the applicant in support of her claims was the unsigned statement attached to her application, the contents of which the Tribunal never had an opportunity to test.
15. The insufficiency of the applicant’s statement in the mind of the Tribunal was amply demonstrated by its reasons, particularly at paragraphs 32 and 33 where the Tribunal noted:
    • “32. The Tribunal finds the applicant’s claims to be vague and lacking in details. The applicant claims that she was a Falun Gong practitioner, but she provides no details about when, or how or why she became a practitioner or the circumstances of her practice. The applicant does not explain where or how frequently she practised, whether she practised publicly or in private, on her own or with others. The applicant states that she was detained for a month and a half but she provides no details of arrest, when or how it occurred or the circumstances of her detention. The applicant refers to surveillance of practitioners and practise sites, but provides little detail about her own dealings with the authorities, other than her reference to the arrest. The applicant claims she obtained the passport through friends but does not explain how she was able to do so. The applicant makes no reference to whether she continued to engage in the practice of
      Falun Gong in Australia.
    • 33. Further, electronic records before the Tribunal indicate that she had travelled to Australia twice in August 2008 and departed Australia in November 2008. She had not sought protection during that visit and had not explained it to the satisfaction of the Tribunal her failure to do so. In the Tribunal’s view, if the applicant had been involved in the practice of Falun Gong and had been detained as a result, as she claims, she would seek the first available opportunity to apply for protection.”
16. It follows, in my view, that there was simply no material available to the Tribunal upon which it could be satisfied that the applicant’s assertion of fact, as contained in her statement, should be accepted. The matter was one open to the Tribunal and the conclusion one properly available to it. No error has been demonstrated in the manner in which the Tribunal dealt with the applicant’s application. It follows that there is no basis for the applicant’s assertion that there was no evidence or other material to justify the making of the decision. The applicant’s second ground is refused.

Ground 3 – the applicant faces a risk of being jailed if she returns to China

17. As was submitted by the respondent, this is not a proper ground for review. It is an assertion of fact by the applicant which effectively invites the Court to engage in impermissible merits review. Respectfully, I accept that submission. This ground also fails.

Conclusion

18. The applicant has applied for review of the Tribunal’s decision affirming a decision of the delegate of the Minister not to grant a Protection Visa to the applicant. She advanced three grounds, two of which invited the Court to engage in impermissible merits review. Those grounds are dismissed. The third ground addresses the inadequacy of material before the Tribunal justifying its decision. A review of the process and Tribunal’s decision reveals no error. This ground is also dismissed.

Orders

19. Application dismissed.
20. The applicant pay the respondent’s costs fixed in the sum of $5,865.00.

I certify that the preceding 20Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twentytwenty (20) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date: 2 November 2010

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[1] MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 at [8].