SZBMR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1496

FEDERAL COURT OF AUSTRALIA

SZBMR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1496 SZBMR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOR NSD 1354 of 2005 LINDGREN J 12 OCTOBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1354 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBMR

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT JUDGE: LINDGREN J

DATE OF ORDER: 12 OCTOBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1354 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBMR

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: LINDGREN J

DATE: 12 OCTOBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates Court of Australia ('the FMCA') (SZBMR v Minister for Immigration & Anor [2005] FMCA 1011). 2 On 20 July 2005 the FMCA dismissed an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 22 July 2003 and handed down on 19 August 2003. By its decision, the Tribunal affirmed a decision of a delegate of the respondent Minister (respectively 'the Delegate' and 'the Minister') not to grant a protection visa to the appellant. 3 The appellant, who claimed to be a citizen of Mongolia, arrived in Australia on 3 February 2003. On 3 March 2003 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) ('the Act'). 4 On 17 March 2003 the Delegate refused to grant the visa. On 14 April 2003 the appellant applied to the Tribunal for a review of that decision. 5 The appellant claimed to have a well-founded fear that she would, if she returned to Mongolia, suffer persecution for reasons of religion. Briefly, her claim was that she had begun to attend a Baptist church and that she and other members of the Baptist community had been attacked and beaten twice after church services. She also said that her husband had beaten her. She said that the motivation of the attackers after the church services and also of her husband was that she preferred Christianity to Buddhism. She complained that the law in Mongolia offered her no protection from her husband, and that the leaders of her church failed in obtaining protection from the law enforcement agencies. 6 Importantly, on 17 June 2003 the Tribunal wrote to the appellant, sending a copy of the letter to her migration agent, Mr Yevgen Kyselov of NESK Immigration Services, advising that the Tribunal had considered the material before it but was unable to make a decision in her favour on that information alone. Accordingly, the Tribunal invited the appellant to attend a hearing at 11.30 am on Friday, 25 July 2003. In writing that letter, the Tribunal was acting pursuant to s 425 of the Act. 7 On 4 July 2003 Mr Yevgen Kyselov responded, advising the Tribunal that the appellant did wish to come to a hearing and would need an interpreter able to interpret the Mongolian language. 8 On 17 July 2003 the Tribunal again wrote to the appellant with a copy to Mr Kyselov, advising that the hearing time of 11.30 am had been moved to 2.00 pm, still on Friday 25 July 2003. 9 On 21 July 2003 Mr Kyselov, on behalf of the appellant, wrote to the Tribunal advising that the appellant did not wish to attend the hearing, and that she consented to the Tribunal proceeding to make a decision on the review without taking any further action or allowing the appellant to appear before it. 10 In view of the fact that on 17 June 2003 the Tribunal had advised the appellant that it was unable to make a decision in her favour on the existing material, when she decided not to appear at the hearing, the appellant must have known that the Tribunal would make a decision unfavourable to her. 11 The Tribunal had before it country information relating to Mongolia. In its reasons for decision, the Tribunal referred to that information, which the Federal Magistrate later described as 'equivocal'. No doubt his Honour was referring to the fact that some of the country information suggested that there was no persecution of Christians in Mongolia, while other information suggested that there was. 12 I do not think it necessary to outline the nature of the information which the Tribunal summarised in its reasons for decision, or to address the question whether all of the treatment adverse to Christians referred to in the country information amounted to 'persecution'. 13 In its findings and reasons, the Tribunal member said that she was not satisfied that the appellant's claims in relation to her religion were credible. The member said that if the appellant had attended the hearing, the member would have asked her about a number of matters to which the member referred in her reasons. The member said: 'Given the ambivalent nature of the independent evidence regarding the treatment of Christians in Mongolia I cannot accept that she was attacked as she has claimed.' 14 The member also referred to information on Mongolia emanating from the US State Department referring to the 'generally amicable relationship among religions in society', to the fact that citizens generally were 'tolerant of the beliefs of others' and to the absence of 'reports of religiously motivated violence'. The member referred to the US State Department information, not to indicate a finding based on it, but to indicate that there was evidence before the member contradictory of the appellant's case. 15 The member stated that while she was prepared to accept that the appellant may have been the victim of domestic violence, she could not accept that it was the result of her claimed conversion. The member said that she would have explored this issue with the appellant at a hearing and would have inquired whether she had ever sought State protection. 16 The member's conclusion was that she was not satisfied on the evidence before the Tribunal that the appellant had a well-founded fear of persecution within the meaning of the Convention. In summary, the case was one of 'non-satisfaction'. 17 The Federal Magistrate did not perceive any jurisdictional error in the Tribunal's reasons and neither do I. 18 Before me this morning, the appellant said that she was advised by her migration agent not to attend the hearing before the Tribunal. If that is so, it is, of course, most unfortunate. Full Courts of this Court have remarked that a person faces a difficult task in establishing an error by the Tribunal where, in circumstances such as those which prevailed here, the appellant has not appeared before it: see, for example, S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at [24]; Minister for Immigration & Multicultural & Indigenous Affairs vVSAF of 2003 [2005] FCAFC 73 at [11] and following. 19 The appellant's notice of appeal to this Court does not identify any jurisdictional error. It refers to s 424 of the Act which provides that the Tribunal 'may' get information that it considers relevant and 'may' invite a person to give it additional information. That section does not impose an obligation on the Tribunal. The notice of appeal also refers to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, but does not state any manner in which s 424A offers a basis for attack on the Tribunal's decision in the circumstances of the appellant's case. None is obvious. 20 The appeal should be dismissed with costs. I note that the Federal Magistrate referred the transcript of the hearing before him to the Migration Agents Registration Authority. 21 Before me, the appellant has said that she feels confident that if she had legal advice, she would be able now to persuade the Tribunal that she is a refugee within the definition in the Convention. I have explained to her that it is not open to me to refer the matter to the Tribunal simply so that she may have a second opportunity, and with better representation, to seek to persuade the Tribunal that she does satisfy the definition. I have also attempted to explain to the appellant the possibility of an application directly to the Minister under s 417 of the Act. If she decides to follow that course, it would be helpful if she had professional assistance in doing so. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.