SZEGZ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from the orders and reasons for judgment of a Federal Magistrate made and given on 28 February 2005, which dismissed the appellants' application for review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 2 July 1999, and which affirmed an earlier decision of a delegate of the respondent Minister dated 31 October 1998 refusing the appellants protection (Class XA) visas. 2 The appellants, who are husband and wife, are citizens of the People's Republic of China. They arrived in Australia on 6 January 1997 but did not lodge applications for protection visas until 30 September 1998. Of the two, the wife was the only applicant who specifically claimed to have a well-founded fear of persecution on her return to China, since her husband made his application as a member of her family unit. 3 The appellant wife's claims are contained in the written statement annexed to her application for a protection visa, which were extracted in whole by the Tribunal in its reasons for decision. It would appear that the appellant wife claimed to have a well-founded fear of persecution on the basis of her political beliefs. The appellant wife claimed that following the Communist revolution her grandparents and parents were subject to persecution at the hands of the new government; this in turn led to the appellant being deprived of 'education rights'. In spite of that, the appellant claimed that she was able to obtain a job teaching in a primary school however after an undisclosed period of time she again earned the ire of the Communist government due to her progressive teachings. In particular, the appellant alleged that she orchestrated a letter-writing campaign in support of those students involved in the 1989 pro-democracy protests. This led to her detention at the hands of the Public Security Bureau ('PSB') and an extended period of unemployment. After that, the appellant was able to start up her own clothing factory which was financially a success until local Communist authorities confiscated it and ceased production. This was said to be because the appellant refused to employ certain 'bad personalities', who were associated with the local government officials. After failing to obtain relief for her treatment from the courts, the appellant alleged that she again organised a protest, which led to a second period of detention by the PSB and physical and mental mistreatment. It was only after her family paid a bribe that the appellant was allegedly released. The appellant claimed that she had difficulty getting a passport but that once that was achieved she left the country. As I have said, the appellant husband did not make specific claims of his own and thus the success, or otherwise, of his appeal depends on that of his wife's. 4 On 6 April 1999, the Tribunal wrote to the wife informing her that the Tribunal had considered the material before it in relation to the application but that without more could not make a decision in the appellants' favour. That letter also invited the appellant to a hearing 'to give oral evidence and present arguments in support of your claims'. The wife was informed that she was 'entitled to ask the Tribunal to obtain oral evidence from another person'. That letter warned the appellant that if she did not respond to that letter of invitation, the Tribunal would assume that she did not want her case to come to hearing and that the Tribunal would then make a decision on her case without further notice. In a response received by the Tribunal on 23 April 1999, the wife indicated that she would like to come to a hearing, and furthermore that in spite of the fact that her application includes other family members, they would not like separate hearings. The Tribunal sent a letter dated 7 May 1999 to the wife informing her of the scheduled hearing on 16 June 1999 which also warned the appellant that if she did not attend the hearing and a postponement had not been granted, the Tribunal would assume that she no longer wanted to come to the hearing and it could make a decision on her case without further notice. 5 Neither the wife, who was the primary applicant and the only one with specific claims of a well-founded fear of persecution, or her husband, attended the Tribunal hearing. The appellants made no attempt to explain to the Tribunal a reason for their absence. 6 The Tribunal had before it only the material contained in the wife's written statement which I have essayed above. Without oral evidence, or further details about the specific years when certain alleged events occurred, the Tribunal member found it impossible to be satisfied of the validity and severity of the claimed abuses. Some aspects of the wife's claims 'lead the Tribunal to question whether they [were] claims which [were] grounded in the Convention', and without any opportunity to explore that with the wife in person, the Tribunal was unable to be satisfied in her favour. The Tribunal was also concerned to find out why the wife appeared to have two passports in circumstances where she had complained of the difficulty of obtaining even one. It also wished to enquire into the cause of the appellants' significant delay in seeking protection once they had arrived in Australia. In those circumstances, the Tribunal was not satisfied that the wife had a well-founded fear of persecution and consequently, her husband's application, relying as it did, on the strength of his wife's claims, also fell to be rejected. 7 The Federal Magistrate detailed a substantial delay of some two years until the appellants' joined the Lie class action (proceedings number S89 of 1999) on 31 August 2001. There was a further delay of some six months between the refusal, by Emmett J of this Court, of the appellants' application for an order nisi which had been remitted from the High Court, and their making of an application in the Federal Magistrates Court for review of the 2 July 1999 Tribunal decision. No explanation for this delay was provided to the Federal Magistrate during the course of the hearing of that application for review from which the appellants now appeal. 8 In their application before the Federal Magistrate, the appellants claimed that they were 'aggrieved' by the Tribunal's decision because: '1. The Minister is responsible for the administration of the Migration Act 1958 2. The decision requires her to take steps which are unlawful. 3. The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision. Particulars The Tribunal misconstrued or misapplied the law concerning its determination.'