BRGAA of 2009 v Minister for Immigration and Citizenship
[2011] FCA 157
•28 February 2011
FEDERAL COURT OF AUSTRALIA
BRGAA of 2009 v Minister for Immigration and Citizenship [2011] FCA 157
Citation: BRGAA of 2009 v Minister for Immigration and Citizenship [2011] FCA 157 Appeal from: BRGAA of 2009 v Minister for Immigration & Anor [2010] FMCA 538 Parties: BRGAA OF 2009 v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: QUD 359 of 2010 Judge: COLLIER J Date of judgment: 28 February 2011 Date of hearing: 28 February 2011 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 26 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First and Second Respondents: Ms A Wheatley Solicitor for the First and Second Respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 359 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: BRGAA OF 2009
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
28 FEBRUARY 2011
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 359 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: BRGAA OF 2009
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
28 FEBRUARY 2011
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an appeal against the decision of Burnett FM delivered on 6 August 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 9 March 2009. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.
BACKGROUND
The appellant is a citizen of the People’s Republic of China (PRC) who arrived in Australia on 2 August 2008. On 10 September 2008 the appellant lodged an application for a protection visa under s 65 of the Migration Act 1958 (the Act). A delegate of the first respondent refused the application for a protection visa on 6 November 2008. On 8 December 2008 the appellant applied to the Tribunal for a review of that decision.
In her protection visa application, the appellant claimed to be in fear of religious persecution because she is a practitioner of Falun Gong. She claimed that in August 2003 she was arrested by police who proceeded to beat and kick her. She claimed the police attacked her forehead with a flashlight and took her to jail where she was again beaten during a long interrogation. She claimed that while incarcerated she was not given food, which, in conjunction with the beatings, resulted in a serious deterioration to her health. She claimed that after several months she was transferred to Guangdong Forth (sic) Labour Camp for four months where she was subjected to brainwashing. She claimed after her release she continued to be monitored by the local government and police. She claimed that two months after this ordeal she returned to her work as a teacher.
The appellant claimed she borrowed money from relatives and friends, and bribed a police officer to clear her criminal record, so she could travel to Australia. The appellant stated that after arriving in Australia, she applied for a refugee visa in order to avoid a risk of being jailed in her country.
REFUGEE REVIEW TRIBUNAL
The appellant was scheduled to appear before the Tribunal on 13 February 2009. A Hearing Notice was issued to the appellant on 9 January 2009 advising of the date, time and location of the hearing. The Notice was sent to the authorised recipient. The appellant did not return the Response to Hearing invitation form and, as she did not appear at the hearing, no reason was provided for her non-attendance. Consequently, the Tribunal proceeded to its decision in the appellant’s absence, and found that it was not satisfied that the appellant was a person to whom Australia owed protection obligations.
The Tribunal found that there was no evidence before it that the appellant suffered persecution or was inhibited in her employment as a teacher in the five years since the alleged arrest and detention in August 2003. The Tribunal noted the lack of evidence explaining why the appellant began practising Falun Gong and the absence of any reference in the appellant’s statement concerning the philosophical basis of Falun Gong.
Further, in light of the absence of the appellant from the hearing, the Tribunal was unable to determine on the material before it alone whether the appellant was a genuine Falun Gong practitioner or whether her claims were concocted so as to invoke Australia’s protection responsibilities. Similarly, because of the appellant’s absence from the hearing, the Tribunal was unable to satisfy itself that the appellant was ever arrested and detained by the Chinese authorities, and whether she holds genuinely a fear of persecution were she to be returned to the PRC for a Convention-based reason. The Tribunal found that the appellant’s failure to attend both a scheduled interview with the Department of Immigration and the review hearing scheduled by the Tribunal seriously impacted the appellant’s bona fides in relation to her application for protection.
The Tribunal was not satisfied that the limited detail provided in the appellant’s application to the Department evoked protection obligations in Australia. The Tribunal noted that the evidence before it suggested the appellant had little difficulty obtaining her passport lawfully and exiting the PRC, suggesting the appellant is not of interest to the Chinese authorities. The Tribunal noted that this finding was evidenced further by the fact that the appellant resided at the same address from the time of her alleged arrest in August 2003 and maintained her job as a primary school teacher until the time of her departure.
Accordingly, the Tribunal was not satisfied that all the statutory elements for the grant of protection were made out. Based on the evidence before it, the Tribunal was not satisfied that the appellant was a genuine Falun Gong practitioner, that she was imputed with such practice in the PRC in the past, or that she would be in the future were she to return.
For these reasons, the Tribunal affirmed the decision of the delegate.
FEDERAL MAGISTRATES COURT
On 14 April 2009 the appellant filed an application for judicial review of the Tribunal’s decision. In an amended application filed on 17 July 2009 the appellant claimed the following:
1. The Decision Maker has not taken into account a relevant consideration;
2.The Decision Maker has made an erroneous finding, or reached a mistaken conclusion and/or not taken into account a relevant consideration;
3. The Applicant was denied natural justice
Particulars
(i)In relation to Ground No. 1, as set out above, the decision maker states in paragraph 34 of his Decision ‘….there is no evidence that suggests she had difficulty in the obtainment of her passport or problems exiting the PRC’. The Decision Maker in his decision did not consider that the Applicant had stated (para 24 of Decision) that her criminal record was expunged, as the Applicant had advised that she had paid a colleague ‘to have her so called criminal record washed and for a passport to be issued’. (paras 11 and 17 of Applicant’s Affidavit). The Applicant was able to exit China, without hindrance, because her criminal record no longer existed, as it had be cleaned away by her colleague, who had been paid by the Applicant, in order to ensure that her record was clean. In this regard, the Decision Maker has not taken into account a relevant consideration.
(ii)Further in relation to the aspect of the Decision Maker’s Decision as set out above and in relation to Ground No. 2, the Applicant has stated that she paid a colleague the amount of 50,000 RMB, in order for him/her to obtain a passport. This is set out at para 24 of the Decision Maker’s Decision and also at para. 11 of the Applicant’s Affidavit. In this regard there is evidence that the Applicant has obtained her passport illegally, given that she paid a colleague a significant amount of money to obtain the passport for her and this would be illegal in any jurisdiction in the world. The Decision Maker has stated at para 34 of the Decision “The evidence before this Tribunal indicates that the applicant obtained a passport lawfully… … …” As stated above this is not correct and therefore the learned Decision Maker has made an erroneous finding, or reached a mistaken conclusion and/or not taken into account a relevant consideration. Accordingly the relevant consideration would be that the Decision Maker has not taken into account that the Applicant paid an unlawful bribe to a colleague, in order for the colleague to procure a ‘legal’ travel document, namely a passport, which was duly obtained.
(iii)In relation to Ground No. 3, because the Decision Maker did not take into account the factors mentioned above, the Applicant was denied natural justice. While it may have been that other factors were against the Applicant, the Applicant’s case was unable to be properly evaluated, because of the jurisdictional errors outlined above and therefore the Applicant was denied natural justice.
(iv)The Decision Maker, and therefore the Respondent has made gross jurisdictional errors and therefore the Privitive Clause, as set out in s.474 of the Migration Act 1958, is inoperable.
The appellant’s amended application refers to and relies upon an affidavit filed by her on 17 July 2009. The respondent objected to the affidavit and it became the subject of oral submissions at the Hearing. Ultimately the Federal Magistrate did not allow the appellant to read her affidavit filed 17 July 2009 and it was not admitted into evidence.
In respect of ground 1, the Federal Magistrate acknowledged that although the Tribunal’s reasons contained a restatement of the applicant’s evidence, the matter of the issue of the passport was only addressed at para 34 of the decision where it stated the applicant had lawfully obtained a passport. However, the Federal Magistrate went on to note that while it was open to the Tribunal to adopt a benign view of the evidence (as contended for by the appellant), it was also open for it to draw a more sinister conclusion. In this regard, to draw the adverse conclusions that it did, the Tribunal must have either rejected the evidence as false or otherwise have drawn an adverse inference.
The Federal Magistrate identified the considerable difficulty experienced by the Tribunal in assessing the appellant’s evidence because of the appellant’s failure to appear at the hearing. In light of this, the Federal Magistrate concluded that it could not be fairly submitted that the Tribunal was not alive to the need to resolve the inconsistency of the appellant’s evidence by a factual finding as one of the reasons for its decision. Further, the Federal Magistrate explained that the Tribunal appeared to move promptly from para 34 to its conclusion after having disposed of its concerns about the veracity of the appellant’s claims regarding her membership of Falun Gong and her consequent arrest. Accordingly, the Federal Magistrate determined that it was unreasonable to conclude that the Tribunal did not identify its rejection of the appellant’s evidence as a reason for its findings and that in doing so its reasons for so rejecting that evidence were laid out.
The Federal Magistrate deemed ground 2 incompetent insofar as it sought to incorporate new material which was ruled inadmissible. Further, what remained was merely a restatement of ground 1. In relation to ground 3, the Federal Magistrate concluded that it did not advance the appellant’s appeal beyond the matters addressed in ground 1.
The Federal Magistrate also acknowledged a further ground advanced by the appellant relating to an acknowledgement letter forwarded by the Tribunal to the appellant. The appellant submitted that the request to respond to certain matters “immediately” contravened s 424B(2) of the Act in that it was not a reasonable period for compliance. In determining that this ground also failed, the Federal Magistrate noted that the letter was purely an administrative exercise preliminary to the review.
Having found that the Tribunal did not fail to consider a relevant consideration, the Federal Magistrate dismissed the application for review.
APPEAL TO THIS COURT
By Notice of Appeal filed on 27 August 2010, the appellant raised the following grounds of appeal against the decision of Burnett FM:
1.Federal Magistrate BURNETT failed to consider the Second Respondent did not exercise its jurisdiction by not observing procedures which it was required by the Act to observe.
2.Federal Magistrate BURNETT failed to consider it is impossible for the appellant to provide evidence from China to demonstrate the appellant was jailed in China.
3.Federal Magistrate BURNETT failed to consider the Second Respondent was required to provide particulars of the information that was the reason or part of the reason for affirming the decision by Migration Act 1958.
CONSIDERATION
At the hearing before me the appellant was self represented, while the Minister was represented by Counsel.
In oral submissions, the appellant contended, in summary, as follows:
·she was not satisfied with the decision of the tribunal;
·the information she had given to the Tribunal was true;
·she had not obtained evidence because she had been “in a rush”;
·she cannot stay in China anymore.
In my view, however, the appellant’s grounds of appeal cannot be substantiated.
In her first ground of appeal, the appellant contends that the Federal Magistrate failed to consider whether the Tribunal failed to exercise its jurisdiction by not observing statutory procedures. The appellant has not particularised the procedures the Tribunal failed to observe. In my view the vagueness of this ground of appeal precludes a finding in the appellant’s favour. In any event, however, I am unable to identify any incorrect application of legal principles by the Tribunal in determining the appellant’s application.
In respect of the second ground of appeal, namely that his Honour below failed to consider difficulties faced by the appellant in obtaining evidence from the PRC, in reality the failure of the appellant to appear either at the interview with the Department or the hearing before the Tribunal means that the appellant has not previously sought additional time to provide further evidence or indeed brought any difficulties she has had in obtaining material to the attention of either the Department or the Tribunal. I am unable to identify any jurisdictional error in respect of this ground of appeal.
Finally, the reference to the alleged failure of the Federal Magistrate in respect of provision of particulars of information by the Tribunal appears to be a reference to the requirement of the Tribunal to comply with s 424A of the Act. On the material before me however I am unable to identify any failure by the Tribunal to comply with the section. Specifically, the appellant has not identified the “information” which allegedly should have been the subject of provision of particulars. It does not appear to be in dispute that the appellant did not contact the Tribunal, or provide any other evidence in relation to her failure to attend the scheduled oral hearing. The only information available to the Tribunal was the completed protection visa application form, and the accompanying single page statement. This material would, however, fall into the exception provided by s 424A(3)(ba) of the Act.
It is unfortunate that, for reasons which are not clear, the appellant failed to appear before either the Department or the Tribunal in respect of her application. In the circumstances the Tribunal, quite properly, determined the application on the material before it.
No jurisdictional error attends the decision of the Tribunal, and I can identify no appellable error in the reasons of the learned Federal Magistrate.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 28 February 2011
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