Chen v Minister for Immigration and Multicultural Affairs

[2001] FCA 1555

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 1555

MIGRATION – Application for a protection visa – whether extension of time granted under s 424B(4) of the Migration Act 1958 (Cth) - where applicant invited, pursuant to s 424, to provide documents to the Tribunal – where documents not provided within time allowed – where Tribunal waited a further six weeks before reaching a decision without a hearing.

Migration Act 1958 (Cth) s 424B(2)
Migration Regulations reg 4.35B(2)

MAO LONG CHEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1025 of 2001

MOORE J
5 NOVEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1025 of 2001

BETWEEN:	MAO LONG CHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE OF ORDER:	5 NOVEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondent’s costs.

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	N 1025 of 2001

BETWEEN:	MAO LONG CHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	5 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an application by Mao Long Chen (“the applicant”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 6 June 2001. In that decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant the applicant a protection visa.  The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).

   Background

2. The applicant is a citizen of the People’s Republic of China, who arrived in Australia in January 2000.  On 18 February 2000 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) (“the Act”). On 19 June 2000 a delegate of the Minister refused the protection visa and on 21 July 2000 the applicant applied to the Tribunal for review of that decision.

   The Tribunal’s reasons

3. The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and case law.  In a section of the decision headed “Claims and Evidence”, the Tribunal summarised the claims made by the applicant in his application for a protection visa, his written submissions in support of the application and his written submissions in support of the application for review. 

4. The Tribunal’s summary was to the following effect. The applicant is a twenty-eight year old male who was born in Fuqing, in the Fujian province of China.  He was married in 1994 in Fuqing, and his wife is still resident there.  He is a member of a family of Christians who have, for generations, belonged to the True Jesus Church.  In 1989 the applicant was involved in the pro-democracy movement and instigated demonstrations attended by hundreds of high school students.  As a result of his involvement he was arrested and detained in June 1989.  Three months later, in September 1989, he was transferred to a county jail where he was made to carry out “reform through work” for six months, during which time he was physically assaulted.  On his release in March 1990 he continued his schooling and graduated in July 1992, though “without a formal certificate of graduation”.  He stated that his case is still to be determined.

5. During December 1992 local authorities destroyed all “genuine” bibles, but the applicant’s father was able to procure one from a relative.  The applicant retained the bible until the relative requested its return.  He then made copies of it.  The applicant kept some of the copies and distributed the rest.  Soon after he was reported to the authorities for practising religion “without authority approval”, and was placed in detention for three months.  In March 1993, the applicant returned home to farm.  He maintained his religious beliefs and practices, copying and distributing two hundred new testaments, one of which he retained.  He also wrote a book which he called “Meditating True Jesus Church”.  In 1995 he studied to become a carpenter, and was employed as such until September 1998.  He completed his tertiary qualifications in 1998 but his results were not recognized because of his previous “dissident” activity.  In September 1998 he was appointed a clergyman by his underground church and continued in this role until his departure from China in December 1999.  During this time the applicant wrote two articles, in 1998 and 1999, which were critical of the authorities and which, as a result, attracted attention.  He was able to avoid arrest because the articles were typed and not handwritten, preventing the authorities from identifying the author.  The applicant then took steps to leave China, which he did illegally and by travelling to Indonesia where he utilized the services of a person who provided him with a false Indonesian passport.  He then travelled from Indonesia to Australia, arriving in Melbourne in January 2000 without the false passport, which he claimed was kept by the person who “brought him to Australia”.

   The Tribunal’s findings

6. The Tribunal, in a section of its decision titled “Findings and Reasons”, summarized the evidence provided by the applicant to establish his identity.  It stated:

   “The applicant claims to be a Chinese national.  He has provided untranslated copies of documents in Chinese purportedly a driver’s licence, a birth certificate, a marriage certificate, and an identity card in support of that claim.  However, the applicant was invited to provide the originals and translations of these documents, but has failed to do so.  I am unable to give these documents weight as to the identify of the applicant.  The applicant also claims to have a valid Chinese passport.  However, the applicant has not provided the passport or a copy despite repeated invitations to do so.  The applicant has not provided a photograph with his protection visa application, as he was required to do.”

   The Tribunal referred to the applicant’s failure to attend the departmental interview, as well as the failure to provide additional information requested by the Tribunal.  It went on:

   “The documents which the applicant has provided … contain photographs but are untranslated.  I am unable to accept that they confirm the identity of the applicant in the absence of English translations and the originals, and in the absence of a contemporary photograph of the applicant and his passport.  It is my view that the applicant has had ample opportunity and invitation to rectify this problem.  He has chosen not to do so.”

7. The Tribunal concluded that, in the absence of the information referred to above, it was unable to accept both that the applicant was who he said he was or that his claims of persecution were authentic The Tribunal affirmed the decision not to grant a protection visa. There was no hearing at which the applicant gave evidence.

   Events leading to the decision of Tribunal

8. On 7 March 2001, the Tribunal wrote to the applicant, pursuant to s 424 of the Act, requesting that the applicant provide certain documents which included: both the original and a copy of documents the applicant had provided with his protection visa application; a copy of the book the applicant claimed to have written; the Chinese translation of the bible the applicant claimed to have completed; and a translation of the title, contents and dedication pages of both the book and bible translation. In the letter the applicant was advised that the information requested had to be received by the Tribunal by 28 March 2001.

9. In an affidavit of 16 October 2001 read in these proceedings, the applicant acknowledged that he received the request for information from the Tribunal. He said approximately 4 days before the deadline he sent to the Tribunal, by next day delivery express post, the documents requested in the letter of 7 March 2001. On 29 March, Ms Ling, a Chinese interpreter, telephoned the Tribunal at the applicant’s request to inquire whether the documents had been received. She was told that the documents could not be found on the file but that the Tribunal would look for them. It was suggested to her that the applicant might send the documents again by facsimile. Given that the documents requested and sent were originals and given the volume of material concerned, the applicant was not able to fax the documents through. The applicant assumed that the Tribunal would find his mail or contact him in writing if it was not found. The next correspondence he received from the Tribunal was notification that his application for a protection visa had been dismissed.

10. In its decision the Tribunal referred to the contact from Ms Ling and said:

    “No response was received by 28 March 2001. On 29 March 2001, a person claiming to be a Ms Ling, and who claimed to be the applicant’s interpreter, contacted the Tribunal by telephone and enquired if the applicant’s submission had been received. She was told that there was no record of a submission having been received by the Tribunal, and that the file would be checked. The file was checked, and no such submission was on the file. It was suggested that the applicant send the submission again to the Tribunal by facsimile. The interpreter did not give a telephone number upon which the applicant could be contacted. No facsimile or any other correspondence was subsequently received from the applicant.

    …

    The Act provides that the Tribunal must invite an applicant to appear before it to give evidence and present arguments (subsection 425(1)). However, this does not apply where an applicant is invited under section 424 to give additional information and does not give that information before the time for giving it has passed. Additional time, six weeks (15 May 2001), has been allowed in which the applicant could contact the Tribunal and make any submissions. No such contact occurred nor submissions made. In these circumstances, the applicant is not entitled to appear before the Tribunal (subsections 424C(1), 425(2)(c), 425(3)).

    Although the Tribunal is not compelled to proceed to a decision without offering the applicant a hearing in all cases where an applicant is invited under s 424 to give additional information and does not give the information before the time for giving it has passed, the Tribunal considers that such a course of action is appropriate in this case. The applicant has had ample opportunity to provide the additional information requested. Furthermore as the applicant did not respond to the Tribunal’s invitation, and as the Tribunal’s attempts to communicate with him have been unsuccessful, it may be inferred that further invitations to the applicant are very likely to prove fruitless. Accordingly, the Tribunal has decided to proceed to a decision on the review without taking any further action to obtain additional information from the applicant, and without inviting the applicant to a hearing.” (Emphasis added)

    Consideration of the application for judicial review

11. The issue in this application is a narrow one. It concerns whether the Tribunal extended the period the applicant had to provide information to the Tribunal, and if so, whether the Tribunal was obliged to notify the applicant of that extension. The relevant legislative provisions were, at the time, found in Division 4 of Part 7 of the Act.

12. Section 424 provided, at the relevant time, a mechanism by which the Tribunal could request that an applicant provide further information to assist in the review process. The section provided:

    “424(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

    (2)Without limiting subsection (1), the Tribunal may invite a person to give additional information.

    (3)An invitation to an applicant must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.”

13. If the Tribunal invited a person to provide information under s 424 it could make directions about the manner in which that was to be done. Section 424B provided:

    “424B(1)      If a person is:

    (a)   invited under section 424 to give additional information; or

    (b)invited under section 424A to comment on information;

    the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.

    (2)If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

    (3)If the invitation is to give information or comments at an interview, the interview is to take place:

    (a)at the place specified in the invitation; and

    (b)at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

    (4)If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

    (5)If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

    (a)a later time within that period; or

    (b)a time within that period as extended by the Tribunal for a prescribed further period;

    and then the response is to be made at an interview at the new time.”

14. If information was sought and not provided, the Tribunal had power to make a decision without taking any further action to obtain additional information.  Section 424C provided:

    “424C(1)If a person:

    (a)is invited under section 424 to give additional information; and

    (b)does not give the information before the time for giving it has passed;

    the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

    (2)     …”

15. Subject to specified exceptions, the Tribunal was obliged, pursuant to s 425, to invite an applicant to appear before it to give evidence. One exception arose when an applicant had failed to provide information to the Tribunal in response to a request under s 424. Section 425 relevantly provided:

    “425(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    (2)Subsection (1) does not apply if:

    (a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

    (b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c)subsection 424C(1) or (2) applies to the applicant.

    (3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

16. In reliance on s 425(2)(c) the Tribunal proceeded, on 16 May 2001, to reach a decision in the applicant’s case without inviting him to appear at a hearing. Counsel for the applicant submitted that it was not open to the Tribunal to adopt that course. He made the following submissions. First, the Tribunal had exercised its power under s 424B(4) to extend the period in which the applicant might respond to the s 424 request for information. Second, the Tribunal had no power to decide the matter without a hearing until the extended period had expired. Third, under reg 4.35B(2) of the Migration Regulations, if the Tribunal extended the period in which an applicant could provide the information requested under s 424, the extended period commenced on the date of notification and expired 28 days thereafter. Finally, the applicant was never notified of the extension of time and the extended period has not commenced and could not have expired. It was submitted that it was apparent on the face of the Tribunal’s reasons that an extension of time had been granted. In particular, reliance was placed on the highlighted passages in pars 26, 28 and 29 of the Tribunal’s reasons set out above at [10]. It was said to be evident in these passages that the Tribunal did not regard the time for giving additional information as having passed until the end of the further six weeks allowed. At three points in the Tribunal’s reasons reference was made to the applicant having been given “ample opportunity” to provide the information requested. It was submitted that these references also supported the inference that the Tribunal had extended the period for providing the information.

17. Counsel for the Minister submitted that there had been no extension of time under s 424B(4). He also submitted that the Tribunal has discretion to receive material from an applicant up until the time that it reaches a decision and becomes functus officio. A decision on the part of a Tribunal member to accept information, if it is provided by an applicant, after the time for providing such information has expired, does not constitute an extension of time for the purposes of s 424B(4). In this case, Counsel for the Minister submitted that the reasons for decision of the Tribunal demonstrated only that the Tribunal member was predisposed towards exercising his discretion to receive late material in favour of the applicant, in the event that such material was provided. What the Tribunal said did not demonstrate the applicant had been granted an entitlement, by the extension of time, to provide information after the original 28 March deadline.

18. The essence of the applicant’s case is that the Tribunal made a decision, pursuant to s 424B(4), to extend, for a prescribed further period, the time in which the applicant could respond to the request for information.  If the Tribunal had made such a decision, it would be obliged, pursuant to s 424, to have regard to any relevant information provided in the prescribed further period. I am not satisfied that the Tribunal made such a decision in this case.

19. The reasons for decision of the Tribunal reveal that the Tribunal did not immediately proceed to make a decision on the expiration of the time allowed for providing the information requested. Rather, the Tribunal waited a further six weeks. It is, in my opinion, reasonable to infer that it did so, at least in part, to enable the applicant to contact the Tribunal and provide the information earlier requested. This apparent willingness to receive late documents, however, cannot, in my opinion, be viewed as a six week extension of time for the purposes of s 424B(2).

20. Accordingly, the application should be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             5 November 2001

Counsel for the Applicant:	C Colbourne
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	24 October 2001
Date of Judgment:	5 November 2001