GSY18 v Minister for Home Affairs
[2019] FCA 2003
•13 November 2019
FEDERAL COURT OF AUSTRALIA
GSY18 v Minister for Home Affairs [2019] FCA 2003
Appeal from: GSY18 v Minister for Home Affairs [2019] FCCA 984 File number(s): NSD 617 of 2019 Judge(s): RARES J Date of judgment: 13 November 2019 Legislation Migration Act 1958 (Cth) ss 5AAA, 36, 414, 425, 426A, 430, 441A, 441B
1951 United Nations Convention relating to the Status of refugees
Cases cited: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Date of hearing: 13 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 36 Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondents: Ms M Perotti of Sparke Helmore ORDERS
NSD 617 of 2019 BETWEEN: GSY18
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINSTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
13 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant to pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal from the decision of the Federal Circuit Court to refuse the appellant constitutional writ relief against the decision of the Administrative Appeals Tribunal made on 17 December 2018 to affirm the decision of the Minister’s delegate not to grant the appellant a protection visa: GSY18 v Minister for Home Affairs [2019] FCCA 984.
Background
The appellant is a citizen of the People’s Republic of China. He first arrived in Australia on 8 December 2014 as the holder of a business visa and departed four days later on 11 December 2014. He returned to Australia on 10 January 2015 and on 23 March 2015 lodged his application for a protection visa.
In substance, the appellant claimed that in 2007 he had applied for a homestead plot of land that is given to male villagers when they become eligible after they turn 20 years of age. He contended that other villagers paid bribes to the local official responsible for allocation of homesteads, and that his unwillingness to pay any bribes led to him not receiving an allocation in the yearly list for about 10 years. He claimed that he made a complaint to higher officials in the local official’s department about the delay in the grant of his homestead allocation, and that, as a result, the local official was confronted by his superiors and that he then came to allocate a very remote homestead plot to the appellant.
The appellant claimed that when he complained to the local official that this homestead plot was too remote and well away, from the village, the local official demanded a bribe. The appellant claimed that he became angry, and that, as a result, the local official had his staff beat him and throw him out of his office. He claimed that because he was upset by that treatment, he wrote a letter to the relevant government department in a capital city to expose corruption of the local official and that while that complaint was pending, he first arrived in Australia for a holiday but returned home four days later. He claimed that on his return his life had been “overturned” by the allegedly corrupt local official, and that he and his subordinates frequently went to the appellant’s home requiring him to explain why he had made the complaint and monitored him thereafter. He claimed that because his family had lost freedoms of Chinese citizenship and because of his concern that the local official would take revenge upon his family, he returned to Australia under his still current visa. He claimed that he has stayed in touch with his wife and child in China while he was here.
The delegate interviewed the appellant and found him not to be a satisfactory witness. The delegate found that the appellant had provided no detail or evidence to substantiate any of the central events in his claims, but had merely made assertions about those matters in the brief and generalised statement of his claims that he had attached to his application for a protection visa and in the interview with the delegate. The delegate found that there were discrepancies between the appellant’s written statement and his evidence at the interview. The delegate found that the appellant had exaggerated his responses at the interview and caused doubt as to his credibility to the point where the delegate found that the appellant had fabricated his explanation to the delegate about why he had waited nearly 10 years before complaining to higher officials in China.
The delegate was convinced that the appellant was not a person of interest to the Chinese authorities and that State protection was available to him in China if he required it. The delegate found, after considering country information, that there was nothing to suggest that a corrupt local official could act with the sort of impunity which the appellant asserted had been exercised against him, and that, indeed, the appellant’s own account of events in China suggested that his complaints to higher authorities had resulted in them taking action in respect of the local official’s alleged corrupt activities. The delegate found, in substance, that the appellant was not a witness of truth, had provided no documentary evidence or other conclusive information to substantiate his claims that he would be harmed on return to China, and that, in any event, he could relocate to another part of China should he choose to do so. The delegate also found that the appellant had been able to leave China legally with no detrimental repercussions from Chinese authorities, which indicated that he was not a person of adverse interest to those authorities, and that, as a result, it was likely that he had manufactured his claims in order to seek a migration outcome in this country.
The delegate found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, the appellant would be subject to persecution or that there was a real risk that he would suffer significant harm within the meaning of s 36(2)(a) and (aa) of the Migration Act 1958 (Cth) and, accordingly, made the decision to refuse to grant the visa.
The proceeding in the Tribunal
On 27 May 2016 the appellant lodged, electronically, an application to review the delegate’s decision (the review application), that had been made on 20 May 2016. In the electronic application form, he gave an email address and a mobile telephone number one or other of which the Tribunal used on all subsequent occasions when communicating with him. As appeared in the Tribunal’s decision record, the appellant had lodged a copy of the delegate’s reasons with his application for review.
On 16 November 2018, the Tribunal used the email address in the review application to give the appellant an invitation letter to attend a hearing on 17 December 2018, pursuant to s 425(1) of the Act. The invitation letter informed the appellant that, first, on the material before it, it was unable to make a favourable decision on that information alone and secondly, if he did not attend the scheduled hearing, the Tribunal could make a decision on the review, without taking any further action, to allow or enable him to appear before it.
On 18 November 2018, the appellant signed his response to the hearing invitation, indicating that he intended to take part in the hearing, needed a Mandarin interpreter, but gave a different mobile telephone number to that in his review application.
On 10 and 14 December 2018, the Tribunal sent SMS reminders to the mobile telephone number in the review application, informing the appellant again of the hearing scheduled for 17 December 2018.
In the event the appellant did not attend the hearing on 17 December 2018, and the Tribunal proceeded on the same day under s 426A(1)(a) to dismiss the application for review by its written statement under s 430.
The Tribunal’s reasons (in the s 430 statement) recited the facts that it had before it. It observed that the appellant’s written statement of claims, attached to his protection visa application, were extremely brief, and that the delegate had found that his oral evidence in significant parts had inconsistencies and contradictions. It found that the invitation letter had advised the appellant that the Tribunal was unable to make a favourable decision on the material and information before it, and stated that his “…claims for protection are extremely vague, generalised and lacking in detail.”
The Tribunal then set out in some detail the questions about his claims for protection that it would have sought to raise with the appellant, had he attended at the hearing, including what, if any, harm he or his family had suffered in China. It stated that it would have also have wished to test the veracity of his claims.
The Tribunal concluded that, in the absence of the appellant availing himself of the opportunity to attend and give evidence at the hearing, having regard to all the material before it, it was not satisfied that the appellant was of adverse interest to the local official, his subordinates, any Chinese authority, or anyone else. The Tribunal was not satisfied, on the limited evidence before it, that the appellant had left China or feared returning there for the reasons that he claimed. It did not accept that he had suffered serious or significant harm in China or that there was a real chance that he would do so in the future, were he to return. For those reasons, the Tribunal concluded that Australia did not owe protection obligations to the appellant, pursuant to s 36(2)(a) or (aa) of the Act, and affirmed the delegate’s decision.
On 18 December 2019, the Tribunal notified the appellant of its decision by email sent to the email address given in the review application.
The proceeding before the FCC trial judge
On 24 December 2018, the appellant filed his application dated 23 December 2018 in the Federal Circuit Court, setting out two grounds of review, namely, that the Tribunal:
·did not accept that he had suffered serious or significant harm in China, or that there was a real chance that he would do so were he to be returned and made an incorrect decision on that finding, and;
·was not satisfied that he had a well-founded fear of persecution for any Convention reason, or was a person in respect of whom Australia owed protection obligations, which he claimed was erroneous.
He also made an affidavit on 23 December 2018, in which substance, he repeated those grounds of review.
On 31 January 2019 the appellant attended before a registrar of the Federal Circuit Court who made orders that were later also given to the appellant in writing. The orders fixed the application for hearing before the trial judge on 11 April 2019 and provided for the appellant to file and serve, by 28 February 2019, any affidavit containing additional evidence to be relied upon including a transcript of the Tribunal hearing. The directions also provided for the filing of submissions.
The appellant filed nothing in the Federal Circuit Court or, indeed, apart from the notice of appeal, in this Court.
At the hearing below, the appellant told the trial judge, from the bar table, that he had not completed the review application in the Tribunal himself but this had been done by a migration agent or lawyer, whom he named before me as a Mr Lee. He said that Mr Lee had not provided him with any information about the Tribunal hearing. The trial judge referred in his reasons to the fact that the appellant’s original application for a protection visa did not have any indication that the appellant had received assistance in completing that form or that there was any lawyer acting for him. However, that circumstance does not appear to have been relevant to the issue that the appellant raised about any assistance or lack of assistance during the proceeding in the Tribunal and his, allegedly, not receiving the invitation letter, or any notice of the hearing before the Tribunal.
His Honour found that the Tribunal had notified the appellant of the hearing at the email address given in his review application and that the Tribunal had sent the two SMS reminders to him on the mobile phone number that he had provided in that application. He found that there was no evidence to support the existence of any alleged fraud on the Tribunal in relation to the review application and that the appellant’s signature on the response to the invitation letter was inconsistent with his assertions that he had not received the email conveying that letter. The trial judge found that even if it were the case that the appellant had not received, or been told about, the invitation to attend the hearing, the Tribunal had complied with the requirements of the Act in the way in which it gave the appellant an invitation to, and notice of, the hearing.
His Honour said that the appellant’s submissions to him had not identified any relevant error by the Tribunal. He found that, in circumstances where he had failed to appear before the Tribunal, the appellant had failed to discharge the obligation imposed on him in s 5AAA of the Act, as an applicant for review, to make out his case to the Tribunal. He found that the two grounds of review in the Court below merely asserted disagreement with the Tribunal’s findings and, impermissibly, invited merits review. Accordingly, his Honour dismissed the application with costs.
This appeal
The appellant filed a notice of appeal in this court on 26 April 2019 that set out three grounds:
(1) The Tribunal Member fails to consider carefully in relation to case because I did not attend to interview.
(2) I was denied procedural fairness in connection with the making of the decision.
(3) The Tribunal does not amount to a proper basis for review in judicial review proceedings.
During the course of argument today, the appellant was not able to explain what he had in mind in relation to his third ground of appeal. He told me that Mr Lee had not given him any information about the Tribunal hearing and that, when he came to learn of the Tribunal’s decision, he had to tear a copy of the decision out of Mr Lee’s hands, resulting, as I understood him, in the actual paper document being torn as well. He said that at some stage he had received a receipt from Mr Lee for money he had paid in cash but that he had lost the receipt. The appellant told me that he had no present recollection of where Mr Lee or his office was. He said that he had not understood the process of having to give evidence about the circumstances in which he failed to attend at the hearing of the Tribunal.
I tried to explore with him how he came to file his application in the Federal Circuit Court. He told me that he went to another person who gave him assistance in preparing those documents. He also told me that he was present when the registrar made the orders on 31 January 2019 and acknowledged that he had not put on any evidence in writing, although he said that he did not understand the process.
Consideration
The first ground of appeal was not raised in writing in the application below, but clearly enough, the appellant had raised it orally and the trial judge discussed the issue in his reasons. The third ground is not intelligible. The second ground is, in substance, the subject of both grounds in the application below.
Relevantly, under s 425, if it is unable to be satisfied that it should decide the review in the applicant’s favour without a hearing, the Tribunal must invite an applicant for review to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review.
If an applicant, having been invited to appear before the Tribunal and being given notice of the day on, and the time and place at, which he was scheduled to appear fails to do so, s 426A(1A)(a) entitles the Tribunal, by written statement under s 430, to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. A notice of the invitation to the hearing under s 425(1) must be given to an applicant by one of the methods specified in s 441A (s 425A(2)(a)). Here, the Tribunal used the method prescribed in s 441A(5)(b), namely, it transmitted the invitation letter by email to the last email address that the applicant had provided to the Tribunal in connection with the review, being the email address in the review application. Moreover, the invitation physically came to the applicant’s notice because he signed the response and that was returned to the Tribunal.
At least by the time of his submissions to the trial judge, the appellant was aware that his non-appearance before the Tribunal was an important matter that required explanation if he were to be able to challenge its decision.
I am not satisfied that there is any proper basis to allow the appellant to raise a claim that, because of some allegedly fraudulent or other conduct on the part of Mr Lee, the proceeding before the Tribunal miscarried, cf: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. The appellant has put no material before me to explain, in evidence, why he did not advance in writing to the trial judge, or in any evidence before the Federal Circuit Court, or in this Court, the circumstances in which he says he was not informed of the actual hearing date.
I appreciate that the appellant is a person who is not conversant with legal forms or the technicalities of the legal system. But, in my opinion, he has not satisfactorily explained why, if he had not consciously failed to appear at the hearing in the Tribunal in response to its invitation letter, he did not raise any such ground of review before the trial judge or go back to the Tribunal and seek to have it consider his application. In addition, the appellant did not avail himself of the opportunity to put on any evidence before the Federal Circuit Court to support this contention, yet he raised it before the trial judge as a basis of his argument as to why he should succeed in having the Tribunal’s decision set aside and included it as a ground of appeal in this Court.
In all of the circumstances, it is not in the interests of justice to allow the appellant to rely on the first ground because, first, he has failed to explain why he did nothing to pursue or prepare any evidence or submissions in support of it, and, secondly, in my opinion, the ground lacks sufficient merit to warrant me adjourning the appeal so as to enable the subject matter to be explored on a proper evidentiary basis.
The third ground of appeal is unintelligible. To the extent that it contends that the Tribunal did not have jurisdiction to determine the review application, it is misconceived. The appellant applied to the Tribunal for a review of the delegate’s decision, and s 414(1) of the Act required it to review that decision because the appellant had made a valid review application.
The second ground of appeal asserts that the appellant was denied procedural fairness in connection with the making of the decision. In my opinion, this ground is without substance. The Tribunal had informed, in accordance with s 425(1), the appellant that it could not decide his review application in his favour on the material before it, and invited him to a hearing to give evidence and present arguments to persuade it to the contrary. The appellant, failed to avail himself of that opportunity. The Tribunal acted as it was entitled to do, firstly, pursuant to s 426A(1)(a) and, secondly, on the basis that it had already indicated to him that it could not decide the review in his favour without his evidence or assistance. In those circumstances, the appellant has only himself to blame for his failure to advance any more material to the Tribunal than was in what it had already indicated was insufficient to allow his review to succeed.
Conclusion
For these reasons, the appeal must be dismissed with costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 13 November 2019
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