NAWH v Minister for Immigration

[2005] FMCA 222

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAWH v MINISTER FOR IMMIGRATION [2005] FMCA 222

MIGRATION – Application to review decision of Refugee Review Tribunal – whether breach of s.426A of the Migration Act 1958. 

Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181

Applicant: NAWH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2659 of 2003

Judgment of: Barnes FM

Hearing date: 22 February 2005

Delivered at: Sydney

Delivered on: 22 February 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Nil

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs of the proceedings fixed in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2659 of 2003

NAWH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 16 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant was not present today when the matter was first called.  The matter was stood down to see if he appeared.  However he was not present when the matter was called again some fifteen minutes after the time at which the matter was listed for hearing. 

2. The applicant attended prior directions hearings in relation to this matter in the Federal Court and also in the Federal Magistrates Court at which time the matter was listed for hearing today. In the particular circumstances of this case the respondent seeks that rather than simply proceeding to dismiss the matter for non appearance the court proceed with the hearing in relation to the applicant's claims for relief as it is empowered to do under Rule 13.03A(d) of the Federal Magistrates Court Rules.

3. In the particular circumstances of this case I consider that it is appropriate to proceed in that manner.  In so doing I have considered not only the matters raised by the applicant in the amended application but also all of the material before me.  I note, in particular, that the applicant failed to attend the Tribunal hearing. 

4. The background to this application is that the applicant arrived in Australia in March 2001.  On 10 July 2002 the applicant applied for a protection visa on the ground that he had a well founded fear of persecution by the authorities of the Peoples Republic of China.  He claimed that he was a Falun Gong practitioner, that he had been detained by the authorities for a month in January 2001 as a result of such activities, that his house was watched and that if he returned to the Peoples Republic of China his life would be at risk and he would be deprived of the right to work.  He also claimed that he had continued to be involved with Falun Gong in Australia but did not provide any details of such activities. 

5. The application was refused by the delegate.  The applicant sought review by the Tribunal and did not provide any further claims.  He had the assistance of a migration agent.  On 28 May 2003 the Tribunal wrote to the applicant informing him that it had considered all of the material before it relating to his application, but that it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be conducted on 18 August 2003.  The response to hearing form was completed and returned to the Tribunal.  In that response it was indicated by or on behalf of the applicant that he intended to attend the hearing.  He requested a Mandarin interpreter. 

6. However although the applicant accepted this invitation, he subsequently failed to attend the hearing and provided no explanation to the Tribunal for his absence. In those circumstances, pursuant to section 426A of the Migration Act 1958, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

7. The Tribunal recited the applicant's claims, noted that they had been presented poorly, despite the fact that he had the assistance of a migration agent, and that the claims were vague, broad and lacking in meaningful detail.  The Tribunal found that it could not determine on the evidence before it whether the applicant had been involved with Falun Gong or of interest to the Chinese authorities as claimed or whether he had been involved with Falun Gong in Australia or intended to be so involved.  Nonetheless the Tribunal did consider the applicant's broad claim to be a Falun Gong practitioner and his claim that he would be harmed by the Chinese authorities.  It had regard to independent information in relation to the situation of Falun Gong in China and the activities which the applicant claimed he had engaged in (despite the fact that it had been unable to determine the full extent of his claimed association with Falun Gong). 

8. The Tribunal found that the applicant had not presented meaningful information on which it could be satisfied that he had been involved in activities which gave him the profile of a Falun Gong activist or of a person who would be of interest to the authorities in China consistent with the independent information.  Nor did it have meaningful information on whether he was currently a Falun Gong practitioner or intended to be involved with the group in the future.  The Tribunal could not be satisfied on the available information that the applicant would be of interest to the authorities in China due to his association with Falun Gong or that he would become such a person due to his political opinion in the reasonably foreseeable future. 

9. The Tribunal also had regard to the applicant's claim that he would be prevented from obtaining employment in China due to his association with Falun Gong.  Again it noted the absence of detail and had regard to country information.  It was satisfied that the applicant would have employment opportunities and was not satisfied the authorities would prevent him from obtaining work in the private sector due to his association with Falun Gong. 

10. It noted that the applicant had been put on notice that the Tribunal was not satisfied by the evidence he had provided.  He had not provided further information despite ample opportunity to do so.  Nor had he given the Tribunal the opportunity to explore his claims and deal with unanswered questions.  The Tribunal concluded that, in the absence of further information and on the findings it had made, it was not satisfied by the evidence before it that the applicant had a well founded fear of persecution in China for reason of religion, political opinion or any other Refugees Convention reason. 

11. The applicant filed an amended application on 10 May 2004. It raises three grounds of review but contains very limited particulars. The first ground in the amended application is that the Tribunal failed to comply with section 426A of the Migration Act 1958. The particulars are that the Tribunal acted in breach of section 426A as the applicant was denied a hearing as he was not provided with sufficient information by the Tribunal in regard to the nature and procedure of the hearing.’

12. Section 426A of the Migration Act deals with the consequences of the applicant failing to appear before the Tribunal if he is invited and does not appear at the time specified. It provides that in such circumstances the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it (although it may re-schedule the hearing). There is nothing in the material before me to suggest that there is any manner in which the Tribunal has failed to comply with section 426A. I am satisfied on the material before me that the applicant was invited under section 425 to appear before the Tribunal. The invitation to hearing was sent to the applicant at all of the addresses provided in the application for review (that is his personal address, mailing address and also another address for the migration agent). The invitation provided the necessary details as to the place and time of the hearing. There is nothing in the material before me to suggest that the requirements of section 425A (in relation to the giving of such notice) or of section 441A of the Act were not met by this invitation. Critically, the invitation was accepted by the applicant. As the applicant then failed to appear the Tribunal was entitled to proceed as it did. No error is revealed in the manner contended.

13. The second ground of review is that the Tribunal constructively failed to exercise its jurisdiction. The first particulars are that the Tribunal failed to conduct a real rather than a purported exercise of its jurisdiction to determine whether the applicant was a Falun Gong practitioner as claimed. There is no clarification of what is meant by this ground. The Tribunal reasons for decision reveal that, despite the applicant's failure to attend the scheduled hearing, the Tribunal did in fact have regard to the elements of his claim and to country information in relation to the situation in China. It properly determined on the material before it not only whether it was satisfied that the applicant was a Falun Gong practitioner as claimed but, as it was required to determine under the Migration Act, whether the applicant had a well-founded fear of persecution in China for a Convention reason.

14. The second aspect of the particulars of this ground is that the Tribunal improperly precluded itself from considering the material which supported the applicant's claim that he was mistreated in his home country by the police authorities due to his continuous Falun Gong practice.  It is not clear precisely what material is being referred to in this regard, but it is clear from the Tribunal reasons for decision and the material before the court that the applicant made claims in his protection visa application which were considered.  There is nothing in the material before the court to indicate that any supporting documentation was provided after his application was refused.  He made an application for review which simply said, ‘please see my file at DIMIA’.  As indicated, the Tribunal had regard to his claims and also to independent information in relation to the situation of Falun Gong practitioners and those who were Falun Gong activists in China. 

15. The applicant was unsuccessful before the Tribunal because it could not reach the requisite level of satisfaction to grant him a protection visa on the basis of the very limited claims and evidence before it.  As the respondent contended, the reasons reveal a careful consideration of the applicant's case as put before the Tribunal, including consideration of information from external sources.  Insofar as the applicant intends to take issue with the weight to be given to particular items of evidence, such weight is a matter for the Tribunal alone (MIMA v Indatissa [2001] FCA 181) and no error is established in the manner contended.

16. Finally, it is contended that the Tribunal's satisfaction was reached in the absence of probative material and/or logical grounds and was thereby not rationally formed.  Again, there is no further explanation of this ground.  The Tribunal was not obliged to accept at face value the applicant's brief outline of his claims and when he failed to attend the hearing, it was entitled on the material before it to reach the conclusion that it did.  It engaged in a proper analysis of his claims, considered them as far as it could on the information before it, noted the areas in which it was unable to be satisfied either for the reason that further material was not before it or because of the manner in which the claims wee presented without sufficient detail.  In such circumstances it may well be said that the inevitable consequence, and certainly not an irrational decision, was the decision of the Tribunal to reject his application.  In all of the circumstances of this case no error has been established in the manner contended by the applicant.  Nor, having considered the material before me, is it apparent that the Tribunal fell into jurisdictional error in its decision or procedures in any other manner. 

17. In these circumstances the application should be dismissed.  The respondent seeks that the applicant meet the costs of these proceedings.  Counsel was not involved but there were two directions hearings because the matter was transferred from the Federal Court to this court.  Written submissions have been prepared and issues addressed by the solicitor for the respondent.  In all the circumstances of this case

    
    

    I consider that the amount of $3,500 which is sought is appropriate. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  7 March 2005.