NAZM v Minister for Immigration

[2005] FMCA 1594

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAZM v MINISTER FOR IMMIGRATION [2005] FMCA 1594

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. 

Migration Act 1958, ss.425, 425A, 426, 441A, 441C & 441G

VEAN of 2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCAFC 311
Makhu v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCA 221
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162

Applicant: NAZM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 469 of 2004

Judgment of: Barnes FM

Hearing date: 26 October 2005

Delivered at: Sydney

Delivered on: 26 October 2005

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Nil

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Refugee Review Tribunal be joined as second respondent to the proceedings. 

2. That the application is dismissed. 

3. That the applicant pay the first respondent's costs fixed in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG469 of 2004

NAZM

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 (the Tribunal) handed down on 10 December 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. 

2. The applicant arrived in Australia in January 2003 and applied for a protection visa.  It is relevant to note that in connection with that application she authorised a person to act on her behalf and provided an address for that person and also her own address.  Her application was refused by a delegate of the respondent.  That refusal was notified to her at the residential address and the address of her agent that she had provided.  The applicant then sought review by the Tribunal. 

3. In that application she provided the same residential address as she had provided to the Department. She provided as her mailing address the address of the person listed as her authorised recipient.  The Tribunal wrote to the applicant at the address of her authorised recipient advising that it had received her application.  Importantly on 16 October 2003 it also wrote to her authorised recipient and sent separate letters to her mailing address and to her last notified residential address.  Included in the bundle of documents before the court is a copy of the letter of 16 October 2003 sent to those three addresses as shown in registered post records from the Refugee Review Tribunal.  In that letter the Tribunal indicated that it had considered the material before it in relation to the application but was unable to make a decision in the applicant’s favour on that information alone.  It invited her to attend a hearing on 12 November 2003.  The letter went on to advise her that if she did not attend the hearing and the Tribunal did not postpone it, it could make a decision on her case without further notice.  Copies of these letters were dispatched by the Tribunal on 16 October 2003, the date of the letters. 

4. On 23 October 2003 the Department received a completed change of address form which provided a new residential address in the suburb of Campsie for the applicant.  On 5 November 2003 the Tribunal received a faxed letter from the applicant's authorised recipient (a migration agent) headed ‘Re Address’ and stating: “As per your required, please find the attached address”.  The address provided is a flat number which was 1802 at an address in central Sydney (rather than 1801 which was the flat number in the original residential address) provided by the applicant to the Tribunal in the review application. 

5. There is nothing in the material before the court to indicate that there was any communication by the Tribunal with the migration agent prior to 5 November 2003 to precipitate this letter.  However on 5 November 2003 the Tribunal wrote to the applicant at the home address in the review application, the mailing address and the address of her authorised recipient and also to the residential address that had been provided to the Department on 23 October indicating that it had come to their notice that she may have changed her address.  The letter provided the last address details and asking the applicant to advise the Tribunal if the addresses were no longer correct.  The Tribunal went on to state that if it had not heard from the applicant by 21 November 2003 it would assume her addresses had not changed from the ones shown in the letter. 

6. On 12 November 2003 the invitation to a hearing sent to the applicant's residential address was returned to the Tribunal.  The applicant did not attend the Tribunal hearing.  A checklist headed ‘No Reply To Hearing Invitation’ records the sending of invitations and beside the box ‘Applicant Telephoned If Applicable’ are written the words ‘switched off’.  The document also records that the adviser was contacted for a more recent address. 

7. On 18 November 2003 the Tribunal wrote to the applicant at the mailing address provided, indicating that it had made its decision and would hand it down on 10 November 2003.  This letter was also sent to the applicant's authorised recipient. 

8. On 21 November 2003 the Tribunal received a fax from the applicant's migration agent advising of a change of address to the Campsie address which had previously been notified to the Department.  A change of address form to this effect was provided.  On 10 December 2003 the Tribunal handed down its decision. 

9. The applicant's claims to fear persecution were made initially in a statement attached to her original protection visa application.  She claimed, in short, to fear persecution because of her association with Falun Gong.  Referring to the background of Falun Gong in China, she claimed that in December 1999 she attended a Falun Gong meeting and the following day she was detained and questioned by the police for five days; that thereafter she continued to participate in Falun Gong activities involving demonstrating against government policy, recruiting new members and sending out propaganda; that in the meantime the government had persecuted her and that she had been questioned two times about her involvement with Falun Gong. 

10. The applicant claimed that after 23 February 2001 she told everyone in her office and some ‘customs’ (and this may be a reference to customers) that the Tiananmen massacre was a scheme and that as a result, the leader of the company she worked for warned her she would be reported to police and replaced if she insisted on practising Falun Gong. 

11. She travelled to Thailand in 2001 to participate in a meeting.  She was appointed to be head of a group in a district of the city from whence she came in China.  She claimed that she secretly recruited new members after returning to the Peoples Republic of China; that she visited Australia in December 2002, by arrangement of the Falun Gong organisation to communicate with the local organisation and that she organised a meeting on her return at which she described the situation in Australia and that she arranged for activities in 2003. 

12. She claimed that in January 2003 her position as head of the Falun Gong organisation in the local district was exposed to the police and that she fled to Australia.  She claimed that the police in the Peoples Republic of China started to investigate her two days after her departure and that her mother told her that her Falun Gong documents and tapes had been seized.  She claimed to fear arrest, torture and gaoling if she returned to China. 

13. In a letter sent to the Tribunal in support of her application for  review the applicant's migration agent reiterated several points of her original claims; indicated that she did not carry Falun Gong material with her because it was dangerous to go to the airport with it and claimed that she had been able to exit China a few times before January 2003 because the authorities did not stop members of Falun Gong exiting China except for key leaders of the organisation. 

14. The Tribunal reasons for decision record the applicant's claims and the fact that she was invited to attend a hearing by invitation sent to her authorised recipient, and to her residential address and that although the copy of the invitation sent to the then notified residential address was returned unclaimed, the invitation sent to the authorised recipient was not and that no response was received to the invitation. 

15. The Tribunal accordingly proceeded to decide the matter on the papers without taking any further steps to allow the applicant to appear before it pursuant to section 426A of the Migration Act 1958.  While the Tribunal accepted that the Chinese Government had sought to suppress the Falun Gong movement since 1999 and targeted certain practitioners it was not satisfied as to the applicant's claims.  In particular, the Tribunal found that certain important aspects of the applicant claims lacked detail as described (including a lack of information about her knowledge of the philosophy of Falun Gong or its exercises, and detail of her activities either in China or in Australia). 

16. Given such lack of detail and without the opportunity to explore the applicant's claims at the hearing, the Tribunal was not willing to accept the applicant's mere assertions that she was a Falun Gong leader who came to the adverse attention of the authorities in China.  Specifically, it was not satisfied that the applicant was ever a Falun Gong practitioner, an active member or head of a Falun Gong group, questioned by the police or under investigation because of her Falun Gong activities.  It was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if she returned to China. 

17. The applicant sought review by application filed in the Federal Court on 7 January 2004.  In her application she makes a number of general and unparticularised claims.  The matter was transferred to this court.  The applicant was ordered to file written submissions.  She did not do so and today in court she made no oral submissions despite being given the opportunity to do so and to respond to the respondent's oral submissions. 

18. The contention in the application is that the Tribunal ignored parts of the applicant's claims in the statement attached to her application for a visa and, in doing so, fell into jurisdictional error in a number of ways.  The Tribunal referred to the applicant's claims made in connection with her protection visa application and summarised the essential aspects of those claims.  On the material before me I am not satisfied that in so doing the Tribunal failed to take into account relevant considerations, reached a decision that could not reasonably have been reached or otherwise fell into jurisdictional error in the manner in which it considered the applicant's claims.  The findings that it made in relation to the lack of detail in the applicant's claims were open to it on the material before it and no jurisdictional error is established in the manner in which the Tribunal dealt with the applicant's claims either as made in the protection visa application or as elaborated upon in the statement made by her migration agent in support of the review application. 

19. While the application takes no issue with the Tribunal's procedure in proceeding pursuant to section 426A of the Migration Act to make its decision on the review without taking further action to enable the applicant to appear before it, the legal representative for the respondent properly addressed this issue in submissions. As set out above the Tribunal invited the applicant to attend a Tribunal hearing as required under section 425 of the Act. The notices of invitation to appear complied with section 425A of the Act which in turn directs that the notice must be given by one of the methods specified in section 441A (see in particular sub-section (4)). The invitation to a hearing was sent inter alia, to the applicant's authorised recipient. Indeed, the letter of 16 October was also sent to the mailing address last notified to the Tribunal as well as to the last notified home address for the applicant. While it appears that there was subsequently a change of address by the applicant which was notified to the Department (although not the Tribunal) there is nothing in the material before the court to suggest that there was any change in the mailing address or address of the authorised recipient. The letter inviting the applicant to a hearing was sent correctly, not only to the last notified home address but also to the mailing address and the authorised recipient. It was despatched within three days of the date of the invitation. Consistent with section 441C(4) the applicant is taken to have received such invitation. I also note section 441G in relation to notification of the authorised recipient. The Tribunal also notified the authorised recipient at the address provided.

20. On the material before me there is nothing to suggest that the Tribunal failed to comply with its obligations in relation to inviting the applicant to a hearing or that it was not entitled under section 426A of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (See VEAN of 2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCAFC 311 at [38] and Makhu v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCA 221 at [11]).

21. In any event, as noted above, the applicant makes no allegations nor does she put forward any evidence that puts receipt of the invitation to the hearing in issue or, indeed, raises any concern about the manner in which the Tribunal proceeded to make its decision in the absence of her attendance at a hearing. 

22. As no jurisdictional error has been established, the application must be dismissed.  I will hear submissions in relation to costs.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The respondent seeks that she pay costs in the sum of $5,000.  The applicant told the court that she is married, living on a pension, shortly to give birth and does not have enough money to meet such costs.  However, the applicant's lack of funds is not a reason for departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent, although it may be a matter to be taken into account by the respondent in determining when and how to seek to recover costs. 

2. As to the amount sought, I consider that the amount of $5,000 is somewhat excessive, given the nature of this case and the absence of any involvement of counsel and comparing it with other matters of the same or similar nature.  I consider that an appropriate amount for costs to be fixed is the sum of $4,000.  For the sake of completeness in light of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, I also consider that the Refugee Review Tribunal should be joined as a party.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  7 November 2005