NAZW v Minister for Immigration

[2005] FMCA 1233

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAZW v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1233

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – whether the RRT acted fairly in proceeding in the absence of the applicant considered – common law fair hearing rule excluded by s.422B of the Migration Act 1958 (Cth) – application dismissed.

Migration Act 1958 (Cth), ss.57, 422B, 424A, 425, 425A, 426A

NAJT v Minister for Immigration [2005] FCAFC 134
WAJR v Minister for Immigration [2004] FCA 106

Applicant: NAZW

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG882 of 2004

Judgment of: Driver FM

Hearing date: 13 September 2005

Delivered at: Sydney

Delivered on: 13 September 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:            Dr M Allars

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG882 of 2004

NAZW

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”).  The decision was made on 28 November 2003 and handed down on 23 December 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of persecution based upon his practice of Falun Gong.  Relevant background facts are set out in paragraph 2 of written submissions prepared on behalf of the Minister by Dr Allars.  I adopt that background for the purposes of this judgment:

   The applicant, who is a citizen of the People’s Republic of China (“the PRC”), sought a protection visa on the ground that he had a well founded fear of persecution on the ground that he was a Falun Gong practitioner.

   The applicant failed to appear at the RRT hearing. The RRT:

   i)was not satisfied that the applicant was a Falun Gong practitioner or that he suffered the persecution he claimed, or that he had fled China for that reason;[1]

   ii)was not satisfied that the applicant would not return to the PRC because he feared persecution there due to his Falun Gong activities in the PRC or in Australia;[2]

   iii)found that the applicant’s claims were unclear and lacking in detail;[3]

   iv)found that the applicant made no claim that he himself was harmed or threatened by reason of his practice of Falun Gong;[4] and

   v)found that the applicant left the PRC for Thailand and returned to the PRC between December 2002 and March 2003 before leaving for Australia although he claimed persecution in PRC such that he had to flee in March 2003.[5]

   The RRT concluded that the applicant was not a person to whom Australia has protection obligations.[6]

   [1]  Relevant Documents (“RD”) 66.4.

   [2]  RD 66.5.

   [3]  RD 66.6.

   [4]  RD 66.7.

   [5]  RD 66.9 – 67.1.

   [6]  RD 67.3.

2. There have been several judicial review applications filed in this case.  The form of application ultimately relied upon by the applicant was his further amended application filed on 5 September 2005.  The only jurisdictional error apparent on the face of that application is an assertion that the RRT overlooked some of the applicant's claims.  There is no substance to that assertion.  The applicant's claims were considered by the RRT in making its decision.  I agree with and adopt for the purposes of this judgment paragraphs 3.19 to 3.24 of the Minister's written submissions:

   The RRT affirmed the delegate’s decision because the evidence available to it in support of the applicant’s claims was unclear and lacking in detail.[7] It was not satisfied on the material before it that the applicant had made out his case.

   The claim that the RRT failed to take into account the applicant’s claims cannot be established, given the reasons of the RRT.

   The RRT took into account that the applicant claimed that after a visit by “plain clothesmen”, some people practising Falun Gong in his hometown of Gucheng were taken away by the authorities.[8] He did not claim that he himself attracted particular adverse attention from the Chinese authorities.[9]

   The applicant claims that the RRT failed to take into account his claim that he suffered selected harm from the local police station. He did not make this claim. He claimed that [a named individual] was taken away by local police directly from the station when he was tutoring the applicant and others, and that as far as he knew [that person] was secretly judged and sentenced. The RRT took this claim into account.[10] However the applicant did not claim that he himself was selected on that occasion, or on any other occasion, for mistreatment by the police.

   The applicant claims that the RRT failed to take into account the applicant’s claim that penalties were imposed on him before he left. The applicant did not make any claim of this kind. He claimed he paid 50,000 yuan for a passport and visa to Australia.[11]

   The RRT did not fail to take into account any claim made by the applicant. No error is established.

   [7]  RD 66.6

   [8]  RD 29.6, 61.4, 66.8.

   [9]  RD 66.8.

   [10]  RD 61.3.

   [11]  RD 29.6.

3. The applicant had in an earlier form of his judicial review application asserted procedural unfairness.  It was in the light of that allegation that I declined an interlocutory application by the Minister to summarily dismiss the judicial review application as disclosing no reasonable cause of action.  It occurred to me that there was an arguable case of procedural unfairness based upon the facts that the applicant had nominated an authorised recipient for the purposes of his RRT application and had provided two telephone numbers and a facsimile number for his migration agent in his application form (RD 45). 

4. The RRT made its decision in the absence of the applicant in reliance upon section 426A of the Migration Act 1958 (Cth) (“the Migration Act”). The facts are explained in the RRT reasons for decision at page 61 of the court book. The presiding member said:

   On 15 October 2003 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone[12]. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 25 November 2003.  The letter was sent to the applicant's authorised recipient as listed on his application for review and a copy was sent to the applicant's residential address as listed on that application.  The copy sent to the applicant's residential address was returned to the Tribunal marked, "insufficiently addressed"[13].  On 18 October 2003 the applicant advised the Tribunal that he would be attending the hearing[14]. The applicant did not however attend the hearing or contact the Tribunal to explain his failure to attend. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   [12] see RD 50

   [13] the envelope appears at RD 52

   [14] RD 53

5. It appeared to me on the basis of that statement that there had been no attempt by the RRT to contact the applicant’s agent, Mr Meng, by telephone or facsimile to inquire about the absence of both him and the applicant at the hearing.  The question in my mind was whether that failure was procedurally unfair.  In the light of the decision of the Full Federal Court in NAJT v Minister for Immigration [2005] FCAFC 134, in particular in relation to a perceived obligation on a decision-maker to make a telephone inquiry following an invitation issued under s.57(2) of the Migration Act, I considered that a hearing on this issue was necessary.

6. Dr Allars has addressed this issue in paragraphs 3.1 through to 3.18 of her written submissions. There is a typographical error in paragraph 3.11 of those submissions in that the reference to section 424A(2) should be to section 425A(2). Relevantly, Dr Allars distinguishes this case from NAJT in that in the case of an invitation issued under s.57 there was no prescribed mode of invitation, whereas, in the present case, the circumstances are dealt with by s.425A(2). It appears that by sending the hearing invitation to the applicant's authorised recipient in the prescribed form the RRT met its statutory obligation under s.425 to invite the applicant to a hearing.

7. The RRT believed that the applicant had accepted the hearing invitation.  The form of acceptance on page 53 of the court book is potent evidence of that acceptance.  The applicant today, from the bar table, denied that the signature on the bottom of the response to hearing invitation form was his.  I pointed out to him that the signature appeared to be the same as his signature on the RRT application at page 47 of the court book.  He maintained that the signature on page 53 was not his.  He ventured the opinion that his migration agent, Jack Meng, may have signed the form on his behalf.

8. While I do not exclude that possibility, any default or misbehaviour on the part of the applicant's migration agent cannot invalidate the decision of the RRT. There was nothing before the RRT to indicate that the applicant did not want to attend the hearing. Even if there had been, the RRT would have been entitled to proceed in the applicant's absence. There was nothing before the RRT that should have stimulated a further enquiry. Nothing was overlooked. The RRT had invited the applicant to a hearing in accordance with its statutory obligation and, having met that obligation, the RRT was entitled, pursuant to s.426A of the Act, to proceed in his absence.

9. That section does not require the RRT to proceed in the absence of an applicant. There may be circumstances, as here, where it is at least desirable for an attempt to be made to contact the applicant's migration agent to see if there was any problem. There may be circumstances where, under the general law fair hearing rule, such an inquiry is necessary. Whether that was so in this case is unnecessary for me to decide; that is because section 422B applies. That section provides that subdivision 4 of part 7 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

10. I have on several occasions expressed the view that this Court is bound by the decision of the Federal Court in WAJR v Minister for Immigration [2004] FCA 106 on the interpretation of s.422B. That is a narrow interpretation limiting the operation of the section to circumstances where the manner in which the RRT proceeded is governed by a provision of division 4 of part 7. In the present case, even on that narrow construction, the common law fair hearing rule is excluded. That is because the manner in which the RRT proceeded is governed by ss.425, 425A and 426A of the Migration Act. Having met its statutory obligations and notwithstanding anything in the common law fair hearing rule, the RRT was entitled to proceed in the absence of the applicant pursuant to s.426A.

11. The only remaining issue that appeared to me potentially relevant to this matter was whether the RRT breached s.424A of the Migration Act in not notifying the applicant of the information contained in his protection visa application upon which the RRT relied in coming to its decision. It is clear that that information was critical to the outcome of the case before the RRT. However, it is also clear that that information was adopted in writing by the applicant for the purposes of his RRT application (see RD46).

12. In these circumstances, the information fell within the exception in section 424A(3)(b) of the Migration Act and disclosure to the applicant was not required. The applicant was unable to point to any other potential jurisdictional error in his oral submissions. Those submissions were directed to the question of whether or not he is a refugee.

13. I find that the decision of the RRT is free from jurisdictional error and hence it is a privative clause decision.  The judicial review application must be dismissed and I do so. 

14. The application having been dismissed, costs should follow the event.  Dr Allars sought an order for costs fixed in the sum of $5,500.  Taking into account the Minister's lack of success on her summary dismissal application, a reduced amount is appropriate.  The applicant enquired about arrangements for paying costs, but did not wish to make any submissions.  I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  15 September 2005