NBAZ v Minister for Immigration - [2005] FMCA 1763

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBAZ v MINISTER FOR IMMIGRATION

[2005] FMCA 1763

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

Migration Act 1958 (C’th)

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 All ER 498
B41/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 30
B41/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 4
SCDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531
Applicant M172 v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FMCA 23

Applicant:

NBAZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1006 of 2004

Judgment of:

Barnes FM

Hearing date:

24 November 2005

Delivered at:

Sydney

Delivered on:

24 November 2005

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the Refugee Review Tribunal be joined as second respondent to the proceedings.
That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1006 of 2004

NBAZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 8 January 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant arrived in Australia in December 2002 and applied for a protection visa. The application was refused and he sought review by the Tribunal in an application received on 6 March 2003. In his review application he provided a home address and a mailing address and nominated an authorised recipient to act on his behalf who had the same address as the nominated mailing address. He also stated in his reasons for the application, “Please see my file at DIMIA”. The applicant completed and signed the applicant's declaration.
Relevantly, the Tribunal wrote to the applicant on 17 September 2003 inviting him to a hearing on 10 December 2003. Copies of this letter were sent to the applicant's migration agent (his authorised recipient), to the applicant's mailing address and to the applicant's residential address as notified on the application for review. The letter notified the applicant that the Tribunal was unable to make a decision in his favour on the material before it and that if he did not attend the hearing and the Tribunal did not postpone the hearing it could make a decision on his case without further notice.
On 19 September 2003 the Tribunal received a Response to Hearing Invitation which indicated that the applicant wished to attend the Tribunal hearing.
The Tribunal reasons for decision record that it received a signed Response to Hearing Invitation but that on the date of the hearing there was no appearance by the applicant. Nor was there any communication with the Tribunal to explain the non‑attendance. The applicant had not made any further contact with the Tribunal. In those circumstances pursuant to section 426A of the Migration Act 1958 (C’th) the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
On 8 January 2004 the Tribunal wrote to the applicant at the three notified addresses notifying him of the Tribunal decision. On 9 February 2004 the applicant filed an application in the Federal Court seeking review of the Tribunal decision. That application was transferred to this court.
The applicant's claims are set out in a statement attached to his protection visa application. He is a citizen of the People’s Republic of China and claimed to have a fear of persecution arising essentially from his involvement in protests against the policy of “xia gang”, (i.e. ‘laid off’ or the government's policy of job cuts and reducing monetary contributions to a worker's welfare, unemployment and pension scheme).
The applicant claimed to have worked as a construction worker for a state-owned entity, that the organisation was on the brink of bankruptcy and to cut costs had ‘fired’ or laid off the applicant from his job in accordance with this policy and that his request that he be paid a reasonable amount of unemployment welfare was refused.
He claimed that in February 2001 he and other unemployed workers held a protest demonstration against the policy of being laid off outside the municipal government offices. There was a battle, the police arrived, the applicant was arrested, detained and beaten. He claimed that after his release he embarked on the ‘Long March’ to the Provincial Peoples Committee. He protested to the higher authorities for a year and a half. As a result he was put on a black list. He claimed to have been arrested and that he was unable to obtain a job because he could not pass the necessary political examination because he had a negative police record.
The Tribunal outlined the applicant's claims. It referred to independent country information. It was satisfied that the applicant was a citizen of China. However, it found that the application was very general and lacked the necessary detail which the Tribunal needed to establish the relevant facts in such an application. In particular there were no details as to the alleged protest location, size, or the circumstances surrounding or leading to it. There was no claim to indicate that the applicant was a unionist leader. The Tribunal also noted that it could not find any reference in independent country information to a ‘Long March’ in the relevant place in China at any time.
The Tribunal also noted that apart from bare assertions the applicant had provided no details as to his alleged detention. Further, although country, information indicated that the authorities had the power to detain those of adverse interest to prevent them leaving the country, and that those of adverse interest would find it impossible or at least very difficult to depart China, the applicant apparently had no difficulty leaving the country and departed legally. There was no claim that the applicant had used a fraudulently obtained passport.
The Tribunal noted that there was independent country information which revealed reports of protests by persons adversely affected by the government policy but found that such policy did not appear to be aimed specifically at any group and that it was difficult to see how it related to persecution for a Convention based reason.
Further, the information indicated that the authorities had only targeted unionists who were leaders. No such claim had been made by the applicant. The Tribunal found that where the independent country information conflicted with that presented by the applicant it preferred the independent country information. Where it could not locate independent country information to support the applicant's assertions it inferred either that the situation as alleged did not occur or that the facts claimed were without basis. It found that the fear of persecution for a Convention based reason was not factually based.
The Tribunal concluded that the claim was not genuine having regard to the lack of detail and substance in the information before it and the independent country information conflicting with that implied by the application and the conflict in information contained in the application. It found on the totality of evidence that the applicant had no subjective fear of persecution and that there was no basis for his claim that he had a well-founded fear of persecution.
In his application for review the applicant made general and unparticularised claims that the Tribunal ignored parts of his claims in the statement attached to the application for the visa and that in doing so the Tribunal ignored relevant material or reached a decision that could not reasonably have been reached or one that was reached without reasonable or rational foundation.
I have considered each aspect of these claims both as individual or combined grounds. The applicant has not filed written submissions and no particulars have been provided as to what parts of the applicant's claim in the statement attached to his application are said to have been ignored. On the material before the Court there is no basis for a claim that the Tribunal has failed to take into account integers of the applicant's claims in a manner constituting jurisdictional error.
The Tribunal summarised the applicant's claims and engaged in a detailed consideration of his claim. It correctly identified the events which the applicant claimed supported his claims, in particular his unemployment, participation in protest, his claimed detention and mistreatment, the Long March, complaints to senior government officials and blacklisting and re-employment difficulties.
The Tribunal reasons also reveal that the Tribunal addressed relevant country information including information about the government policy of “xia gang” and labour unrest. Insofar as the applicant takes issue with the country information relied on by the Tribunal it is a matter for the Tribunal as to how it utilises such information. The weight to be given to particular items of country information is a matter for the Tribunal; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].
There is nothing in the material before the Court to suggest that other or contrary information was put to the Tribunal by or on behalf of the applicant (other than what is contained in his protection visa application which is referred to in his review application). It has not been established that the Tribunal ignored relevant material.
To the extent that the applicant contends that the Tribunal's decision was unreasonable it has not been established, nor is it apparent, that the decision was either unreasonable in the Wednesbury sense (Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 All ER 498) or unreasonable in the sense of being irrational, illogical or capricious. The decision was clearly based on a rational process of reasoning and on the evidence before it. The only information the Tribunal had before it from the applicant was the statement submitted to the Department with the protection visa application. The Tribunal findings turned essentially on the lack of substance and detail in that statement and the failure of the applicant to otherwise substantiate his claims either by providing further information or by appearing at the scheduled hearing to give evidence.
In oral submissions the applicant told the court that he relied on his migration agent who may have missed things and specifically that he did not receive the notification of the Tribunal hearing. However, he also acknowledged that the signature on the Invitation to Hearing form was his, although he indicated that he signed documents without knowing a great detail about the content of the documents. There was no evidence to this effect before the Court.
However, taking these claims at their highest, in effect the applicant seeks to blame his migration agent for his failure to attend the Tribunal hearing. There are, however, a number of authorities in relation to such contentions. Thus in B41/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 30, (upheld on appeal [2005] FCAFC 4), it was held that where an applicant chose to act on the advice of his migration agent there was no denial of procedural fairness and that the applicant could not complain that his actions taken in reliance upon advice received from his migration adviser led to his being denied procedural fairness. The statement that negligence or incompetence of an adviser does not produce a denial of procedural fairness was accepted by Tamberlin J in SCDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531, (also see Applicant M172 v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FMCA 23 in which it was pointed out that Australian authorities required some defect in the decision-making process).
In this instance the Tribunal's notice to the applicant was sent in accordance with the statutory requirements of the Migration Act 1958 (C’th). It was sent to each of the addresses notified in the application for review including the applicant's notified home address. Although the applicant asserts that he did not receive the notice, the Tribunal complied with its obligations to give him notice of the hearing and the applicant signed the response to hearing form.
Within the framework of the Migration Act 1958 (C’th) there was no failure to give the applicant an opportunity to appear before the Tribunal. The Tribunal was entitled under section 426A of the Migration Act 1958 to make a decision on the application for review in the absence of the applicant. The complaints that he makes about the conduct of the migration agent do not establish a jurisdictional error on the part of the Tribunal.
The applicant also told the court that he was not able to identify jurisdictional error on the part of the Tribunal. However he suggested that there had been some speculation by the Tribunal or by the independent country information relied on by the Tribunal. Insofar as such contention takes issue with the merits of the Tribunal decision, merits review is not available in this court and, as indicated, the weight to be given to particular items of independent country information is a matter for the Tribunal. As it noted in its reasons for decision the fundamental difficulty for the applicant was that his application was very general and lacked the necessary detail and that the Tribunal had not located independent country information which supported the claims made by the applicant other than the general claims which it acknowledged in relation to the situation in China. The applicant's complaints in this respect do not establish a jurisdictional error on the part of the Tribunal.
As no jurisdictional error has been established the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. It is appropriate that the Refugee Review Tribunal be joined as a party to the proceedings.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 15 December 2005.