NBBD v Minister for Immigration

[2006] FMCA 100

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBBD v MINISTER FOR IMMIGRATION [2006] FMCA 100

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to comply with s.426A of the Migration Act 1958 (Cth) – whether Tribunal constructively failed to exercise jurisdiction – whether no probative evidence and/or logical grounds.

Migration Act 1958, ss.425A, 426A & 474.

SJSB vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215
NAVX vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287

Applicant: NBBD

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG1473 of 2004

Judgment of: Barnes FM

Hearing date: 19 January 2006

Delivered at: Sydney

Delivered on: 19 January 2006

REPRESENTATION

Applicant: In Person

Solicitors for the Respondent: Sparke Helmore

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 costs of the first respondent fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1473 of 2004

NBBD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First 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 7 January 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant, who claimed to be a citizen of the Peoples Republic of China, arrived in Australia in March 2003 and applied for a protection visa.  He provided a statement setting out his claims in connection with the protection visa application.  He claimed to fear persecution from the government on the basis that he was a Roman Catholic.  In particular he claimed that in early 2000 he and some other adherents had been taken by the police to the police station and questioned about their “daily performance”.  He claimed that they denied they were Roman Catholic adherents and were then warned that if any evidence was found against them they would immediately be put into gaol.  He claimed that thereafter he was unable to undertake any religious activities freely. 

2. The application was refused by a delegate of the respondent and the applicant sought review by the Tribunal.  He made no further claims in his application for review, merely referring to his Departmental file.  On 21 October 2003 the Tribunal wrote to the applicant at each of the addresses provided in his review application: his home address, his mailing address and the address of his authorised recipient.  The letter advised the applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.  It invited him to attend a Tribunal hearing at a date and time specified and advised him that if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice.  The Tribunal received a response to hearing invitation form indicating that the applicant wished to attend the hearing.  However it is apparent from the hearing information form contained in the documents before the Court and from the Tribunal reasons for decision that the applicant did not attend the Tribunal hearing.  In its reasons for decision the Tribunal recorded that the applicant had not since contacted the Tribunal and nor had his authorised recipient. 

3. In those circumstances pursuant to s.426A of the Migration Act 1958 (Cth) the Tribunal made its decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal found that it was not able to satisfy itself about significant matters in the applicant's claims which it found were unsubstantiated assertions. In particular, it found that he had provided only vague details in support of his claims and had not provided any meaningful details beyond the information provided in the application for a protection visa. It summarised the applicant's claims and noted that there was nothing to support these claims other than the applicant's unsubstantiated assertions.

4. It found that there were insufficient particulars provided by the applicant to enable it to be satisfied that he was a member of the Roman Catholic Church.  As the applicant did not attend the Tribunal hearing the Tribunal was unable to ascertain the level of his faith and commitment or to test his credibility.  Accordingly, it was not satisfied that he was a Roman Catholic and hence was unable to be satisfied that he would be of any adverse interest to the PRC authorities if he were to return to the Peoples Republic of China.  The Tribunal also found his claim that he had a fear of returning to the Peoples Republic of China to be unsubstantiated. 

5. The Tribunal was unable to be satisfied from the evidence before it that the applicant faced a real chance of persecution should he return to China now or in the foreseeable future and was unable to be satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason. 

6. The applicant sought review of the Tribunal decision by application filed on 10 February 2004 in the Federal Court.  An amended application was filed on 8 June 2004 and the matter was transferred to this Court.  The amended application contains three grounds.  The applicant made no written submissions nor, despite being given the opportunity to do so, oral submissions in support of his grounds other than to state that because his English was poor, he did not understand what he should provide.  I note that he had the assistance of an interpreter at the directions and final hearing. 

7. The first ground relied upon was that the Tribunal failed to comply with s.426A of the Migration Act 1958 as the applicant was denied a hearing because he was under the impression that he would be detained by the Department of Immigration and removed from Australia if the Tribunal determined that he was not entitled to a protection visa. Section 426A of the Migration Act is as follows:

   (1)  If the applicant:

   (a)  is invited under section 425 to appear before the Tribunal; and

   (b)  does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

   the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

8. Subsection (2) allows the Tribunal to reschedule or delay its decision to enable the applicant to appear. In this instance I am satisfied on the material before me that the Tribunal invited the applicant under s.425 to appear before it to give evidence and present arguments relating to the issues arising. It did so in the letter dated 21 October 2003. Such letter also complied with the requirements of s.425A in relation to specification of details of the hearing, the method of notice to the applicant, the period of notice and the requirement of a statement of the effect of s.426A.

9. The allegation that there is in some way a breach of s.426A, which permits the Tribunal to make a decision without taking further action to allow the applicant to appear before it, is misconceived. However as the applicant is self-represented I also considered whether any failure to comply with any of the other provisions of Division 4 of Part 7 of the Migration Act 1958 was apparent on the material before the Court, taking his contentions that there was a failure to comply with the Migration Act 1958 at their broadest. 

10. The Tribunal wrote to the applicant at both his residential and mailing addresses and care of his authorised recipient and received a response indicating that he wished to appear at the scheduled hearing. He did not appear at the hearing and provided no explanation for his absence. Accordingly, the Tribunal was entitled to determine the matter without taking any further action to enable the applicant to appear before it in accordance with s.426A of the Migration Act 1958.  No breach of the obligations under the Migration Act 1958 in relation to the invitation to a hearing or otherwise is apparent on the material before the Court. The applicant’s claim that he was under the impression that he would be detained by the Department of Immigration and removed from Australia if the Tribunal determined he was not entitled to a protection visa does not establish a breach of s.426A or indeed any other error on the part of the Tribunal. In fact it indicates that the applicant was aware of the scheduled hearing but chose not to attend. No error is revealed in this regard.

11. The second ground is that the Tribunal constructively failed to exercise its jurisdiction.  The first particular is that the Tribunal failed to conduct a real rather than purported exercise of its jurisdiction to determine whether the applicant was a Roman Catholic practitioner as he claimed.  No jurisdictional error is established on this basis.  The Tribunal plainly considered whether the applicant was a Roman Catholic, but on the evidence before it was not satisfied that he was a Roman Catholic.  Such finding was open to the Tribunal on the material before it.  Insofar as the applicant takes issue with the outcome of the Tribunal decision or the merits of its decision it is a matter for the Tribunal to determine the facts and place weight on the evidence and no error is established as contended.

12. The Tribunal was not obliged to accept at face value the applicant's claim and there is authority to establish that no error is revealed in the Tribunal's approach because the facts that were put forward by the applicant did not cause it to be satisfied as to the applicable criteria (see SJSB vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215). I note that in NAVX vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] in similar circumstances where an applicant failed to attend a Tribunal hearing in the face of a letter putting the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicant on the material before it, the rejection of the application was said to be the "inevitable consequence" of the applicant's non-attendance at the scheduled hearing. The Tribunal is under an obligation to consider the case put by an applicant but is not obliged to make the case for an applicant and no error is established in this respect.

13. The second particular is that the Tribunal constructively failed to exercise its jurisdiction because it improperly precluded itself from considering the material which supported the applicant's claim that he had assisted other Catholic practitioners.  However, there was no evidence in the material before the Court to indicate that the applicant ever raised a claim that he assisted other Catholic practitioners.  The Tribunal considered the claims as contained in the protection visa application and the statement attached which were the only matters relied on in the review application. 

14. The third ground was that the Tribunal's satisfaction was reached in the absence of probative material and/or logical grounds and was therefore not rationally formed.  As I have indicated above no jurisdictional error is revealed in the Tribunal proceeding on the basis that the facts put forward by the applicant did not cause it to be satisfied as to the applicable criteria and no error is established on the basis contended for in ground three.

15. On the material before the Court no error has been established.  There is no jurisdictional error on the part of the Tribunal.  The decision is a privative clause decision within s.474 of the Act. 

16. I note that the first respondent considered that the joinder of the Refugee Review Tribunal as second respondent was appropriate.  I will so order.

RECORDED   :   NOT TRANSCRIBED

1. I will hear submissions in relation to costs.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful and the first respondent seeks that he should meet the costs of these proceedings in the sum of $2500.  The unsuccessful applicant should meet the costs of the respondent and the amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  31 January 2006