NBBL v Minister for Immigration

[2006] FMCA 161

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBBL v MINISTER FOR IMMIGRATION [2006] FMCA 161

MIGRATION – Application to review decision of Refugee Review Tribunal – applicant did not attend hearing – whether Tribunal denied applicant procedural fairness or failed to comply with s.424A of the Migration Act 1958 (C’th). 

Migration Act 1958, ss.424A, 425, 426 & 426A

SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
VAF vMinister forImmigration&Multicultural&IndigenousAffairs [2004] FCAFC 123
VAUX v Minister forImmigration&Multicultural&IndigenousAffairs [2004] FCAFC 158
B41 of 2003 v Refugee Review Tribunal [2005] FCAFC 4
SZDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531
NASF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162
SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779
Australian Capital Territory State Revenue v Alphaone (1994) 49 FCR 576

Applicant: NBBL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG802 of 2004

Judgment of: Barnes FM

Hearing date: 8 February 2006

Delivered at: Sydney

Delivered on: 8 February 2006

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Nil

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the Refugee Review Tribunal be joined as Second Respondent to these proceedings. 

2. That the application is dismissed.

3. That the Applicant pay the First Respondent’s costs set in the amount of $3,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG802 of 2004

NBBL

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 14 January 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. 

2. The Tribunal reasons for decision record that the applicant, who claimed to be a citizen of The Peoples Republic of China, arrived in Australia in November 2002 and applied for a protection visa in December 2002.  In a statement attached to his protection visa application he claimed to have a well-founded fear of persecution by the PRC authorities because he was a Falun Gong practitioner. 

3. He claimed to have been introduced to Falun Dafa by a friend and that after the Chinese Government cracked down on Falun Dafa practitioners he continued to practise, that this irritated the management at the factory where he was working and so they fired him after 23 years' employment.  He claimed that being labelled a Falun Dafa practitioner, it was not even easy for him to find a job and that he was afraid of being prosecuted by the Chinese Government. 

4. The protection visa application set out the applicant’s personal details, including his then current residential address.  After his application was refused by a delegate of the respondent the applicant sought review by the Tribunal.  At all relevant times he had the assistance of a migration agent.  In his application for review he provided a home address (which was the same address that that been given as his address in his protection visa application), a mailing address which was the address of his migration agent and also nominated his migration agent at that address as his authorised recipient to act on his behalf in relation to the case. 

5. In that part of the review application headed: Your Reasons for making this Application, the application states “Please see my file at DIMIA”.  No further details of the applicant's claims were provided to the Tribunal. 

6. On 25 September 2003 the Tribunal wrote to the applicant at his residential address (that being the same address that appeared in his protection visa application and in his application for review), to his migration agent at the address provided and also to the applicant care of the migration agent's firm at the address provided in the application for review.  The letter of 25 September 2003 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 this information alone.  It invited him to a hearing at a place, 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. 

7. On 27 September 2003 the Tribunal received a response to hearing invitation, which indicated that the applicant wished to attend the Tribunal hearing and required a Mandarin interpreter. 

8. The Tribunal reasons for decision record that the applicant did not attend the hearing on the date scheduled or contact the Tribunal to explain his failure to attend. In those circumstances, pursuant to section 426A of the Migration Act 1958 (C’th) (the Act) the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

9. The Tribunal set out the applicant's claims as made in his protection visa application and noted that no additional claims had been set out in the application for review.  It noted that the applicant had been advised that the Tribunal was unable to make a decision in his favour on the information in the protection visa application or the application for review.  It recorded that he failed to appear before the Tribunal. 

10. The Tribunal indicated that it had a number of issues upon which it required a good deal more detailed evidence before it could be satisfied that the applicant was in genuine fear of persecution and that there was a real chance he would be persecuted on return to China. 

11. The Tribunal found that the claims in the protection visa application were couched at a very general and vague level.  It referred to the minimum details of the claimed involvement in Falun Gong or how the authorities came to know of this involvement and how the applicant came to be fired.  On the extremely limited and vague information available to it the Tribunal found that it could not be satisfied that the applicant was in fact actively involved in Falun Gong and that the authorities became aware of this and that he was fired because of this involvement. 

12. Given that the applicant had stated in his application that he departed China legally and in the absence of any claim that he was of ongoing adverse interest to the authorities, the Tribunal was unable to be satisfied that he faced any harm from the Chinese authorities for Convention reasons on return.  Accordingly the Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention. 

13. The applicant filed an application seeking review of the Tribunal decision in the Federal Court on 16 February 2004.  That application contained a number of generally expressed and unparticularised grounds.  The matter was transferred to this Court and orders were made for the filing of an amended and fully particularised application on or before 2 April 2004 together with an affidavit in support and any evidence relied on.  An amended application was filed on 31 March 2004 contending that the Tribunal's conclusion that the applicant would face no danger even though the Tribunal conceded he was a Falun Gong practitioner was reached upon incorrect information gathered from unreliable sources.   

14. A further amended application was filed on 28 June 2004 repeating this contention, claiming that the Tribunal failed to comply with procedures of the Migration Act and constructively failed to exercise its jurisdiction under the decision and that its satisfaction was reached in the absence of probative material or logical grounds. A further amended application was filed on 9 August 2004. It relies on two grounds which I consider further below. In the hearing today the applicant raised new grounds of review (although in so far as he claimed that there had been a failure by the Tribunal to comply with Migration Act 1958 procedures this was raised in general terms in his earlier applications.) 

15. The applicant is self-represented.  I have considered all of the grounds raised by the applicant and all the material before me in considering whether any jurisdictional error is apparent in the decision or procedures of the Tribunal.  Considering first the grounds raised in the latest amended application filed on 9 August 2004, the applicant contended that the Tribunal failed to deal with the claim that he feared persecution in connection with his desire to publicise information about the banning of Falun Gong by the Chinese Government.  It is not apparent from the claims made by the applicant in the protection visa application that he was making a claim to fear persecution as an intending publicist of information about the banning of Falun Gong.  However even if one considered such a claim to be implicit in the concerns that he raises about his treatment as a practitioner of Falun Dafa, it has not been established, nor it is apparent, that the Tribunal failed to deal with any integer of the applicant's claims in a manner constituting jurisdictional error. The Tribunal based its decision upon its lack of satisfaction on the material before it that the applicant met the applicable criteria.  The findings that the Tribunal made were open to it on the material before it.  The Tribunal was not obliged to accept at face value the applicant's claims: see SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [15] – [16] I note that in similar circumstances, where an applicant failed to appear before the Tribunal in the face of a letter such as the letter of 25 September 2003 putting him on notice that the Tribunal was not prepared to make a favourable decision on the information before it, the Full Court of the Federal Court described rejection of the application for review as the ‘inevitable consequence’ of the applicant's non-attendance at the Tribunal hearing: see NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5].

16. The second ground relied on in the amended application is that the Tribunal fell into jurisdictional error in relying upon historical country information rather than up to date information in relation to the attitude of China to return protection visa applicants with Falun Gong claims.  The Tribunal refers to no country information in its reasons for decision.  The Tribunal based its decision, as I have indicated, upon its lack of satisfaction from the material put before it that the applicant met the applicable criteria.  There is no indication that the Tribunal relied on historical country information in reaching its decision and no error is established on that basis. 

17. In the hearing today the applicant raised a number of claims; in essence that the Tribunal failed to comply with ss.424A and 425 of the Migration Act 1958 (C’th) and that he was denied procedural fairness. Section 424A(1) relevantly provides that subject to sub-s.(3) the Tribunal must give to the applicant in the way that the Tribunal considers appropriate in the circumstances particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review. The applicant must be given an invitation to comment on such information.

18. Under s.424A(3)(b) this section does not apply to information that the applicant gave for the purpose of the application. I note in that respect that the applicant specifically referred the Tribunal to his Department file in his review application. Insofar as the Tribunal relied on any information in the protection visa application, such information was provided to the Tribunal for the purposes of the review application and hence is outside the s.424A(1) obligation.

19. The essence of the applicant's claim in relation to s.424A however, is that the Tribunal was under an obligation to put to him for comment its reasons or tentative reasons for decision and that it erred in not so doing. However, the Tribunal is not obliged under s.424A(1) to put its reasoning to an applicant for comment in the manner contended (see VAF vMinister forImmigration&Multicultural&IndigenousAffairs [2004] FCAFC 123 and VAUX v Minister forImmigration&Multicultural&IndigenousAffairs [2004] FCAFC 158).

20. Insofar as it is intended to raise under this ground the contention that the Tribunal was under an obligation to put country information to the applicant, as indicated above, there was no country information referred to in the Tribunal decision but in any event such information would be within the s.424A(3)(a) exception.

21. The applicant contends that as a matter of procedural fairness the Tribunal was under an obligation to put is reasoning to him or the fact that it was to make a decision.  It is not necessary for me to consider the extent to which s.422B of the Act operates because no lack of procedural fairness has been established. Procedural fairness obligations do not extend to an obligation on the Tribunal to advise an applicant of its tentative reasons or to put such reasons to an applicant for comment.  There is no obligation under the Migration Act 1958, let alone under principles of procedural fairness, for the Tribunal to send its reasons or potential reasons to the applicant for comment or to otherwise advise the applicant of its intention to make an adverse decision beyond the notification that it provided on 25 September 2003.  See Australian Capital Territory State Revenue v Alphaone (1994) 49 FCR 576 at 591 to 592. Subject to qualifications that are not applicable in this case, the decision maker is not obliged to expose his or her mental processes for provisional views to comment before making the decision in question.

22. The essence of the applicant's procedural fairness claim is connected with his claim under s.425 of the Act. It is that that the Tribunal erred in failing to effectively invite him to the Tribunal hearing. Under

    
    

    s.425 of the Act the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. However, in this case the Tribunal met that obligation in the letter of 25 September 2003 which complies with the requirements of ss.425A and 426 of the Migration Act 1958 (C’th). 

23. The applicant contended that his migration agent put him ‘into the dark’.  However the letter of 25 September 2003 was sent not only to the migration agent but also to the applicant personally at the residential address provided both in his protection visa application and in his application for review. 

24. The applicant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about his claims and to put forward any relevant material he wished to rely upon.  The Tribunal properly notified him in accordance with the Migration Act 1958.  There was no breach of that Act or denial of procedural fairness established. 

25. Consistent with a number of decisions of the Federal Court and of this Court, the complaints that the applicant makes about the Tribunal and about the conduct of his migration agent do not establish a denial of procedural fairness or a breach of the Migration Act 1958 by the Tribunal (see B41 of 2003 v Refugee Review Tribunal [2005] FCAFC 4). I note that as Tamberlin J said in SZDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531 (where an applicant raised the point that his agent had not given him a proper opportunity to appear at a hearing before the Tribunal) that having regard to the decision of the Federal Court in B41/2003 an applicant cannot complain that his actions taken in reliance upon advice received from his migration adviser led to him being denied procedural fairness.  In NASF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162, Court found that the Tribunal's invitation was, as in this case, sent to the applicant in accordance with statutory requirements, notwithstanding the applicant's assertions that the notice had not been received. In those circumstances no lack of procedural fairness or other jurisdictional error was established. (Also see SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 at [25].)

26. No failure to comply with s.425 or any of the provisions of the Migration Act has been established on the part of the Tribunal, nor any lack of procedural fairness.

27. The applicant complained specifically that the Tribunal should have informed him as well as his migration agent.  It sent a notice to the residential address that he had provided, in addition to the migration agent. 

28. Insofar as the applicant takes issue with the competence of his migration agent by his claim that he was put into the dark by the agent and thought that the agent would have researched and prepared the application carefully, negligence or incompetence of an adviser does not establish a denial of procedural fairness.  (See SZDDH and also B41.)

29. Finally, the applicant took issue with the quality and timing of the legal assistance he received under the Federal Court Legal Advice Scheme, including the fact that the advice was not provided until after the time at which he had been ordered to file an amended application.  The applicant has, on his own submissions, had over a year since the time of receipt of such advice to seek to file a further amended application.  He did so on one occasion and he raised fresh grounds in the hearing today to which no objection was taken by the respondent.  I am not persuaded that the timing of the advice in any way impeded his preparation for this hearing.  His complaint about the quality of the advice he received is not such as to establish a ground for review of the Tribunal decision. 

30. For the sake of completeness I note that I have also considered all of the grounds raised in the earlier amended applications. The grounds raised in the original application, which consisted of a template of a number of general and unparticularised grounds, do not establish any jurisdictional error. The amended application filed on 31 March 2004 asserts that the Tribunal reached its finding about the future based on incorrect information gathered from unreliable sources. As indicated, the Tribunal based its decision on its lack of satisfaction, not on country information. I have considered the claim that the Tribunal failed to comply with the procedures under the Migration Act, although I note that the matter referred to in the application bears no relationship to the facts of this case. It is claimed that the Tribunal acted in breach of the Act in that it failed to reassure the safety of the hearing participants. The applicant did not attend the Tribunal hearing. The Tribunal did not breach its obligations in relation to inviting him to a hearing. Nor is it established or apparent that the Tribunal constructively failed to exercise its jurisdiction in any way. Findings based on lack of satisfaction were open to it and it cannot be said that it failed to conduct a real exercise of its jurisdiction. Again, the contention that the Tribunal improperly precluded itself from considering material supporting the applicant's claim that he had assisted other Falun Gong practitioners does not seem to relate to the claims that he made, but the Tribunal did, in any event, consider all claims and matters arising therefrom. There is no basis for the generally expressed and unparticularised claim of lack of appropriate material, logic or lack of a rational decision.

1. The amended application of 28 June 2004 repeats these claims.  No jurisdictional error is established on any basis put before me by the applicant or apparent on the material before me.  In these circumstances the Tribunal decision is a privative clause decision.  The application must be dismissed. 

RECORDED   :   NOT TRANSCRIBED

1. The respondent seeks, and it is appropriate, that the Refugee Review Tribunal be joined as second respondent to these proceedings.  The applicant has been unsuccessful and there is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the first respondent.  The amount of $3,250 is appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  15 February 2006.