NBCM v Minister for Immigration

[2006] FMCA 559

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBCM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 559

MIGRATION – RRT decision – Chinese claiming persecution for Falun Gong practice – did not attend Tribunal hearing – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 425A(3), 426A, 426A(1), 441A(4), 441C(4), 441G, 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), reg.4.35D

Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221

Applicant: NBCM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2146 of 2004

Judgment of: Smith FM

Hearing date: 10 April 2006

Delivered at: Sydney

Delivered on: 10 April 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr A Carter

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $3,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2146 of 2004

NBCM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 8 March 2004 in the Federal Court of Australia under s.39B of the Judiciary Act 1903 (Cth). The application was transferred to this Court by order of Wilcox J on 31 March 2004.

2. This Court has the same jurisdiction as the Federal Court pursuant to s.483A of the Migration Act 1958 (Cth) (“the Migration Act”).  The repeal of that section by the Migration Litigation Reform Act 2005 (Cth) does not affect the continuance of the proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

3. The powers of both Courts are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claim should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.

4. The present applicant arrived in Australia in March 2003, and on 21 March 2003 an application by him for a protection visa was lodged.  Although in the documents before me there is no appointment of an agent, there is reference to the applicant being assisted by “Jack Meng Immigration and Translation”.  A copy of the delegate’s letter was subsequently sent to Mr Meng and, as I shall indicate, Mr Meng was appointed as the applicant’s agent and authorised recipient in the matter before the Refugee Review Tribunal (“the Tribunal”). 

5. A brief statement attached to the visa application contained the claims of the applicant for protection in Australia against return to his country of nationality, The People’s Republic of China.  The statement said that the applicant had started practising Falun Gong in 1998.  After the ban in July of 1999, the “main leaders” of his group were arrested, and: 

   All the practitioners including me were taken to the police station to report our former activities.  We were forced to sign a confession not to practise Falun Gong any more.  At first I refused.  Then I was detained in the police station for several days.  I was badly beaten by several policemen.  I could not stand the physical torture so that I eventually signed the confession and was then released.  My life had been severely interfered since then.  Although I dared not practise in public, I felt I was stalked wherever I went.  I felt I lost my freedom.  And my work was interfered as well because who dared disobey the government and asked a former Falun Gong practitioner to work for them?  My income was greatly decreased owing to that reason.  Life became so hard because my income was the main financial support to my family.  My wife thus had to sell chicken eggs and vegetables at the market to earn some money.  I felt I owed my wife and son, but was I wrong to follow the doctrines of Falun Gong to be a good person?  I lived in constant worry and fear. 

   Finally I managed to get a valid passport and a valid visa to flee to Sydney.  I am relieved to see so many people in Australia can practise Falun Gong freely without fear and worry from persecution of any kind.  I wish to receive protection from the Australian government and gain permanent residency so that I can continue my practice and live a happy life in this country free of persecution. 

6. No corroboration of these claims nor greater detail was provided to the Department of Immigration, nor subsequently to the Tribunal.  A delegate refused the application on 11 April 2003, and the application for review was lodged on 8 May 2003.  The application gave the applicant’s home address as a hotel in Pitt Street, and a mailing address at the same address as his agent.  The form invited the Tribunal to “please see my file at DIMIA”, and provided no further support for the applicant’s refugee claims. 

7. The Tribunal sent to the applicant at his mailing address and his home address, with a copy to his agent, a letter dated 30 October 2003.  This informed the applicant: “the Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”.  The letter invited the applicant to attend a hearing on 12 December 2003, and asked him to complete a “Response to Hearing Invitation” form. 

8. On 17 November 2003 the Tribunal received an acknowledgment of the invitation, with an indication that the applicant wished to attend.  The applicant has acknowledged today that his signature appears on that response, and also on the application for review lodged with the Tribunal. 

9. The Tribunal sent a further letter dated 3 December 2003.  The letter contained in the Court Book is addressed to the applicant at his mailing address (i.e. the agent’s address) and shows a “cc” to the applicant at his home address, but does not suggest that the applicant’s agent was sent a copy addressed to him in his own name.  However the Tribunal in its reasons, as I shall indicate, said that this happened. 

10. I do not think it necessary for me to make a definitive finding on whether the agent was personally notified of the re‑scheduled hearing since, in my opinion, it is clear that the applicant himself was properly notified of the re‑scheduled hearing, at least in terms of the letter being sent to the applicant at a relevant address for posting pursuant to s.441A(4). The notification of the re‑scheduled hearing gave a more than sufficient period to satisfy the requirements of s.425A(3) and reg.4.35D of the Migration Regulations 1994 (Cth), so as to allow the letter to be deemed to have been received by the applicant pursuant to s.441C(4). In those circumstances it is not relevant whether the agent himself was also notified for the purposes of s.441G (see Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221 at [18]‑[19]).

11. In its statement of reasons for affirming the delegate’s decision, the Tribunal narrated the background to the matter: 

    On 30 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.  The Tribunal invited the Applicant to give oral evidence and present arguments at a hearing on 12 December 2003.  The letter, copied to the Applicant’s home address, was returned unclaimed but on 17 November 2003 the Applicant advised the Tribunal that he wanted to give oral evidence.  On 3 December 2003 the Tribunal re‑scheduled the hearing for 13 January 2004 and advised the Applicant and his adviser accordingly in writing.  On 4 December 2003 the adviser informed the Tribunal orally that the Applicant would attend the hearing on 13 January 2004.  However the Applicant did not 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.  The Tribunal has before it the Department’s file, which includes the protection visa application and the delegate’s decision record.  The Tribunal also has had regard to the material referred to in the delegate’s decision.  

12. I today took the applicant through the letters sent to him by the Tribunal and the above paragraph in the Tribunal’s reasons, and he did not seek to contend that the Tribunal’s description of what happened was incorrect. In my opinion, the Tribunal clearly had power to proceed pursuant to s.426A(1) without taking any further action to allow the applicant another opportunity to appear at a hearing. I can see nothing suggesting that the Tribunal’s discretion to proceed under that provision has miscarried.

13. Under the heading “Findings and Reasons”, the Tribunal gave its reasons for affirming the delegate’s decision.  The Tribunal said: “having considered the Applicant’s evidence, the Tribunal is not satisfied that the Applicant has a well‑founded fear of persecution within the meaning of the Convention”.  It referred to the vagueness, inconsistency and lack of detail in the applicant’s claims, and the need for him to explain his delay in leaving China after getting a passport.  It then restated its conclusion: “the Tribunal is not satisfied, on the evidence before it, that the Applicant has a well‑founded fear of persecution within the meaning of the Convention”. 

14. I consider that the essential, and only, reason for the Tribunal affirming the delegate’s decision was its inability to be satisfied on the skimpy evidence with which the Tribunal was left as a result of the applicant’s failure to attend the hearing. That reasoning, in my opinion, was clearly open to the Tribunal as a matter of law, and I do not consider that it has failed to follow any mandatory procedure, whether under s.424A(1) or any other provision.

15. The applicant has today had no submissions to suggest error by the Tribunal.  He has filed three documents in the Court, but they all appear to have been taken from precedents referring to other cases, and I am unable to give them any meaningful application to the present case.  Thus, the original application claims that “the RRT ignored parts of the applicant’s claims in the statement attached to her [sic] application”.  There is no substance in that claim. 

16. The applicant’s amended application filed on 20 April 2004 is difficult to understand. No particulars are provided of complaints that the Tribunal failed to comply with the Migration Act or failed “to conduct a real, rather than a purported exercise of its jurisdiction”, nor for its other contentions.  I can find no arguable ground for review in this document at all. 

17. A further amended application filed on 8 February 2005 refers to factual claims which were never made by the applicant, and to a path of reasoning which the Tribunal did not follow.  It does not help the applicant. 

18. For the above reasons I have been unable to find jurisdictional error affecting the decision of the Tribunal. It is therefore a privative clause decision for which relief is barred by s.474(1), and I must dismiss the application.

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

Associate:  Lilian Khaw

Date:  26 April 2006