NBDJ v Minister for Immigration
[2006] FMCA 285
•24 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBDJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 285 |
| MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a protection visa – where the information was part of the reason for affirming the delegate’s decision – Migration Act 1958 (Cth), s.424A. |
| Migration Act 1958 (Cth), ss.424A, 475A Judiciary Act 1903 (Cth), s.39B |
| Craig v State of South Australia (1995) 184 CLR 163 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 NASF v Minister for Immigration & Multicultural & Indigenous Affairs Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 S41/2003 v Refugee Review Tribunal [2005] FCAFC 4 SZDDH v Minister for Immigration & Multicultural & Indigenous Affairs SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 |
| Applicant: | NBDJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG1690 of 2004 |
| Delivered on: | 24 March 2006 |
| Delivered at: | Sydney |
| Hearing date: | 24 February 2006 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Advocate for the Applicant: | Applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Ms C Gray |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The Refugee Review Tribunal be joined as the second respondent.
That the Court declares that the decision of the Refugee Review Tribunal made on 23 February 2004 and handed down on 16 March 2004 is invalid and of no effect.
A writ of certiorari quashing the decision of the Refugee Review Tribunal.
A writ of mandamus directed to the Refugee Review Tribunal to redetermine the matter according to the law.
The first respondent to pay the applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1690 of 2004
| NBDJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court on 30 March 2004 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 23 February 2004 and handed down on 16 March 2004. It affirmed the decision of the delegate of the respondent (“the delegate”) made on 30 September 2003 refusing to grant the applicant a protection (Class XA) visa.
The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “NBDJ”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (“SAAP”) at [43], [91], [153] and [180].
For the purposes of these proceedings, the applicant has filed an affidavit sworn on 12 February 2006 (“affidavit of the applicant”) and I admit that affidavit into evidence. A Court Book (“CB”) prepared by the respondent’s solicitors was filed and served on 10 June 2004.
On 27 May 2004, His Honour Beaumont J transferred these proceedings, then numbered NSD454/2004, to this Court. Those orders were entered on 1 June 2004.
Background
The Tribunal decision contains a summary of the applicant’s background which states the following. The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 31 August 2003. On 18 September 2003 he lodged an application for protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act.
On 30 September 2003, a delegate of the Minister refused to grant a protection visa and on 30 October 2003, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 66).
According to the visa application lodged by the applicant he is from Tianjin, China. At the time of making the application he was 33 years old. He appears to have lived in the same address in China from 1970 to 2003. He is married and his wife resides in China. He stated that prior to coming to Australia his occupation was “mechanic” and he had worked as a mechanic from 1990 to 2003. He came to Australia from China on a passport issued in his name in April 2003 and valid until April 2008. He stated he had no difficulty in obtaining that passport. In the statement in support of his application, he stated that he became a Falun Gong member in December 2000 and that it was a national “crack down” on Falun Gong that made him interested in the belief. He claimed that his home town Tiangin City was an important base for the Falun Gong movement and that there are more than 10,000 Falun Gong practitioners there. He claimed that there are many laid-off workers in the city who chose Falun Gong because of their poverty, with the hope of improving health and avoiding disease as medical expenses in China are high (CB 68-69).
The applicant states that he decided to support Falun Gong after he learned more about the group and the government’s unfair treatment of it. At first he provided donations and facilities. Then he found his health improved after practising Falun Gong, so he became a member in December 2002. He actively supported and attended Falun Gong gatherings and associations. On 25 February 2002, 21 Falun Gong station leaders and the applicant met at his place of business. They were planning demonstrations against the recent detention of Falun Gong members in the Tianjin Public Security Bureau. Soon after the meeting began however, the applicant’s friend from the Bureau rang and warned him that the Bureau was sending a group of police to arrest them. The meeting was cancelled and the applicant cannot say whether the police did attend that night to arrest them. The applicant learned the next day however that police went to the home of one of the members that night and interrogated her, warning her to keep away from Falun Gong. To avoid being arrested by the police, he decided to travel overseas to flee the possible persecution. The applicant claimed that he wanted to ensure his safety with this protection visa application. He may also develop his personal business in Australia while continuing to support official acknowledgment of Falun Gong activities (CB 69).
Tribunal’s Findings and Reasons
A convenient summary of the Tribunal’s reasons are contained in the first respondent’s written submissions prepared by Ms C Gray and I adopt paragraphs three to seven of those submissions:
3.The applicant did not attend the Tribunal hearing. The Tribunal found that:
(i)the applicant’s claims were “unclear” and lacking in detail (CB 74.10). For example, it found that the applicant provided little detail about his practice of Falun Gong or any information regarding his Falun Gong activities in Australia (CB 75.2-75.4).
(ii)that the applicant was able to obtain a passport in his own name and without difficulty, had been employed by the same company from 1990 to 2003 and lived at the same address from 1970 to 2003 (CB 75.7).
(ii)it could therefore not be satisfied on the evidence before it that the applicant was a Falun Gong practitioner or that he was in danger of being arrested because of his association with Falun Gong (CB 75.4).
4.The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason (CB 76.1).
5.On 8 January 2004, the Tribunal wrote to the applicant at his residential address and his authorised recipient’s address advising that it had considered all the material before it relating to his application but that it was unable to make a favourable decision on that information alone (CB 54-55). The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 17 February 2004.
6.On 14 January 2004, the applicant accepted the invitation to hearing (CB 56). However, the applicant failed to appear on the scheduled date and time and provided no explanation for his absence. The Tribunal was therefore entitled to proceeding to make a decision on the papers pursuant to s.426A(1).
7.The Tribunal was not obliged to accept at face value the applicant’s claims. No jurisdictional error is revealed because the facts that were put forward by the applicant did not cause the Tribunal to be satisfied as to the applicant’s criteria.
Application for review of the Tribunal’s decision
On 30 March 2004, the applicant filed an application review under s.39B of the Judiciary Act setting out the following grounds:
1.The RRT found that the applicant had failed to satisfy the basic requirement for the grant of the visa. In making this finding, the RRT ignored parts of the applicant’s claim in the statement attached to his application for the relevant visa submitted. In doing so, the RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is not entitled to the relevant visa and give rise to jurisdictional error.
2.The above jurisdictional error affected the exercise of power of the RRT.
On 19 July 2004, the applicant filed an amended application in accordance with orders made by the Registrar on 24 May 2004. That document does not contain any grounds of review, but rather a restatement of the applicant’s claim, giving details of his background and his involvement with the Falun Gong movement.
On 14 February 2006, the applicant filed an affidavit which I believe is an attempt to comply with the Registrar’s orders made on 21 January 2005 to file written submissions 14 days prior to the hearing. The opening statement in that affidavit is in effect the first ground pleaded by the applicant and states, “the Tribunal did not comply with its obligation under s.424 of the Act in respect of the abovementioned information”. The information is neither identified nor contained in the affidavit. However, that ground is particularised and does make reference to information, part of which is the independent country information. Regretfully this is also unidentified.
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441, held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 v Commonwealth of Australia at [76] and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power: Craig v State of South Australia [1995] HCA 58 per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389.
Reasons
The applicant in these proceedings was representing himself and has attempted to comply with orders of the Court by filing an amended application and an affidavit, which I believe was an attempt to satisfy the requirement to file written submissions prior to the hearing. The only ground of review, identified by the applicant in his written submissions, is that the Tribunal did not comply with its obligations under s.424 of the Act. In the context of which this claim is made, I suspect that the applicant is referring to s.424A. Reference is also made of the applicant’s failure to appear at the Tribunal hearing and submits this was due to the migration agent failing to properly inform the applicant of the purpose of the hearing and the importance for him to attend. It is acknowledged that the Reply form was returned to the Tribunal executed by the applicant indicating his intention to attend, but ultimately this did not occur.
Where an applicant is self-represented, the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. I acknowledge the difficulties that the applicant faces, not speaking the language, nor understanding the operations of the legal system in which he is attempting to pursue his application. I also acknowledge that the applicant has attempted to pursue his case, either with the assistance of someone with a very limited knowledge of the legal system or a migration agent who has not been of significant help to the applicant. The applicant indicated to the Court that he has spent a considerable sum of money on a migration agent. However that agent had been de-registered while the applicant’s case was underway. The migration agent effectively abandoned providing professional assistance to the applicant.
Ms Gray, appearing for the respondent, indicated that she would rely upon her written submissions, but did assist the Court with oral submissions on issues raised by the applicant’s affidavit and by his oral submissions from the bar table. The first is the applicant’s claim that he did not attend the Tribunal hearing because his migration agent did not fully inform or explain to him the importance or significance of the hearing. This reason for non-attendance does not establish that the Tribunal fell into error in proceeding in the manner in which it did. The Tribunal met its obligation under Division 4, Part 7 of the Act to invite the applicant to the hearing. Just because the applicant acted on advice from a migration agent, or the agent did not fully explain the significance of attending the hearing, does not mean that the Tribunal breached procedure or there was a denial of procedural fairness. There are a number of authorities in support of the proposition that if an applicant relies on advice received from his migration agent (or in this case a lack of advice), it does not establish a lack of procedural fairness on the part of the Tribunal: B41 of 2003 v Refugee Review Tribunal [2005] FCAFC 4 upheld the decision of Dowsett J at B41of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30, in particular at [25]. Also see SZDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531 per Tamberlin J at [5] and NASF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 39 per Moore, Tamberlin and Heeley JJ at [16].
Ms Gray also made helpful submissions in respect of the independent country information and the claim made by the applicant that the Tribunal had breached its obligation under s.424A. I accept Ms Gray’s submissions that the information which the applicant referred is covered by the exemption under s.424A(3)(a) and I do not believe it is necessary to fully explore the line of authority in support of those submissions.
Ms Gray did draw my attention to the recent decision of SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”), which had been handed down by the Full Federal Court on the morning of this matter’s hearing. I accepted that Ms Gray was not in a position to make submissions to the Court on the implications of that decision. Consequently, I reserved my decision in order to enable me the opportunity to consider the impact of SZEEU.
In the Tribunal’s findings and reasons, it indicated that it could not be satisfied that the applicant was a Falun Gong practitioner who feared persecution for Falun Gong activities and fled China for that reason. The Tribunal was not satisfied that the applicant was in danger of arrest in China because of the meeting at his place of business that he described, or that there was such a meeting. This was because it was not satisfied that the applicant was a Falun Gong practitioner or supporter. Further, there were no details of the applicant’s involvement in the Falun Gong movement in Australia, nor any explanation of what the applicant meant when he claimed that he would continue striving for an official acknowledgment of Falun Gong activities.
The Tribunal then makes the following statement (CB 75):
The Tribunal notes that the applicant appears to have lived at the same address in China from 1970 to 2003 and was living there just prior to his travel to Australia. Also it seems he was employed up to the time he departed China to come to Australia as a mechanic in the same company from 1990 to 2003. He left China legally using a passport in his own name and stated that he had no difficulties obtaining that passport. His wife is still residing in China and there is no evidence that she is being asked about the applicant by authorities.
This information regarding the applicant’s personal history is contained in the original visa application and has been set out in the delegate’s decision in “Part D: Reasons and Findings” (CB 45). In the Tribunal application, the only information the applicant provided in Section D of that application was the following (CB 50) :
Please refer to my statement lodged to DIMIA.
The statement is set out at CB 29 to 31 and forms part of the protection visa application filed and prepared by Jack Meng Immigration Pty Ltd. That statement contains none of the personal information referred to in the Tribunal decision and reproduced above in paragraph [21]. It is the only information that the applicant conveyed to the Tribunal and therefore falls outside the requirement contained in s.424A(1) of the Act. Clearly the Tribunal obtained that information from the applicant’s visa application, possibly supplemented by the delegate’s discussions with the applicant. It is information for the purposes of s.424A(1). It was part of the reasons for affirming the delegate’s decision.
Immediately after the Tribunal set out the information regarding the applicant’s personal history (above at [21]), it made a statement (CB 75):
In the Tribunal’s view these facts do not support the applicant’s claims that he feared persecution in China and had to flee his country because of that persecution.
The significance of this sentence is it clearly states that the Tribunal relied on these personal details to support its findings. The relative weight that the Tribunal placed on the information is no longer a determining factor and it only needs to recount for part of the reason: SZEEU per Allsop J at [215]:
To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s.424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason.
His Honour Weinberg J agreed at [155] of the same judgment. The consequence is that if a Tribunal’s refers to a piece of information obtained from material submitted to the delegate but not material that is formally before the Tribunal, as “a reason” for the Tribunal decision, it cannot be brushed aside because it was a “subsidiary or minor” reason only: SZEEU per Weinberg J at [158] and [164]. Justice Allsop refers to the relevant significance of information in the following terms at [227]:
Whilst it does not appear to play a central or integral role in the reasoning process displayed in the reasons, I conclude that it did play a part in the disbelief of the appellant, which was the or a reason for the decision of the Tribunal.
I believe that the personal information submitted to the delegate, was a reason for the final decision of the Tribunal, and in the nature of “material” as referred to by Allsop J.
The effect of SAAP in relation to discretion is discussed in SZEEU by Allsop J at [231] and Weinberg J at [110] – [111]. Justice Allsop accepted at [233] that relief can be withheld if: “it can be shown that there was a basis for the Tribunal’s decision which can be seen to be entirely independent of the failure to follow s 424A”. I do not believe that the references to the applicant’s personal information can be categorised in that manner.
Conclusion
It follows in my view, that the application must be allowed.
This follows from the reasons of the majority view in SZEEU. Accordingly the matter should be remitted to the Tribunal for reconsideration in accordance with the law.
There will be no order as to costs as the applicant has not incurred any legal costs in these proceedings.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 23 March 2006
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