NBML v Minister for Immigration
[2006] FMCA 948
•20 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBML v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 948 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend Tribunal hearing – whether there was any evidence of bias – whether there was any breach of Migration Act 1958 (Cth) s.424A – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 426A, 474 |
| VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 referred to |
| Applicant: | NBML |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 June 2006 |
| Date of Last Submission: | 20 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2 of 2006
| NBML |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 27th September 2005.
The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 17th February 2005. He applied for a protection
(class XA) visa but this was refused on 15th April 2005.
The applicant then sought a review of that decision on 18th May 2005. The applicant lodged his application for review on 18th May 2005 and accompanied that application with a statement headed:
Reasons for review application.
In which he claimed to have been detained and tortured and charged with anti socialism because of his practice of Falun Gung.
In his application for review the applicant gave his home address in a Sydney suburb. He nominated that address as his address for correspondence.
The Tribunal wrote to the applicant on 5th August 2005 inviting him to attend a hearing on Monday 5th September. A copy of the letter appears on page 52 of the Court book. No reply to that letter was received and the applicant did not attend the hearing on 5th September. The Tribunal proceeded to make its decision on the review without taking any further action to enable the applicant to appear before it exercising its powers under s.426A of the Migration Act.
The Tribunal's findings and reasons are set out on pages 63 and 64 of the Court book. The Tribunal was not satisfied that the applicant was detained and tortured because of his practice of Falun Gung or that he would suffer harm, be arrested, imprisoned or killed if he were to return to China. The reason that the Tribunal was not satisfied was that:
The applicant's claims are essentially assertions and are unclear and lacking in detail in important aspects.
The Tribunal found that there was no persuasive evidence that enabled it to be satisfied that there was a real chance that the applicant would face serious harm for the purpose of the Convention, either at the time of the hearing or in the reasonably foreseeable future if the applicant were to return to China.
For those reasons, the Tribunal was not satisfied that the applicant had a well founded fear of persecution within the meaning of the Convention and affirmed the delegate's decision not to grant a protection visa.
The applicant filed an application in the Federal Court registry on
27th October 2005 seeking a review under the provisions of s.39B of the Judiciary Act. He gave the same address in that application as he did in his application to the Refugee Review Tribunal.
On 7th September 2005 a registrar of the Court transferred the proceedings to this Court.
The applicant has today without objection obtained leave to file an amended application. I note that the applicant has now changed his home address and has given his postal address as a post office box number in another Sydney suburb.
In the amended application the applicant lists two grounds and provides what are essentially particulars of them. The first ground and its particulars are this:
The Tribunal failed to bring to my attention a critical factor upon which the decision was likely to run so that I might have a chance to deal with it. In the Tribunal's decision letter the officer listed some facts I provided to him about my background. He held questions to some of them but not all. He wanted answers to those questions but he failed to put them in writing and gave me an opportunity to reply.
The second ground is that:
The RRT member did not give my application enough weight although I have provided lots of information. The Tribunal must have brought an impartial mind to the consideration of my claims. The RRT did not assess all of my statement provided to him as he had listed in his decision letter but picked up those on which he wanted to rely for his decision making. Something which was not clear to him and he failed to give me the opportunity to deal with given that the decision was made subjectively and on a bias basis.
The applicant claimed in his original application that he never received a letter from the Tribunal concerning the hearing. Whilst I accept that the respondent has put to the Court that actual receipt of a letter or not is immaterial in the course of these proceedings, I gave the applicant the opportunity to give oral evidence about the circumstances of his claimed non receipt of the letter.
The applicant told the Court that he used to live at the address that he gave for the purpose of the Refugee Review Tribunal and that he gave when he commenced these proceedings. He lived there with another person. Neither of them spoke English.
He first told the Court that he had not received any letters from the Refugee Review Tribunal but later said that he had received one letter. This was the letter from the Tribunal which accompanied the Tribunal decision. This would be the letter of 27th September 2005, a copy of which appears in the Court book at page 57.
It was from this letter, once he got someone to translate it for him, that he ascertained that he had missed his hearing. He denied receiving any other correspondence from the Tribunal although several other letters appear in the Court book.
He said that because neither he nor the other person could read English the only way that they could find out what letters were about was to take them to a friend and get the friend to read them for him. He did indicate that he knew that he had received the electricity bill.
The applicant's evidence relating to the non receipt of the Tribunal's letter of invitation to the hearing is unconvincing to my mind. As the applicant and the other person with whom he lived at the time did not speak English, neither of them could have known what letters they received unless they were extremely obvious. It appears quite likely that the Tribunal letters which were correctly addressed did arrive at the appropriate time but were disregarded or the significance of them was not understood.
In any event, as counsel for the respondent submitted the letter of invitation appears to have been correctly addressed and the applicant would have been taken to have received the letter seven working days after the date of the document by applying s.441C(4)(a).
In these circumstances, regardless of whether the applicant actually received the letter or not, the Tribunal was entitled to proceed as it did to determine the application without taking any further steps to allow or enable the applicant to appear before it, relying on s.426A(1).
I am referred to the decision of VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [4] per Sundberg and Healy JJ with Giles J agreeing at 417.
The applicant's amended application sets out what appears to be a complaint of failure to abide by s.424A of the Migration Act. It is clear, however, that reading from the Tribunal decision that there was no information that formed the reason or part of the reason for affirming the decision that needed to be disclosed under s.424A.
The reason for the Tribunal's lack of satisfaction that the applicant had a well founded fear of persecution within the meaning of the Convention was the lack of information which was provided. It had already been made clear in the s.425 letter sent by the tribunal on
5th August 2005 which the applicant claims that he never received 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.
Indeed, the Tribunal's reasons make it quite clear that with no further information the Tribunal could not have been satisfied that the applicant met the criterion under s.36(2). The Tribunal said at page 64:
Generally, there is little detail of the applicant's involvement in a practice of Falun Gung and the persecution he alleges.
Further in that same paragraph:
As at the date of the decision there is no persuasive evidence before the tribunal that enables it to be satisfied that there is a real chance that the applicant would face serious harm, for the purposes of the Convention, either now and the reasonably foreseeable future if he returns to his country.
The fact is there was not enough information to enable the Tribunal to reach an affirmative state of satisfaction that the applicant met the criteria for a visa. If the Tribunal is not satisfied that the applicant meets the criteria for a visa the Tribunal has no option but to affirm the decision not to grant a protection visa.
There was no information that came under s.424A. It was only the Tribunal's assessment of the applicant's own information or lack of it and an assessment of information is not information of itself.
The applicant also claimed in his amended application that the Tribunal did not give his application enough weight although he had provided lots of information.
That of course is no more than a complaint about a factual finding of the Tribunal and I have made it clear that the Court cannot conduct a merits review and disturb a factual finding of the Tribunal.
The applicant in fact indicated that he had further evidence from China but had not yet put that material to the Tribunal and I indicated that the Court could not consider evidence that had not gone to the Tribunal.
The applicant also has made a complaint in respect of an allegation of bias claiming that the decision was made subjectively and on a biased basis.
An allegation of bias is a serious matter. It is an allegation of personal thought on the part of the decision maker. It should be strictly proved and it is seldom, if ever, able to be proved just by a reliance on the text of the Tribunal decision. I read the Tribunal decision. There is nothing in it to indicate any bias either real or apprehended. In my view there is no evidence outside the Tribunal decision that indicates that the Tribunal member was in some way biased. That claim also must be rejected.
The only other ground that is possible in my mind to be gleamed from the amended application is the one that says in the particulars:
The RRT officer didn't assess all of my statements provided to him as he had listed in his decision letter.
If that is intended to be a claim that the Tribunal ignored relevant material or ignored a key part of the applicant's claim, there is no evidence of that. There are no particulars provided and there is no evidence to show that the Tribunal did that. The fact is that the applicant did not attend the Tribunal hearing and there was insufficient evidence without the applicant's presence to enable the Tribunal to be satisfied.
The applicant says that he did not receive the letter from the Tribunal but there is no reason given as to why that would be and indeed the factual situation would raise a considerable amount of doubt in the Court's mind that the applicant would be aware that he had received a letter from the Tribunal or not. In any event, the Tribunal dispatched the letter and it was the applicant's correct address and was entitled to rely on it.
I read through the decision. There is no jurisdictional error whether claimed by the applicant or any that I can find independently. As there is no jurisdictional error the application must be dismissed.
There is an application for costs on behalf of the first respondent minister. As the applicant has been wholly unsuccessful I see no reason why I should depart from the normal rule that costs follow the event. I propose to order that the applicant should pay the first respondents costs. The sum of $4,500.00 is sought which I understand is inclusive of counsel's fees. This is a matter was commenced prior to 1st December 2005 when the Migration Act was amended. In my view it is an appropriate figure.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 June 2006
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