SZCZX v Minister for Immigration
[2006] FMCA 786
•31 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCZX v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 786 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – whether the RRT gave sufficient notice of RRT hearing which had been deferred considered – whether the RRT breached s.424A in relation to part of the reasons of the delegate relied upon by the RRT considered. PRACTICE AND PROCEDURE – Requirement that a respondent pay a setting down fee payable by the applicant but unpaid. |
| Federal Magistrates Court Regulations, r.6(4) Migration Act 1958 (Cth), ss.420, 424, 424A, 425A, 426A, 427 |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration v NAMW (2004) 140 FCR 572 Su & Ors v Minister for Immigration [2006] FMCA 83 SZAZY v Minister for Immigration (No 2) [2005] FMCA 1635 SZCDH v Minister for Immigration [2006] FMCA 78 SZEFM v Minister for Immigration [2006] FCA 78 SZEXB v Minister for Immigration [2005] FMCA 1771 SZFHC v Minister for Immigration [2005] FMCA 1399 SZFIH v Minister for Immigration [2005] FMCA 1847 SZFKF v Minister for Immigration [2005] FMCA 1152 SZFML v Minister for Immigration (No 2) [2005] FMCA 1947 SZGWD v Minister for Immigration [2005] FMCA 1956 WACW v Minister for Immigration [2002] FCAFC 155 |
| Applicant: | SZCZX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG744 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 31 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr J D Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the application.
The Court directs that the words “and Indigenous” be deleted from the name of the first respondent.
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal handed down on 19 February 2004.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the application before it according to law.
The first respondent is to pay the sum of $273 to the applicant in respect of the filing fee paid by the applicant.
The first respondent is to pay the sum of $345 to the Court, being the unpaid setting down fee otherwise payable by the applicant.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG744 of 2004
| SZCZX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 19 February 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon his practise of Falun Gong. Relevant background facts are set out in the Minister's outline of written submissions filed on 29 May 2006. I adopt as background paragraphs 2 through to 7 of those written submissions for the purposes of this judgment:
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 14 December 2002 and lodged an application for a protection visa on 24 December 2002. He claimed to fear persecution at the hands of the Chinese authorities on the basis of his adherence to the practice of Falun Gong.
A delegate of the first respondent made a decision on 18 February 2003 to refuse to grant the applicant a protection visa and on 17 March 2003 the applicant applied to the RRT for review of that decision.
By letter dated 22 September 2003 the RRT invited the applicant to attend a hearing to be conducted on 30 October 2003 at 10.30am. However, by letter dated 29 October 2003 the RRT informed the applicant that it could not longer have a hearing at that time and that instead the hearing would be held at 12.00pm. on 30 October 2003.
The applicant attended the hearing conducted by the RRT. The RRT handed down its decision to affirm the delegate’s decision on 19 February 2004. The application to this Court for review of the RRT’s decision was made on 18 March 2004.
RRT’s decision
The RRT was not satisfied that the applicant was or ever had been a Falun Gong adherent or practitioner. It also found that, even if he had suffered the harm he claimed to have suffered was not for any Convention reason.
For these reasons the RRT found that the applicant had no well‑founded fear of persecution for a Convention reason and so did not meet the criteria for the grant of a protection visa.
The applicant relies upon his amended application filed on 3 September 2004. He has not filed any evidence in support of the application. The only evidence I have before me is the court book filed on 19 July 2004. Neither has he filed any written submissions, although he did take the opportunity to make oral submissions in general terms.
The amended application asserts three jurisdictional errors, with particulars. The first ground is an assertion of error of law by reference to the reliance upon the RRT of country information. The applicant asserts a breach of s.424 of the Migration Act 1958 (Cth) (“the Migration Act”), although he probably intended this to be a reference to s.424A. Secondly, the amended application asserts an absence of natural justice by reference to the failure by the RRT to obtain oral evidence from the applicant's friend, a Mr Lo. Thirdly, the amended application asserts a failure to carefully consider the applicant's claims based on the procedures and criteria prescribed in the UNHCR Handbook. These grounds are adequately dealt with in the Minister's submissions. I agree with and adopt for the purposes of this judgment paragraphs 8 to paragraph 12 of those written submissions:
The first ground in the amended application is that the RRT failed to provide the applicant with complete ICI information and so breached s.424A. The short answer to this is that the information relied upon by the RRT was not specifically about the applicant and so fell within s.424A(3)(a): Minister for Immigration v NAMW (2004) 140 FCR 572.
The second ground is that there was a denial of procedural fairness. There appear to be three particulars to this ground: first, that the RRT did not use all the means at its disposal to produce necessary evidence in support of the applicant’s claims; secondly, the RRT failed to seek further oral evidence from a friend of the applicant; and thirdly, the RRT failed to follow the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol relating to the Status of Refugees (Handbook).
As to the first particular, it was a matter for the applicant to put forward whatever claims and evidence he wished in support of his application for review and then was a matter for the RRT to assess whether on the basis of that material, it was satisfied that the applicant met the criteria for the grant of a visa: Abebe v Commonwealth (1999) 197 CLR 510 at 576, [187] per Gummow and Hayne JJ.
The second particular faces the difficulty that the applicant indicated to the RRT that he did not want it to take oral evidence from any witness: court book, page 57. In light of this, as well as the absence of any obligation under the Act, the RRT was not obliged to take oral evidence from the applicant’s friend.
The Handbook is not part of Australia domestic law and so failure to follow it does not give rise to any error of law: WACW v Minister for Immigration [2002] FCAFC 155 at [17].
In paragraphs 13 to 16 of the written submissions Mr Smith, for the Minister, raises an issue not raised by the applicant. That is, whether the RRT committed jurisdictional error by failing to give the requisite period of notice in respect of the adjournment of the hearing to which the applicant was invited. The submissions are:
Although it is not raised by the applicant, there is an issue concerning the postponement of the hearing from 10.30 a.m. to 12.00 p.m. on 30 October 2003. That issue is whether, on a proper construction of the Act, the Tribunal was required by s 425A to give the applicant the prescribed period of notice when changing the time of the hearing, namely, 14 days from the date of receipt: Regulation 4.35D.
There is no question that the letter of 22 September 2003 [CB 55] complied with s 425A. The circumstances that followed are properly characterised as an adjournment of the hearing rather than an invitation to a new hearing. First, the change was only a matter of 1.5 hours; secondly, the applicant clearly had no difficulty in attending; and thirdly, there was no objection to the change. This means that there was no requirement to give the prescribed period of notice: SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 (on appeal from a judgment of this court). That case turned on the broad meaning of “adjourn” which includes to “defer or to postpone to a future meeting of the same body”: [12].
To construe s 427 as the source of power to adjourn a hearing unfettered by s 425A does not mean that the Tribunal could give an open invitation in the way discussed by Barnes FM in SZFKF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1152 at [47]. As this was an essential part of the reasoning in SZFKF that case is inconsistent with SZEFM and must not be followed.
Quite apart from issues of binding precedent, SZFKF is wrong and ought not to be followed. First, the construction favoured in SZEFM gains support from the definite article in s 426A(1); secondly, it is consistent with the scheme of Part 7 and, in particular, the obligation on the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick: s 420(1). Thirdly, a construction that would require a further notice period would lead to absurdity. This is highlighted by the facts of this case: a change of 1.5 hours would, on the construction arrived at in SZFKF, require at least a further 14 days notice.
As is noted in those submissions, the issue was dealt with in this Court in the case of SZFKF v Minister for Immigration [2005] FMCA 1152 per Barnes FM, in particular at paragraph 47. As is also noted in the Minister's submissions, the issue has been dealt with by the Federal Court on appeal from this court in SZEFM v Minister for Immigration [2006] FCA 78, especially at paragraph 12. It is unfortunate that Bennett J in SZEFM was not referred to the decision of Barnes FM in SZFKF. Neither does it appear that the decision of Barnes FM was referred to by Nicholls FM at first instance in SZEFM. The decision of Barnes FM is comprehensively and cogently reasoned and has been considered at some length in at least nine later decisions of this Court. Nicholls FM distinguished SZFKF in SZEXB v Minister for Immigration [2005] FMCA 1771; Smith FM also distinguished it in SZFIH v Minister for Immigration for Immigration [2005] FMCA 1847. More recently Smith FM expressed some doubt about the authority of SZFKF in SZGWD v Minister for Immigration [2005] FMCA 1956 and discussed the decision in the context of a number of decisions of this Court on the point in Su & Ors v Minister v Immigration [2006] FMCA 83.
The decision of Barnes FM has been followed in this Court on a number of occasions. Raphael FM followed it in SZCDH v Minister for Immigration [2006] FMCA 78 at [12]. Scarlett FM has followed the decision on three occasions, those being SZAZY v Minister for Immigration (No 2) [2005] FMCA 1635 at [28]; SZFHC v Minister for Immigration [2005] FMCA 1399 at [32]; SZFML v Minister for Immigration (No 2) [2005] FMCA 1947 at [52]. In that last case, Scarlett FM noted that the decision of Barnes FM was subject to appeal. I understand, however, that that appeal has been withdrawn because of an unrelated issue. I am also told by Mr Smith that the notice issue is reserved before the Full Federal Court in SZFML v Minister for Immigration.
Given the detailed consideration that has been given to the decision of Barnes FM in this Court and the approval of Her Honour's decision on a number of occasions, and my inability to distinguish this case, if I were unencumbered by any binding decision of the Federal Court, I would have been inclined to follow SZFKF. However, I accept the Minister's submission that, at least pending the decision of the Full Court in SZFML, I am bound by the decision of Bennett J in SZEFM. It matters not whether I consider that decision to be right or wrong. I see no point in awaiting the outcome of the Full Court decision and, on the authority of the decision in SZEFM, I find that the failure by the RRT to give the requisite period of notice in respect of the adjourned hearing does not establish jurisdictional error.
There remain two issues which I raised with Mr Smith during the course of argument. These concern a letter written by the RRT to the applicant dated 5 November 2003, reproduced on pages 72 and 73 of the court book. In that letter the RRT requested the provision of additional information by the applicant. The letter relevantly states:
The Tribunal requests that you provide the following additional information.
At hearing you said you were not familiar with the detail of the finding of the Minister's delegate on your original protection visa application, sent to you on 18 February 2003. Please find enclosed a copy of that decision. There are a number of aspects adverse to y our claims, please comment?
In particular, it would be helpful to have your comments on the delegate's statement, quoting the Falun Dafa Bulletin Board, that genuine Falun Gong practitioners seeking political asylum would obtain proofs through local Family Gong assistance centres and local Falun Dafa societies.
More generally, any information and material you can provide supporting your claim to be a Falun Gong practitioner and explaining your beliefs and reasons for being a Falun Gong practitioner would be helpful to your claims.
The information was requested by 28 November 2003. The applicant was warned that if he did not provide the additional information sought by that date the RRT might make a decision on the review without further notice.
It is not clear to me whether the RRT considered this letter to be an invitation pursuant to s.424 of the Migration Act or an invitation pursuant to s.424A. The warning at the end of the letter suggests that the RRT regarded it as one or the other. The letter does not follow the form that I have come to anticipate in s.424A notices even at the relevant time. The letter would not, in my view, meet the requirements of s.424A in relation to the unparticularised adverse information said to be contained in the delegate's reasons. The form and content of the letter suggests to me that it was probably regarded by the RRT as an invitation to comment pursuant to s.424. Among other things the invitation was not restricted to the opportunity to comment upon adverse material.
The applicant, through his migration agent, provided a response dated 28 November 2003. That attached a statutory declaration from Mr Pai Ping Lo stating, relevantly, that he knew the applicant, that he regularly practised Falun Gong with him and that Mr Lo knew the applicant to be a pious Falun Gong practitioner. Mr Lo also ventured the opinion that the applicant would face harm in China should he return there. The information provided by the applicant was not the official Falun Gong information sought in the third paragraph of the RRT’s letter. It appears to have been provided in response to the more general invitation set out in the fourth paragraph of the letter. In any event, s.424 required the RRT to take the information received into account in making its decision. The first question is whether the RRT did so. The information is referred to on page 89 of the court book. The only discussion about it occurs on page 95 of the court book. Relevantly, the RRT presiding member states:
The Tribunal does not accept the applicant's claim to be a Falun Gong adherent.
· His written and oral testimony included only minimal material on his commitment to the Falun Gong movement and no evidence in support of his statement about his Falun Gong activities in China.
· He has not provided any supporting information about his claimed Falun Gong activities in Australia apart from the statutory declaration from a person claiming to be a fellow Falun Gong practitioner familiar with the applicant's Falun Gong activities.
· He has provided no comments on his beliefs and on his reasons for being a Falun Gong practitioner, despite the Tribunal's invitation to him in its letter of 5 November 2003 to address this aspect of his claims.
The Tribunal is not satisfied, on the basis of this very limited evidence, that the applicant is or ever has been a Falun Gong adherent or practitioner. (emphasis added)
It is apparent from those reasons that the presiding member was aware of the material provided by the applicant and took it into account in considering whether the applicant had advanced sufficient material to cause the presiding member to accept his claims of being a Falun Gong adherent. The presiding member found that the RRT was not so satisfied on the basis of the limited material provided. Troublingly, in the next paragraph, the presiding member goes on to say:
As the Tribunal does not find the applicant's claim to be a Falun Gong member to be credible, it is unable to find that the harm he claims to have experienced at the hands of the Chinese authorities resulted from such membership.
This appears to be an adverse credibility finding which does not sit well with the more limited finding that the RRT was not satisfied about the applicant's claims. There is no finding that the statutory declaration was a fabrication and neither is there any finding that the person who made the statutory declaration was untruthful or mistaken. If the RRT was actually making a credibility finding I would have expected to see some finding in relation to the worth of the statutory declaration. Mr Smith pressed upon me that I should find that the statement by the presiding member that the applicant's claim was not credible to be merely unfortunate expression. I accept that the courts reviewing tribunal decisions should not view them with an eye too finely attuned to identify error. Fundamentally, the presiding member was not satisfied with the adequacy of the information provided by the applicant. The reference to a lack of credibility is troubling, but it does not constitute the substance of what the RRT found. While the contrary is definitely arguable I find that the statutory declaration provided by the applicant in response to the s.424 invitation was adequately dealt with.
The remaining issue is whether there was an obligation upon the RRT to give the applicant the opportunity to comment upon the reasons for decision of the delegate. Some opportunity was provided in the letter dated 5 November 2003 but, excepting one particular, the adverse content of the delegate's reasons was not identified and hence an obligation under s.424A was not met, if there was one. On page 94 of the court book the presiding member says:
The applicant acknowledged in his oral testimony that he had applied for his Australian visa in person in June 2002, and that this had not led to any adverse consequences. The Department commented in its reasons for rejecting the applicant's original protection visa application that the applicant would not have been able to leave China on a passport in his own name if he had been of adverse interest to the authorities. The Tribunal, in its letter of 5 November 2003 to the applicant, invited him to comment on this assessment by the Department, along with other aspects of the Department's decision and its stated reasons for that decision which were adverse to the applicant's claims, but has received no response.
Against this background the Tribunal finds that the applicant's claim to have been of adverse interest to the Chinese security authorities lacks credibility.
Mr Smith did not seek to rely upon s.424A(3)(b) of the Migration Act in relation to the delegate’s reasons per se. He did seek to rely on s.424(3)(a) in relation to the particulars of the delegate's decision which were disclosed in the letter of 5 November 2003, but for present purposes that information is not relevant. The relevant information contained in the delegate's reasons referred to by the presiding member was not disclosed with any particularity in the letter and it was information specifically about the applicant.
Mr Smith made several submissions directed to the proposition that no obligation arose under section 424A(1). One of those submissions was that the passage I have quoted reflected merely the RRT’s reasoning process following a similar path to that of the delegate. Further, Mr Smith submits that to the extent that any information was determinative it was the failure by the applicant to respond to the letter of 5 November 2003, and that that failure should properly be regarded as information provided by the applicant to the RRT for the purposes of the review. To that extent the minister does rely upon s.424A(3)(b).
I understand the submissions but I do not accept them. It is apparent from the second paragraph of the letter of 5 November 2003 that the RRT accepted that the statement of reasons for the delegate's decision had not been provided by the applicant to the RRT for the purposes of the review. Indeed, the RRT was providing them to the applicant and inviting comment. At the time the letter was sent the presiding member appeared to regard information in that statement of reasons as adverse to the applicant's claims. It is open to me to conclude from that that at the time the presiding member considered that there was information in the delegate's reasons which might be a reason, or part of the reasons, for affirming the decision. This is, if anything, reinforced in the statement I have quoted from page 94 of the court book.
It is true that the applicant failed to respond to the invitation to comment on the delegate’s decision and that failure was also material to the adverse credibility finding made by the presiding member. However, the failure to respond cannot be considered in a vacuum. It can only be considered by reference to the information about which comment was sought. That information was the reasoning process adopted by the delegate in relation to the issue of whether the applicant was of any adverse interest to the Chinese authorities. The presiding member, somewhat unusually, chose to use that reasoning process as information supporting the decision under review. In those unusual circumstances I find that an obligation arose to disclose that information to the applicant pursuant to s.424A(1). As I have already found, the letter of 5 November 2003 did not meet the obligation of disclosure required by that section in relation to the information relied upon by the presiding member.
There was therefore a breach of s.424A(1) constituting jurisdictional error. This calls for the provision of relief in the form of the constitutional writs of mandamus and certiorari.
I will order that a writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal handed down on 19 February 2004.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to re-determine the review application before it according to law.
I order that he Refugee Review Tribunal be joined as the second respondent to the application and I direct that the reference to “Indigenous” be deleted from the name of the first respondent.
The applicant was not legally represented and has not incurred any legal expenses. He has paid a filing fee of $273 which he is entitled to recover from the Minister. He was also obliged to pay a setting down fee of $345 which on the basis of the material in the correspondence file I find that he has not paid. Under the Federal Magistrates Court Regulations[1] it is open to me to require a respondent to pay that fee.
[1] Regulations 6(4)
I will order that the first respondent pay the sum of $273 to the applicant in respect of the filing fee paid by the applicant and I will further order that the first respondent pay the sum of $345 to the Court, being the unpaid setting down fee otherwise payable by the applicant.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 7 June 2006
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