SZDZQ v Minister for Immigration

[2005] FMCA 1514

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDZQ v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1514

MIGRATION – Refugee – failure to attend Tribunal hearing where the Tribunal was not satisfied on the material before it – inevitable consequence that delegate’s decision would be affirmed in these circumstances – no reviewable error – privative clause decision.

Migration Act 1958, ss.425A, 425(1), 36(2), 65, 426A
Federal Magistrates Court Rules 2001, r.21.02(2)(a)

Minister for Immigration & Multicultural & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679

Applicant: SZDZQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2218 of 2004

Judgment of: Nicholls  FM

Hearing date: 13 October 2005

Date of Last Submission: 12 October 2005

Delivered at: Sydney

Delivered on: 13 October 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. S. Burnett

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. The application is dismissed.

3. The applicant pay the first respondent's costs set in the fixed amount of $2,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrate Court Rules 2001. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2218 of 2004

SZDZQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore/Revised from Transcript)

1. This is an application filed in this Court on 15 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) which was made on 20 May 2004 and handed down on 10 June 2004, to affirm the decision of a delegate of the respondent Minister made on 12 February 2004 to refuse a protection visa to the applicant.  The Tribunal is joined as the second respondent in these proceedings. 

2. The applicant is a national of the People’s Republic of China who arrived in Australia on 30 January 2004 and applied for a protection visa on 11 February 2004.  His claims are set out in the application for a protection visa, which is reproduced at Court Book (“CB”) 1 to CB 25, and in particular at CB 17. (While I note that some part of the photocopied page is obliterated, sense can be made of the applicant's claims). The applicant's claims are also set out, and essentially repeated in similar terms, in the application made to the Tribunal which is copied at CB 48 to CB 51, and in particular at CB 50.  The applicant claimed that he secretly practised Falun Gong in China at the home of a friend who was working at the security bureau in China, and when this friend was detained by Chinese authorities in July 2003, and was forced to disclose all the other persons who practised Falun Gong at his home, the applicant worried about his safety and came to Australia seeking protection. The applicant also variously claimed that he had suffered serious mental torment from the Chinese authorities and that the company employing him had organised brain washing sessions and had issued a warning that anyone found practising Falun Gong would be detained and imprisoned. 

3. Before the Tribunal, the applicant was represented by a migration agent who was nominated in the application to the Tribunal as the “Authorised Recipient” to receive correspondence and to act on the applicant's behalf in relation to his case. The Tribunal wrote to the applicant by letter dated 8 April 2004, and sent this letter to the applicant’s authorised recipient for correspondence, at the address provided in the application to the Tribunal, with a copy also sent to the applicant at his home address as provided in the application for review. I note relevantly, that the applicant's mailing address, as distinct from his home address, was given as the same address as that for the authorised recipient. The letter advised the applicant that the Tribunal had considered the material before it, but was unable to make a decision in his favour on this information alone. It invited the applicant to attend a hearing before the Tribunal to give oral evidence and present arguments in support of his claims. The letter complied with the relevant statutory requirements, ss.425(1) and 425A of the Migration Act 1958 (“the Act”). In particular the letter advised the applicant that if he was unable to attend the hearing that he should contact the Tribunal immediately, and that if he did not attend the hearing, and the Tribunal did not postpone the hearing, it could make a decision in his case without further notice. 

4. The applicant was also provided with a “Response to Hearing Invitation” form to enable him to respond to the Tribunal. At CB 56 it can be seen that a copy of the letter, sent by registered post to the applicant's home address, was returned as “unclaimed” to the Tribunal. Critically, and importantly, there is no evidence before the Court to show that the letter sent by the Tribunal to the authorised recipient was not received by the authorised recipient.  In fact there is evidence that indicates that that letter was received by that recipient as, at CB 57, there is a copy of the “Response to Hearing Invitation” form which was subsequently received by the Tribunal on 15 April 2004 indicating that the applicant did want to attend the hearing. Despite this, on the date of the scheduled hearing, which was 13 May 2004, the applicant did not attend. 

5. In those circumstances the Tribunal, pursuant to s.426A of Act, made its decision without taking any further action to enable the applicant to appear before it. In its decision record the Tribunal noted the applicant's claims, and in particular that in the application for review the applicant had repeated, essentially, the same claims as previously made (CB 69.9). The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugee Convention and found that the applicant did not satisfy s.65 of the Act, the criterion for a protection visa as set out in s.36(2) of the Act.

6. It is clear that the Tribunal's decision (CB 69.7 to CB 70.8) turned on the findings that the applicant had provided scant details to support his claims, generally and in particular, that he practised Falun Gong secretly at the home of a friend.  Further, that the applicant did not say when he was required by his company to attend brain washing classes, and that even if he had attended there was nothing to show that there were any further incidents between the time of the claimed detention by the authorities of his friend in July 2003, and the applicant's departure for Australia in January 2004. The Tribunal noted that the applicant did not claim to have been subsequently detained or imprisoned during this period, and further, the Tribunal found that the applicant had not said when he commenced practising Falun Gong or the nature of his activities in China, and that importantly he had not said whether he was currently practising Falun Gong, or that there was any evidence provided to support his assertion that he was a Falun Gong practitioner.  The findings were made on the basis of the lack of detail in his claims, and because of this the Tribunal found that it could not be satisfied that the applicant was a Falun Gong practitioner or would practice Falun Gong on return to China. 

7. The applicant's originating application to this Court asserted, without particularity or specificity, that the Tribunal made “jurisdiction mistakes” and that the Tribunal refused his application to adjourn the hearing date and that he was not given an opportunity to explain his application. In an amended application filed on 16 December 2004 the applicant complains again that the Tribunal made “jurisdiction mistakes” and that the Tribunal was biased against him.   In support of this complaint the applicant refers to some extracts from the Tribunal's decision record. 

8. At the hearing before me the applicant was unrepresented. I note from the Court file that the applicant was offered the opportunity to participate in the Court's Legal Advice Scheme, but on 15 October 2004 advised that he no longer wished to participate.  At the hearing today before me, the applicant was assisted by an interpreter in the Mandarin language. Ms. Burnett appeared for the respondents.  The applicant stated that the Tribunal dealt with his application “too quickly”, that there were mistakes in law (which when pressed he related to the “hasty” handling of his case) and that there had been a failure by the Tribunal to investigate his claims that he was a Falun Gong practitioner in China.  When pressed, the applicant could not remember where in the material that he had submitted to the Tribunal, or to the first respondent’s Department, that he had asserted that he had been a practising Falun Gong member in Australia. 

9. I should also note at this point that the applicant could not remember whether he had received a copy of the Court Book filed by the first respondent in this matter. In this regard Ms. Burnett tendered a copy of a letter dated 18 November 2004 from the first respondent’s solicitors, addressed to the applicant at the address for service provided in his application to the Court, showing that the first respondent’s solicitors sent a copy of the Court Book to the applicant at this address.

   
   

   I accepted this letter as Respondents Exhibit 1 (“RE 1”). I am satisfied that the first respondent complied with the Court's order (made at the first Court date in this matter on 10 October 2004) to serve copy of the Court Book on the applicant.

10. In relation to the applicant's reliance on the extracts of the Tribunal's decision record to show that the Tribunal made “jurisdiction mistakes”, these references do not rise above a request for impermissible merits review of the nature referred to in the Full Federal Court decision of Minister for Immigration & Multicultural & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259. Nor can the applicant's allegation of bias on the part of the Tribunal be made out by simply pointing to these extracts. For the applicant’s benefit allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member, by their attitude and conduct, can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of bias carry with them an onus that the allegations must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support this claim. An allegation of apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, [27]-[32]). In the absence of any particularity, or indeed of anything further, the Tribunal’s decision record on its own could not, in the circumstances of this application, be sufficient to show bias or apprehended bias on the part of the Tribunal and in any event does not do so.

11. The applicant also complains that it was a mistake for the Tribunal to find that he had not said whether he is currently practising as a Falun Gong practitioner in Australia. He claims that this was a mistake because he had mentioned being a Falun Gong member and practitioner.  This assertion is not supported by anything in the material before me.  I can see no reference in the application to the Tribunal, or for that matter in the application to the first respondent's Department, that the applicant made any assertion that he was practicing Falun Gong in Australia. Nor at the hearing before me did the applicant point to any material to support his claim that he had made this assertion.

12. The applicant also asserts in his originating application that the Tribunal refused his application for an adjournment of the date of the hearing before it.  The applicant has brought forward no evidence to support this claim that he made any such application to the Tribunal, or that his migration agent, acting on his behalf, made any such approach.  At the hearing before me the applicant asserted, somewhat in contradiction, that he had not been told of the hearing date and laid this at the feet of his migration agent.  Again there is no evidence to support this assertion, made from the Bar Table. But in any event, any failure of this type on the part of the migration agent would not go to show jurisdictional error on the part of the Tribunal. Critically on the material before me, there is nothing to show that the applicant ever sought any adjournment of the hearing date, nor could the applicant provide any specificity to this claim.

13. The Tribunal notified the applicant that it could not be satisfied that a favourable decision for the applicant could be made, and invited the applicant to a hearing to provide further evidence and argument in support of his claim.  The letter of invitation was sent to the applicant, and importantly, to his migration advisor who was, at the applicant's own direction the authorised recipient for correspondence. The Tribunal received advice by way of the “Response to Hearing Invitation” form that the applicant would attend the hearing but subsequently it is apparent on the material before me, that without explanation to the Tribunal, the applicant did not attend. Beyond the mere assertion now that this was the fault of the migration agent, the applicant has provided no evidence, or any particularity, as to how this was the agent’s fault. There is nothing to show that the agent acted above, or without instruction, in responding to the Tribunal that the applicant would attend the hearing. Having engaged an agent to act on his behalf and to receive correspondence on his behalf, there is some obligation on the applicant to ensure effective communication between him and his agent. In circumstances where the applicant has told the Tribunal that he wants communication through his agent, and the Tribunal communicates only through his agent, but also attempts to contact him personally at the only other address provided by the applicant, then there can be no jurisdictional error in the Tribunal’s decision where the applicant does not attend the hearing scheduled by the Tribunal.  I note also that in circumstances where an applicant failed to appear before the Tribunal in the face of a letter as in the case before me, (bearing in mind that there is no evidence before me of any failure by the applicant's agent in relation to the hearing invitation), a Full Federal Court has described rejection of the applicant’s case as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].

14. Therefore, the applicant cannot now complain, when he was put on clear notice as to the possibility of an adverse decision, given the opportunity to attend a hearing and chose without explanation not to attend the hearing, that the Tribunal has in fact made a decision adverse to his application. But even if this was not as a result of any “fault” on the part of the applicant, I note in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 the Court cited the Full Federal Court’s decision in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16], where it was said:

    "Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence."

15. The applicant also complained before me today that in acting in a “hasty” manner the Tribunal did not investigate his claims. In this regard I note that there is no obligation on the Tribunal to embark on any such investigation as implied by what the applicant has said. It is up to an applicant to put forward all the relevant circumstances of his claims, and the law (s.65 of the Act) requires that the Tribunal achieve a requisite level of satisfaction that a protection visa (particularly in relation to the matters set out in s.36(2) of the Act and Article 1A(2) of the Refugees Convention) should be granted to the applicant.

16. The Tribunal looked at all of the applicant's claims, put the applicant on notice that it could not be satisfied on what was before it, and gave the applicant an opportunity to provide further material and argument in support of these claims. In those circumstances there is clearly no obligation on the Tribunal to make further investigation, and the Tribunal was entitled to proceed to make a decision in the fashion that it did, pursuant to s.426A of the Act.

17. On the material before me, the findings by the Tribunal were open on what was before it. I should note that in the context of the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and the effect of the Full Federal Court decision in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679, the applicant clearly republished his claims to the Tribunal in his application to it. It was clearly open to the Tribunal not to be satisfied that the applicant met the criteria and in particular the criterion set out in s.36(2) of the Act for the grant of a protection visa. I can see no error, or jurisdictional error, in what the Tribunal has done. This is a privative cause decision. The application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  25 October 2005