SZFAB v Minister for Immigration

[2006] FMCA 224

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFAB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 224

MIGRATION – Review of decision of Refugee Review Tribunal – applicant did not appear before the Tribunal – Tribunal fulfilled statutory requirements in inviting applicant to hearing before it – no jurisdictional error – application dismissed.

Migration Act 1958, ss.36(2), 65, 424A(1), 424A(2), 424A(3)(b), 426A, 441G, 441G(2)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
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: SZFAB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3165 of 2004

Judgment of: Nicholls FM

Hearing date: 9 February 2006

Date of Last Submission: 9 February 2006

Delivered at: Sydney

Delivered on: 9 February 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondent: Ms McNamara

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $2,730.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3165 of 2004

SZFAB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL 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 25 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 September 2004 and handed down on 14 October 2004 to affirm the decision of the delegate of the respondent Minister made on 1 June 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 citizen of The People’s Republic of China who arrived in Australia on 19 February 2004 and applied for a protection visa on 8 March 2004. Her claims to protection are set out in her application for a protection visa reproduced at Court Book (“CB”) 1 to CB 28 and in her application for review to the Tribunal reproduced at CB 39 to CB 44, particularly in an attached statement at CB 43 to CB 44. The application for review was made on 28 June 2004.

3. The applicant’s claims to protection were on the basis of her membership of the Falun Gong organisation. She claimed that she joined Falun Gong in 1999 and when the Communist Party outlawed it at the end of 1999 she and other members of Falun Gong “gathered in front of government house” and sat quietly to appeal that the Government release members in jail and “stop the torture”. She claimed that she was arrested along with three leaders and detained for two days in 2001. She claimed that she was put in “Shenyang No. 2 jail” and that she was tortured and given “very hard work to do” and because she loved her family wrote a “confession letter”. She further claimed that after her release she was still persecuted and that in 2001 she lost her job because of the pressure being exerted by the local police not to employ members of Falun Gong. In 2001 she again was involved in a protest and despite other members being arrested, evaded capture, and hid in the countryside. She secured employment in another company and when she was sent to Australia sought asylum on the basis of her Falun Gong membership as she fears she will be gaoled upon return to China.

4. On 27 August 2004 the Tribunal wrote to the applicant advising that it had considered all the material before it but was unable to make a favourable decision on that information alone and invited the applicant to give oral evidence and present arguments at a hearing scheduled for 23 September 2004 (with reference to the copy of the letter at CB 47 to CB 48 clearly incorrectly reported as being “24 September” in the Tribunal’s decision record). The letter was sent to the applicant at her residential address and mailing address and to her authorised recipient for correspondence by registered mail. The applicant was advised that if she did not attend the hearing, and a postponement was not granted, the Tribunal could make a decision on her case without further notice, pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”). The Tribunal decision record shows that no response was received and the letters were not returned as unclaimed. As the applicant did not appear before the Tribunal on the day scheduled the Tribunal made its decision, without giving the applicant any further opportunity to appear before it.

5. The Tribunal’s “Findings and Reasons” are reproduced at CB 59.5 to CB 60.1. The Tribunal:

   1)Accepted that the applicant was a national of China (CB 59.6).

   2)Noted that the claims made in her protection visa application were “mere assertions” and without the opportunity to obtain oral evidence, was not prepared to simply accept them (CB 59.8).

   3)On that basis was not satisfied that the applicant was a Falun Gong practitioner, or that she had any problems with the authorities because of Falun Gong related activities (CB 59.9) or that the authorities would take an interest in her because she had applied for a protection visa (CB 59.9 to CB 60.1).

   On that basis the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason and as such affirmed the decision of the delegate of the respondent Minister.

6. The applicant’s originating application, filed on 25 October 2004, contains a restatement of the applicant’s refugee claims and clearly seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). In any event the applicant filed an amended application on 20 January 2005 and claimed:

   “1. The Tribunal acted unreasonably in exercising the discretion to make a decision unfavourable to the applicant in her absence because:

   (a)the applicant’s failure to appear was no fault of her own;

   (b)the applicant believed that the Tribunal would be notified    that she was not able to appear on the scheduled day.

   2.The Tribunal failed to accord to the applicant natural justice by exercising the discretion to make a decision unfavourable to the applicant in her absence because:

   (a)the applicant’s failure to appear was no fault of her own.

   (b)the applicant believed that the Tribunal would be notified that she was not able to appear on the scheduled day.”

7. At the hearing before me the applicant appeared unrepresented with the assistance of an interpreter in the Mandarin language. Ms McNamara appeared for the respondent Minister. The applicant stated at the hearing before me that:

   -She has lost the opportunity to provide oral evidence about her case “face to face”.

   -When the Tribunal notified her of the date of the hearing she was “far away and did not have transportation” to attend the Tribunal hearing.

   -She asked her “friend of an agent” to notify the Tribunal of her inability to attend, but that she “did not know” whether this phone call was actually made or not.

   -She just understood that the Tribunal’s “refusal” of her application was “unreasonable”.

   -She wishes to be given a further opportunity to present her evidence to the Tribunal and engage the services of a solicitor to assist her in this regard.

   -Through part-time work she has saved some money and is now financially capable of engaging a lawyer to represent her.

   -She wishes to obtain some evidence from China to prove that she had been persecuted in China.

8. The relevant statutory requirements, s.65 and s.36(2) of the Act, provide that a protection visa must only be granted if the decision maker is satisfied that the person applying for the protection visa relevantly satisfies the requirements as set out in s.36(2) and meets the definition of refugees contained in Article 1A(2) of the Refugees Convention. I accept and adopt for the purposes of this Judgment paragraph 16 of the respondent’s outline of submissions:

   “16.The RRT appropriately considered all the information that had been provided by the applicant, but without the opportunity to test her claims it could not be satisfied of their truth.

   16.1In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215, the Full Court, at [15]-[16], concluded a legislative regime which required a positive state of satisfaction as to whether protection obligations are owed mandated a refusal decision if that state of satisfaction is not reached. This conclusion is supported by other Full Court decisions. (See for example NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).”

   On what was put before the Tribunal, it could not be satisfied that the applicant met the requisite criterion for the grant of a protection visa. No jurisdictional error is revealed merely because the facts that were put forward by the applicant did not cause the Tribunal to be satisfied as to the applicable criteria (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF of 2003”)).

9. I note that in similar circumstances where an applicant failed to appear before the Tribunal in the face of a letter as in the case before me, putting the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicant, a Full Federal Court has described rejection of the application as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. Clearly the applicant was put on notice as to the Tribunal's preliminary view and given the opportunity to provide further material by way of evidence at a hearing before the Tribunal or oral submissions in support of the claims. The applicant did not attend. The applicant cannot now complain that the Tribunal was not able to be satisfied as to the matters that it needed to be so satisfied before a protection visa could be granted. In VSAF of 2003 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.”

10. The applicant now claims that the failure to appear at the hearing was no fault of her own and that she believed the Tribunal would be notified that she was not able to appear on that day. Before me she said that she relied on a friend/agent to make a phone call on her behalf to notify the Tribunal that she was unable to attend, which implies that the applicant was aware of the time and date of the hearing but was unable to attend due to difficulties with transportation to the Tribunal. 

11. The applicant appeared unrepresented before me although I note from the Court’s file that she did access the Court’s Legal Advice Scheme and consulted a lawyer on the panel of the scheme on 24 December 2004 and was given advice on 4 January 2004. Nonetheless, I did look to see whether any other ground of review could be discerned from the material before me. In this regard I note that to the extent that it could possibly be said that there may be an issue flowing from the High Court’s decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 when viewed in light of the majority in the Full Federal Court decision of Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 (“Al Shamry”) in that the Tribunal made reference in its decision record to matters put in the protection visa application submitted to the first respondent’s Department such that on an application of the dicta in AlShamry such information would not have been given to the Tribunal for the purposes of the application for review and that therefore to the extent that the Tribunal relied on this information should have been put to the applicant pursuant to s.424A(1) of the Act in the manner set out in s.424A(2).

12. In recounting the applicant’s claims the Tribunal noted at CB 69.8 that the applicant repeated claims she had made in her protection visa application in a statement submitted with her review application. A comparison of the applicant’s claims set out in her protection visa application at CB 19 reveals that this is exactly replicated in the statement attached to the application for review to the Tribunal. The matters set out by the applicant at CB 20 to CB 22 in the application for a protection visa in response to specific questions in that application form, while put in the context of answering specific questions, are essentially as claims similar to those put before the Tribunal in the attached statement to the Tribunal. In that sense, to the extent that there could be said to be any difficulty on the part of the Tribunal’s decision in light of the cases cited above, it is clear that the applicant republished her claims to the Tribunal by the attached statement to the application for review and as such this information falls within the exception set out in s.424A(3)(b) of the Act from the requirement to put such information to the applicant pursuant to s.424A(1).

13. The Tribunal’s letter of 27 August 2004 inviting the applicant to a hearing before the Tribunal was sent to the applicant’s authorised recipient for correspondence at the address for that person consistent with the applicant’s advice in her application to the Tribunal (CB 40). Copies of this letter were sent to the applicant at the same address which the applicant had given (CB 39) as her mailing address and also to her home address as set out at CB 39 being her application for review to the Tribunal. I note in particular the three registered post numbers recorded at CB 47 in relation to this correspondence. The Tribunal’s checklist reproduced at CB 49 confirms that the invitation was sent to the three addresses and that the Tribunal’s officer took steps to search for a more recent address (I note incidentally that the address of the authorised recipient, which was also the applicant’s mailing address as advised in the application for review to the Tribunal, is the same address provided by the applicant as her address in both her application and amended application to this Court). There is nothing in the material before me to contradict the Tribunal’s statement in its decision record at CB 59.3:

    “No response was received to the invitation. Neither the invitation nor the copy sent to the applicant's residential address were returned unclaimed to the Tribunal.”

14. For the purposes of completeness, I also note that CB 52 to CB 53 contains a copy of an envelope which appears to have been addressed to the applicant returned to the Tribunal as unclaimed and date stamped as having been received by the Tribunal on 1 October 2004. While this predates the date of the handing down of the decision on 14 October 2004, there is nothing to show that this envelope contained any one of the three letters of invitation to the hearing sent by the Tribunal to the applicant. In any event, from the sequence of the documents contained in the court book before me, it is quite possible that this envelope related to one of the two copies of the letter sent by the Tribunal to the applicant and to her authorised recipient for correspondence dated 27 September 2004 (CB 52-CB 51) notifying the applicant that a decision had been made and would be handed down on 14 October 2004.

15. Critically however, the application for review to the Tribunal reveals that the applicant did nominate a person to act on her behalf and to be the authorised recipient for correspondence about her application. The Tribunal’s application form clearly shows that if such a person is nominated that all correspondence would be sent to this person. Although it is clear from what is contained at CB 40 that the applicant did not also authorise the authorised recipient to act on her behalf in relation to her case, but nonetheless an authorised recipient was nominated for the purposes of receiving correspondence. As such the provisions of s.441G of the Act provide that the Tribunal must give the authorised recipient, instead of the applicant, any document that it would have otherwise given to the applicant, although this does not prevent the Tribunal from giving the applicant a copy of the document, and that pursuant to s.441G(2) of the Act if the Tribunal gives the document to the authorised recipient the Tribunal is taken to have given the document to the applicant.

16. There is nothing before me to show that the letter of invitation was not given to the applicant’s authorised recipient for correspondence. In fact and further, a copy of the Tribunal’s “CNS case notes” relating to the applicant (CB 72) shows that on 20 September 2004 an officer of the Tribunal rang the applicant’s “adviser” to check the applicant’s current address. The “advisor” is reported as saying that the applicant was still living at the same address and that he would confirm with the applicant whether she is coming to the hearing or not and that he would send the “Response to Hearing Invitation” form “as soon as possible”. Nor is there anything before me to show that any such action was taken.

17. Further, on the material before me, I can see no jurisdictional error in what the Tribunal has done. The applicant put forward claims in her application for a protection visa. These were essentially repeated before the Tribunal. The Tribunal formed a preliminary view that on what was before it, it could not be satisfied that the applicant was a person to whom Australia owed protection; it therefore invited the applicant by the letter sent at least to her authorised recipient for correspondence to a hearing. The applicant, without explanation to the Tribunal, did not attend the hearing. On what was before it, the Tribunal could not reach the requisite level of satisfaction that the applicant should be given a protection visa. This was certainly open to the Tribunal on what had been put before it. 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:  Wagma Aziza

Date: 9 February 2006