SZFBF v Minister for Immigration
[2005] FMCA 350
•10 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFBF v MINISTER FOR IMMIGRATION | [2005] FMCA 350 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Falun Gong practitioner – China – invitation to a hearing received by adviser – ss.425 – 426A – Wednesbury unreasonableness – stringent test – no error of law – incompetent – application dismissed. Migration Act 1958 (Cth) Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 |
| Applicant: | SZFBF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG3386 of 2004 |
| Delivered on: | 10 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 10 March 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M Seymour |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3386 of 2004
| SZFBF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 20 August 2002 and handed down on 17 September 2002.
The applicant is a citizen of China who arrived in Australia on 17 June 2000 and applied for a protection visa on 8 June 2001. On 9 July 2001 she was asked by the delegate of the Minister to comment on certain propositions that were adverse to her claim. She did not respond to that request. On 30 August 2001 the application for a protection visa was refused by a delegate of the Minister and on 28 September 2001 she applied to the Tribunal for review. On 20 August 2002 the Tribunal made its decision affirming the decision of the delegate and it was handed down on 17 September 2002.
Claims before the Department and the Tribunal
The claims before the Department and the Tribunal centred upon the applicant’s alleged participation in the activities of Falun Gong. These are set out in fairly brief terms at pages 4 and 5 of the Court Book:
3.1 Claims.
3.1.1 The applicant claims that she was working as a manager at Harbin Railway Property Section from December 1989 to March 2000. Then she started working as the manager of Jinlong Paper Products Co. in Harbin. Since May 1998, the applicant started practicing Falungong with some friends and workmates. As a matter of fact, the applicant would often go to Juzhan Park near her residential place in the morning and practice for about half an hour in the park before going to work. The applicant would share experience, with her fellow practitioners over there, of rotating falun (a small wheel) in her lower abdomen so that her mental world would be elevated. They slogan is, “Truthfulness, Kindness and Tolerance”.
The applicant claims that in June of 2000, she came to Australia on a temporary business visa. She has been in Australia for nearly one year during which period she has been practicing Falun Gong all the time. She has been attending practice at Cabramatta, NSW. She has become a confirmed Falun Gong practitioner all these years. She practices Falun Gong every day at home. She actively participates [in] all the major activities organised by Falun Gong organisation in Sydney.
The applicant now has many falundafa friends and experienced real religious freedom in Australia. Yet the applicant has a fear that if she were to return, she would be placed under arrest for what she had done because by the time she left China, Falun Gong was already banned by the authorities.
The applicant, for the reasons given above is unwilling to avail herself of the protection of her home country and she considers that there is a great risk of being deprived further of her basic human rights and freedom, of being arrested for the activities she conducted, although these activities were only aimed by the applicant to fight for her right to survive, and those who are in the same situation to survive. The applicant claims that she would not be able to survive in her home country any more under [the] current regime for what she had done in China and what she intends to do now in Australia.
Based on the reasons cited above, the applicant has applied for a protection visa in Australia to avoid returning to her home country.
The Tribunal hearing and decision
At pages 65 and 66 of the Court Book under the heading ‘CLAIMS AND EVIDENCE’ the Tribunal said:
On 23 July 2002 the Tribunal wrote to [the applicant] advising that it had considered all the papers relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited her to give oral evidence and present arguments at a hearing on 16 August 2002. She was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. No response was received. A Tribunal officer rang [the applicant’s] adviser on 6 August 2002, and again on 12 August 2002, in order to find out if [the applicant] wished to attend the hearing. On the first occasion the adviser stated that he had been unable to contact [the applicant]. On the second occasion the adviser stated that [the applicant] did not wish to attend the hearing. He agreed to send confirmation of this in writing as soon as possible. However no written confirmation was received. [The applicant] has not provided the Tribunal with a telephone number on which she can be reached directly. She did not provide a residential address and only provided, as her mailing address, that of her adviser. He had no recent residential address for her. Departmental records indicate that she has not left Australia.
[The applicant] did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable her to appear before it.
The Tribunal gave the following as its findings and reasons (Court Book page 67):
[the applicant] is a national of the People’s Republic of China.
However, she has provided very little information about herself. She has not appeared before the Tribunal to answer questions which might enable me to be satisfied that she is familiar with Falun Gong practice, she has provided a very brief and vague account of her Falun Gong activities in the PRC and in Australia, and she has provided no documentary evidence in support of her claim to have been a longstanding practitioner of Falun Gong.
Further, she does not claim that she was ever identified as a Falun Gong practitioner in the PRC, and I infer from the fact that she was in employment up to the time of her departure from the PRC, and did not leave the PRC for over five weeks after being granted the Australian visa, that she was not fearful of persecutory treatment in the PRC because of her Falun Gong practice before she left.
Finally, [the applicant] was in Australia for one year before lodging the application for the protection visa, a delay which, without some other explanation, is not consistent with a fear of persecution.
The applicant’s case
The applicant relied on the one ground of review in her amended application. This was that:
The decision of the Second Respondent [the Refugee Review Tribunal] dated 20 August 2002 was made in jurisdictional error in that the decision of the Tribunal to proceed with the hearing of the applicant’s application in the absence of the applicant under s 426A of the Act was manifestly unreasonable.
Mr Seymour for the applicant agreed that in summary the contentions of the applicant were as follows. Viewed objectively the exercise of the discretion under s.426A to make a decision on review without taking any further action to allow the applicant to appear before it was manifestly unreasonable as understood in the Wednesbury sense (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223). Therefore no real and meaningful invitation was issued by the Tribunal under s.425. The failure to comply with s.425 amounted to jurisdictional error as established in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 .
There are five matters on which Mr Seymour relies. First, the applicant gave unchallenged evidence by affidavit at the hearing that she never received any communication from her migration agent about the date of the hearing. Secondly, the Tribunal tried successfully and unsuccessfully to contact the applicant through her agent. Thirdly, the Tribunal expressed views on the information it could have obtained if it had been able to hold a hearing. Fourthly, on the information available to the Tribunal, it had to proceed by way of inference. Fifthly, the decision of the delegate was infected by error. This was further a relevant consideration as to whether the Tribunal should proceed in the absence of the applicant.
Consideration
Section 425 (1) of the Migration Act 1958 (Cth) (the Act) relevantly provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review
The Full Court of the Federal Court has said in SCAR that s.425 of the Act imposes an objective requirement on the Tribunal to provide a real and meaningful invitation.
Section 426A of the Act provides:
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
The applicant says the Tribunal’s exercise of the discretion under s.426A(1) to proceed to a decision without taking any further action to allow the applicant to appear before it and not to rely on s.426A (2) to reschedule the hearing was manifestly unreasonable.
The chronology of relevant events is as follows. On 9 July 2001 a letter was sent to the applicant from the Department of Immigration & Multicultural Affairs putting certain propositions to the applicant and inviting her comment on them (Court Book page 39). The applicant did not respond to this request.
The application to the Tribunal for review filed on 28 September 2001 (Court Book pages 49 to 51) records the name of the applicant, but provides no home address – the relevant box has been left empty – and provides a mailing address which turns out to be the address of the migration agent. No other address information is provided in Section B of the application.
Section C records the name and address of the nominated authorised recipient of correspondence for the applicant as that of Mr Jack Meng, Immigration and Translation Organisation, 716/368 Sussex Street, Sydney. A phone number, a mobile phone number and a fax number are given for Mr Meng.
The instructions in this section provide:
Where do you want us to send correspondence about your application?
You can nominate someone to receive correspondence on your behalf. This person is known as your authorised recipient. If you nominate an authorised recipient, all correspondence will be sent to that person. You can also ask us to send copies to you.
If you do not nominate an authorised recipient, we will send all correspondence about your application to you.
If you wish to nominate an authorised recipient you must fill in the details below.
As I have indicated, Mr Meng was nominated as the authorised recipient although the applicant asked for copies to be sent to her. But, as I have already pointed out, the only other address that she gave to the Tribunal was that of the authorised recipient.
In section D of the application to the Tribunal for review of the decision (Court Book page 51), the applicant was asked her reasons for making this application and her response was: “Please see my file at DIMA”.
This was in full knowledge that her application had already been rejected by the delegate who had set out the reasons for that decision and the assessment of her specific claims in the record dated 30 August 2001. The applicant had been asked to comment on certain adverse findings by the Department in a letter dated 9 July 2001 (Court Book page 39) but did not answer. Nor did the applicant choose after her application was made to provide any further information to the Tribunal.
The Tribunal sent the applicant a letter dated 23 July 2002 inviting the applicant to attend a hearing on Friday 16 August 2002 (Court Book pages 55 and 56). The Tribunal did not receive any response from the applicant. This invitation was sent to the applicant at the address she had given on her application, and also to Mr Meng, her migration adviser, who was also at that same address. The Tribunal filled out a checklist for use when there was no reply to a hearing invitation. It records what attempts had been made by the Tribunal to contact the applicant (Court Book page 57).
There is also a file note from the Tribunal file (Court book page 58) which shows relevantly:
06/08/02 Adv[iser] called to ask whether [the] appli[cant] is coming to the hearing. He said he has been trying to contact the appli[cant] without success but would try again and would let me know COB today …
12/8/02 I called the adv[iser] again and he said that the appli[cant] does not wish to attend the hearing. I asked him to put this in writing and he said he will fax it asap. No Reply checklist completed.
As I have already set out above, at Court Book pages 65 to 66, the Tribunal records in its statement of reasons its attempts to contact the applicant.
The authorities on Wednesbury unreasonableness make it patently clear that it is difficult to satisfy the test. For instance, Weinberg J in Pelekanakis (“A” v Pelekanakis and Phillip Ruddock in his capacity as Minister for Immigration & Multicultural Affairs [1999] FCA 236 at [89]) says the
requirements which must be met to invoke that ground of review [Wednesbury] are, and ought to be, stringent.
But this ‘stringent’ test for unreasonableness is rarely upheld. In other cases, action must be grossly unreasonable or demonstratively absurd. The case must be exceptional. Justice Brennan in Attorney General (NSW) v Quin (1990) 93 ALR 1 said that the Wednesbury ground is extremely confined.
The question here is was the determination to proceed to a decision without taking any further evidence at a hearing so unreasonable that no reasonable authority could have decided to do so? This is the test set out in Wednesbury.
Taking into account the evidence provided by affidavit at the hearing by the applicant, even when examined retrospectively, this case I think fall a long way short of satisfying the Wednesbury test.
I have already recited the relevant circumstances, including those that have been put to me by the applicant’s counsel Mr Seymour. In particular I note that the applicant named Mr Meng as her agent for contact and as, to use the words of the application, her “authorised recipient”. The applicant gave no other address to the Tribunal. From her own evidence at the hearing an inference can be drawn that she made no attempt to contact Mr Meng to ask about the progress of her case.
Her agent told the Tribunal that she did not wish to attend. Section 426A of the Act expressly authorises the Tribunal in these circumstances to make a decision on a review without taking any further action. Importantly, no practical suggestion has been put to me at the hearing of what other actions the Tribunal could have taken.
In my view, a real and meaningful invitation was made under s.425 (see SCAR and NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121. The exercise of the discretion under s.426A(1) was not flawed and s 425 has been complied with.
The one ground that has been pleaded before me must be rejected.
Conclusion
Mr Reilly for the Minister has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed.
I agree.
I am satisfied the Tribunal made no legal error going to jurisdiction in coming to its decision. I find the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The respondent has filed a notice of objection to competency on the basis that the application was lodged with the Court well outside the
28 days allowed for in s.477(1A) of the Act.
In the circumstances, I uphold the objection to competency and I dismiss the application.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 14 April 2005
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