SZFGD v Minister for Immigration & Anor

[2006] FMCA 99

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFGD v MINISTER FOR IMMIGRATION AND ANOR [2006] FMCA 99

MIGRATION – Refugee – failure to attend hearing – inevitable consequence – impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958, ss.36(2), 65.

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
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: SZFGD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3643 of 2004

Judgment of: Nicholls FM

Hearing date: 31 January 2006

Date of Last Submission: 20 January 2006

Delivered at: Sydney

Delivered on: 31 January 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. Bird

Solicitors for the Respondent: Phillips Fox

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 amount of $3500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3643 of 2004

SZFGD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

1. This is an application filed in this Court on 15 December 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 October 2004 and handed down on
   10 November 2004 to affirm the decision of a delegate of the respondent Minister made on 10 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 3 May 2004. He applied for a protection visa on 2 June 2004 and this was refused on 10 June 2004. He applied to the Tribunal for review of that decision on 15 July 2004.

3. His claims to protection are set out in his application for a protection visa reproduced at Court Book (“CB”) 1 to CB 28, and particularly in an attached statement, reproduced at CB 25 to CB 27. His application for review is copied at 45 to CB 48. Under the heading:

   “Your reasons for making this application”

   The applicant has written:

   “Please see my statement attached.”

   From the Tribunal’s decision record (at CB 66.5) it would appear that this statement contained the same claims as those put before the first respondent’s Department.

4. The applicant’s claims to protection were based on his being an active practitioner of Falun Gong. He claimed that in 1999 due to poor health he left his employment, but that when in March 2001 he started practicing Falun Gong he found new employment. Further, because of his “outstanding behaviour in the organisation” he became one of the “important members” (CB 26.3). He claimed that a work colleague subsequently reported him to the Public Security Bureau (“PSB”) for practicing Falun Gong. When he received word that the police were looking for him he felt compelled to leave town at once. He claimed that he fled to the countryside. On Chinese New Year 2004 he returned home where he was told that the PSB had searched his house, destroyed “many things at his home and had taken away all his relevant Falun Gong documents.” He was also told that various Falun Gong members had been detained, that a group leader had been killed, and that his name had been put on a “black list”. He claimed for these reasons he could no longer stay in China, and left China for Australia to seek protection (CB 26 to CB 27).

5. The applicant lodged his application for review with the Tribunal on
   15 July 2004. On 16 July 2004 the Tribunal wrote to the applicant (to the address provided by the applicant in his application as his mailing address – see CB 45) outlining the process by which the Tribunal would deal with his application. Importantly, the letter advised the applicant of the importance of a hearing before the Tribunal, and the opportunity that the hearing would provide to the applicant to support his application (CB 49).

6. On 13 September 2004 the Tribunal wrote to the applicant again 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 on 29 October 2004 (CB 52 to CB 53). On 1 October 2004 the applicant responded  to the hearing invitation, but stated that he did not want to come to the hearing (CB 54), and consented to the Tribunal making a decision on the review application without taking any further action to allow, or enable the applicant to appear before it. In these circumstances the Tribunal proceeded to make a decision based on the information at that time available to it.

7. The Tribunal’s “Findings and Reasons” are reproduced at CB 66.5 to CB 67.9. Relevantly the Tribunal found that:

   1)The applicant was a citizen of China (CB 67.2).

   2)The applicant had made a “series of general and vague claims” that were “lacking in essential details” (CB 67.3).

   3)The applicant had not provided any important details relating to his Falun Gong practice, and merely stated that he was an “important” practitioner (CB 67.3).

   4)The applicant did not specify when he was reported at work to the PSB, and did not provide any corroborative evidence (CB 67.5).

   5)That the applicant did not attend the hearing, and in the circumstances it was satisfied that the applicant had been given the opportunity to support his application (CB 67.5).

   6)In these circumstances, and in the absence of “further details”, “corroborative evidence” and without having the opportunity to further explore the applicant’s claims at a hearing, the Tribunal could not be satisfied that the applicant was a Falun Gong practitioner, nor that he was an important Falun Gong member (CB 67.6).

   7)Further, in these circumstances the Tribunal could not be satisfied that he was reported to the PSB, had gone into hiding, or that his family had to pay large sums of money to obtain a visa and passport for him (CB 67.8).

   For these reasons the Tribunal could not be satisfied that the applicant had suffered any Refugees Convention related harm or that there was a real chance of harm occurring in the foreseeable future, and could not be satisfied that the applicant had a well founded fear of persecution for a Convention reason (CB 67.9).

8. The applicant’s originating application, filed on 15 December 2004, is generic and does not disclose any real grounds of review except to assert a general “error of law” in the way the law was applied and interpreted by the Tribunal. In any event, the applicant filed an amended application on 4 April 2005. The relevant claims are (Item 1 to 3 do not make assertions about the Tribunal’s decision):

   “4. The Tribunal misconstrued and misapplied the law concerning its determination. I was unable to attend the hearing due to serious illness. This fact was not taken into consideration when the refusal decision was made by the Member.

   5.Many of my important claims were not considered and assessed carefully when the decision was made.

   6.The nature of refugee claims involves risky factors when hard evidence was to be transferred from China to Australia. When hard evidence was not yet available. I should be given some opportunities and benefits of doubts and my written oral claims should be treated as evidence and be given sufficient weight.

   7.I need time to engage a proper solicitor to prepare for the hearing in July 2005.

   8.I have not yet received any free legal advice from the lawyer appointed or recommended by the Court. This is unfair to me. I await an appointment. I am not a legally trained person. I DO need legal advice to prepare legal documents.”

9. In relation to 8 above I note that I have before me the affidavit of John Bird, a solicitor in the employ of the first respondent’s solicitors, affirmed on 22 June 2005. At paragraph 3 of that affidavit Mr. Bird states that in light what is contained in the applicant’s amended application he sent by facsimile to Mr. M. Urquijo, the legal practitioner on the panel of the Court’s Legal Advise Scheme allocated to the applicant’s case, a request for confirmation that legal advice had been given to the applicant pursuant to the Legal Advise Scheme. Annexure “B” to that affidavit is a copy of the email sent by Mr. M. Urquijo in reply confirming that a conference had been held with the applicant on 12 June 2005 (with the assistance of an interpreter), and advice had been given to the applicant on that date. I further note that a confirmation that the advice was given can be found in the “Correspondence” folder in the Court’s file.

10. In relation to the applicant's complaint at 7 above, that he needed time to engage a “proper solicitor” to prepare for the hearing in this Court in July 2005, I note that the hearing which had been scheduled for that time was subsequently rescheduled for 31 January 2006. As a result the applicant has had the opportunity of nearly a further six months to arrange his “proper legal representation”. There was nothing before me today, nor has the applicant been able to put anything to me to indicate any necessity for any further time to be given to the applicant to make any arrangements for legal advice nor, in the circumstances before me does there appear to be any issue that would benefit from the applicant obtaining any further legal advice.

11. At the hearing before me the applicant appeared unrepresented with the assistance of an interpreter in the Mandarin language. Mr. Bird appeared for the respondent Minister. The applicant confirmed at the hearing before me that he was ready to proceed with the final hearing of his matter. He stated further that he put all that he wanted to say in “the document” (the amended application) and had nothing further to say and was waiting for my decision. Nonetheless even in these circumstances, considering I had before me an unrepresented applicant from a non-English speaking background, I took the applicant through relevant parts of his amended application to ascertain if he had anything further specifically to add in relation to the claims enumerated there. In this regard I have included what the applicant stated in relation to each of the separate complaints, where I examine his grounds below.

12. The relevant statutory requirements, s.65 and s.36(2) of the Migration Act 1958 (“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), relevantly that the applicant meets the definition of Refugee contained in Article 1A(2) of the Refugees Convention. On what was put before the Tribunal it could not be satisfied that the applicant met this 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 (“VASF of 2003”)).

13. Further, 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]. In the case before me, 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 or oral submissions in support of the claims at a hearing before the Tribunal. 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."

14. In relation to the applicant’s further specific complaints in his amended application, the applicant now asserts at point 4 that he was unable to attend the hearing with the Tribunal “due to serious illness” and that “this fact was not taken into consideration when the refusal decision was made by the Member”. There is absolutely nothing before me to show that the applicant advised the Tribunal, or that the Tribunal could have otherwise known that the applicant was unable to attend the scheduled hearing due to any illness. There is nothing to show that the applicant advised the Tribunal of this at the relevant time, or that he sought any adjournment because of this illness. At the hearing before me the applicant explained that at the time of the hearing he had a “sore leg”. When I asked whether he had informed the Tribunal of this he stated:

    “No”.

    I further asked the applicant how therefore the Tribunal would have been able to consider the matter if he had failed to inform the Tribunal. He replied that:

    “I am not very thoughtful for this question – for this matter”.

    In addition, there was clear evidence before the Tribunal that the applicant had said he did not want to come to a hearing (CB 54).

15. In these circumstances the Tribunal clearly complied with s.425 of the Act in that it invited the applicant to appear at the hearing. The applicant indicated that he did not want to attend the hearing and clearly consented to the Tribunal deciding the review without his appearing before it. In all these circumstances the Tribunal was then entitled to proceed to determine the application on the material available to it. As I have already set out above the applicant really cannot complain because, amongst other reasons, he did not avail himself of the clear opportunity, once having been put on notice as to the concerns the Tribunal had with what was before it, of attending the Tribunal hearing to give further evidence and argument in support of his claims. As I have set out above and as I explained to the application in all the circumstances the rejection of the application was an inevitable consequence of his not attending the Tribunal hearing.

16. The applicant also complains (at 5 above) that many of his “important claims” were not considered or assessed carefully when the decision was made. When I asked the applicant if he could further explain this at the hearing before me he said:

    “I just want to have a successful in my case”.

    I explained to the applicant the different role of the Court as compared to the Tribunal and that he was not able to have the merits of his case re-examined by the Court. I emphasised to him that for his to be successful we would need to find some “legal mistake” on the part of the Tribunal. In this regard he said:

    “You gave me a clear explanation. I don’t think I can say anything else”.

    It is clear on the material before me that there is nothing to show that the Tribunal failed to consider any of the claims that the applicant put forward. It is, as I have set out above, for the Tribunal to reach the requisite level of satisfaction before a protection visa must be granted. Clearly for reasons that it gave, and based on findings that were open to it on what had been put before it, the Tribunal was unable to reach this requisite level of satisfaction. In the circumstances, the applicant’s claim that his claims were not considered really amounts to a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) (“Wu Shan Liang”).

17. Point 6 of the applicant’s amended application appears to imply that the applicant wished to provide “hard evidence” from China to support his claims, and that this is evidence was not available, presumably at the relevant time when his application was before the Tribunal. There is nothing before me now to show that the applicant advised the Tribunal that he was waiting for any further evidence, or information, to come from China to support his claims. The applicant also complains that in these circumstances he should be given “some opportunity” and “the benefit of the doubt”. I did not understand the applicant to be saying that he should have been given some further opportunity to obtain any evidence. Rather, I understood that he was saying that because it was “risky” to obtain evidence from China and that therefore he had not “yet” obtained it, the Tribunal should have given him the “benefit of the doubt” and placed “sufficient weight” on his claims. In terms of being given “some opportunity” the applicant was given such an opportunity which he chose without explanation to the Tribunal not to take up. That is, his advice that he did not want to attend the hearing before the Tribunal. Further, the applicant's claim that his written and oral (it is not clear what this refers to) claims should be treated as evidence and be given sufficient weight does not in all the circumstances of this case assist the applicant before me now. It is of course a matter for the Tribunal as to the weight that it gives to material before it: (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). It is hard to escape the conclusion that what the applicant is really saying here is that the Tribunal should have believed what he had put to it, without the need to rely on corroborative evidence which was “risky” to “transfer” from China. It is for the Tribunal to reach the requisite level of satisfaction. On what was before it, it was open to the Tribunal to find it could not be so satisfied. For the Court to intervene now would amount to impermissible merits review: (Wu Shan Liang). This complaint also does not succeed.

18. In all, the applicant put forward written claims to the Tribunal. He had clear notice that these claims were not sufficient for the Tribunal to form the requisite level of satisfaction that Australia's protection obligations were engaged. The applicant was on clear notice as to the need for him to attend a hearing before the Tribunal, and without explanation to the Tribunal the applicant chose not to attend. I have considered all the material before me and I cannot see any error in how the Tribunal has approached its task. There is no jurisdictional error evident in the Tribunal's decision. The application is dismissed

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Sybilla Waring-Lambert

Date: 07 February 2006