SZFMO v Minister for Immigration
[2006] FMCA 959
•24 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFMO v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 959 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65, 91X, 424A, 425A, 426A, 483A |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 NBAJ v Minister for Immigration [2005] FMCA 1668 Re B41 of 2003 v Refugee Review Tribunal [2004] FCA 30 SAAP v Minister for Immigration [2005] HCA 24 SJSB v Minister for Immigration [2004] FCAFC 255 SZBZG v Minister for Immigration [2006] FMCA 62 SZCGM v Minister for Immigration [2005] FCA 1196 SZEEU v Minister for Immigration [2006] FCAFC 2 SZEZI v Minister for Immigration [2005] FCA 1195 |
| Applicant: | SZFMO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG124 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 28 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Advocate for the Respondents: | Ms K Rose |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent should be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 17 January 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG124 of 2005
| SZFMO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 17 January 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 29 November 2004 and handed down on 16 December 2004, affirming a decision of a delegate of the first respondent made on 17 June 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZFMO”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Dr Irene O’Connell, reference N04/49599, provides the following background information. The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 9 June 2004. On 15 June 2004, he lodged an application for a Protection (Class XA) visa with the Department under the Act. On 17 June 2004, a delegate of the Minister refused to grant a protection visa and on 22 July 2004, the applicant applied to the Tribunal for review of the decision.(Court Book (“CB” 58)
At the time of the Tribunal hearing, the applicant was a 47 year old married man from Tianjin province, China. He stated that he had no religion and was a businessman. He listed eleven years of education. From 1977 to 1992, he worked as a driver and then became a businessman. The applicant attached a statement to his protection visa application setting out his interest in Falun Gong and the circumstances which led to him beginning the practice in 1998. The ban on Falun Gong by the Chinese government on 20 July 1999 resulted in the applicant’s arrest when he was sentenced to one year in a labour camp. Upon his release, the applicant bribed a government official to obtain a passport, which enabled him to depart for Australia.(CB 61)
Tribunal’s findings and reasons
The Tribunal affirmed the decision under review, refusing to grant the applicant a protection visa. It accepted that the applicant was a national of China and assessed his claims against information about that country. The Tribunal made its decision pursuant to s.426A of the Act, without an appearance by the applicant at the Tribunal hearing, concluding that due to the vague and unreliable evidence, it was not satisfied that the applicant had a genuine fear of persecution. The Tribunal was not satisfied that the applicant was a Falun Gong practitioner, or that he had been detained for one year in 1999, because he was an adherent of the philosophy and had been arrested for participating in Falun Gong activities. The Tribunal stated that it had “a number of issues upon which it requires a good deal more detailed evidence”. Based on the limited information provided by the applicant, the Tribunal was not satisfied that the applicant would face a real chance of serious harm if he returned to China.
Application for review of the tribunal’s decision
On 17 January 2005, the applicant filed an application for review under s.39B of the Judiciary Act. An application was made at the commencement of this hearing to file an amended application. As there was no objection from the respondents, leave was granted. The amended application contained two grounds:
1.Part of the reason the Tribunal affirmed the decision under review was because of information in the applicant’s protection visa application. The Tribunal failed to comply with s424A of the Migration Act in relation to this information.
2.The applicant was dissuaded from attending the hearing before the Tribunal as a result of negligent advice from his migration agent. In the circumstances, there was a denial of procedural fairness and jurisdictional error.
Evidence
Mr Zipser sought leave to file an affidavit of the applicant, sworn
9 May 2006, which addresses the reason why the applicant did not attend the Tribunal hearing on 26 November 2004. There was no objection by the respondents’ solicitors and leave was granted for the affidavit to be filed in Court. That affidavit contains the following information:
1.I am the applicant in these proceedings.
2.I do not speak, understand or read English.
3.On 9 June 2004 I arrived in Australia. In China I was a Falun Gong practitioner. I feared that if I returned to China I would be persecuted. For this reason, I wanted to remain in Australia. One the same day I spoke with a friend who introduced me to the migration agent Ying Ying Bao. On the same day I phoned Ying Ying Bao. She asked me to come to her office. I went to her office. We had a conversation to the following effect:
Me: I am a Falun Gong practitioner. I want to apply for a protection visa.
Bao: I can help you with your application. I will charge $1,200.
I paid Ying Ying Bao $1,200. Ying Ying Bao gave me a receipt. I no longer have a copy of the receipt.
4.Ying Ying Bao then asked me to sign some documents. I signed the documents.
5.I have been shown a book with a green cover with the title “Court Book”. At page 9 there is a signature in Chinese characters. This is my signature. At page 11 there is a signature in Chinese characters. This is my signature. At page 24 there is a signature in Chinese characters. This is my signature.
6.I told Ying Ying Bao about what happened to me in China. At pages 26 and 27 of the Court Book there are two pages in a language that I do not understand. I have been told that one of the paragraphs says:
“I was sentenced to one year at the notorious Tianjin Prison Labour Camp, where I suffered from ill treatment alongside many other practitioners. The labour camp often puts practitioners into solitary confinement. To make things worse, they handcuff us in various torture positions. Sometimes I was hanged by the handcuffs”.
These events happened to me in China.
7.At page 11 of the Court Book there is the address 70 Park Street, Campsie NSW 2194. This was my address when I arrived in Australia. I lived at this address until about December 2004.
8.At page 45 there is a signature in Mandarin script. This is my signature. I remember signing this document. Ying Ying Bao phoned me and told me to come into her office. She then asked me to sign the document, which I did. Ying Ying Bao told me that my application had been refused by the Department and this document was an application to the Refugee Review Tribunal (“the Tribunal”).
9.A few months later I received a phone call on my mobile phone. The caller spoke English. I gave the phone to my boss who was with me and who speaks English. My boss spoke with the caller. My boss then told me that the caller was from the Tribunal and gave me the date and time of a hearing for my matter in the Tribunal.
10.I then phoned Ying Ying Bao. I told Ying Ying Bao that a person from the Tribunal had phoned me and given me information about a hearing for my matter in the Tribunal. The conversation continued:
Bao: You do not need to go to the hearing. It is useless for you to attend the hearing.
Me: Why should I not attend the hearing?
Bao: You should listen to me. It is useless for you to attend the hearing.
For this reason, I did not attend the hearing. If Ying Ying Bao had told me that it was important that I attend the hearing, I would have attended.
Reasons
The applicant was represented at the hearing by Mr Zipser of counsel, who advised the Court that he appeared on a direct access basis. Mr Zipser submits that in respect of the second ground, being the failure to attend the hearing issue, the applicant claims that he was dissuaded from attending the Tribunal hearing as a result of advice from his migration agent. There is authority binding on this Court which states that when an applicant is deprived of an opportunity to attend before the Tribunal hearing through the fault of his or her advisor (where the fault is not fraud), such a situation does not constitute a denial of procedural fairness or jurisdictional error: NBAJ v Minister for Immigration [2005] FMCA 1668 per Barnes FM; Re B41 of 2003 v Refugee Review Tribunal [2004] FCA 30 at [23] – [25] per Dowsett J. The applicant does not allege fraud in the present case. Mr Zipser indicated to the Court that he had advised the applicant that he could appeal this point to a higher Court and seek a reversal of the authority binding on this Court, which was ultimately a matter for the applicant.
I accept the submissions made by Mr Zipser in respect of the applicant non-attendance at the Tribunal hearing as a result of his migration agent’s advice. I also accept the authorities cited by Mr Zipser. I am further guided by SZBZG v Minister for Immigration [2006] FMCA 62 per Driver FM where His Honour considered an application which involved similar facts and the same migration agent. However this case is free of an allegation of fraud as was considered in NBAJ v Minister for Immigration by Her Honour Barnes FM. I agree with Mr Zipser’s submission regarding authorities relevant to the applicant’s claim of procedural unfairness by reason of fault on the part of his migration agent. A migration agent advising an applicant not to attend a Tribunal hearing does not constitute jurisdictional error on the part of the Tribunal. The authorities of NBAJ v Minister for Immigration and SZBZG v Minister for Immigration are binding on this Court.
In respect of the first ground, which is the s.424A issue, Mr Zipser submits that the applicant set out his claims in his protection visa application.(CB 26-27) The Tribunal decision under the heading ‘Claims and Evidence’, recorded that the applicant was invited, but did not attend, the Tribunal hearing.(CB 60) The Tribunal then recorded the applicant’s claims set out in his protection visa application.(CB 61) Under ‘Findings and Reasons’, the Tribunal first noted that the applicant must satisfy the Tribunal that all of the statutory elements were made out.(CB 61) The Tribunal identified a number of issues which required more detailed evidence before it could be satisfied that the applicant is in genuine fear of persecution and that there is a real chance that he will be persecuted.(CB 62) The Tribunal then found (CB 62.3):
On the very limited, vague and unreliable evidence available, the Tribunal cannot be satisfied about the Applicant’s claim that he was a Falun Gong practitioner and that he was detained for one year in 1999. Nor can the Tribunal be satisfied on the very limited information provided by the Applicant what harm he claims to fear on his return to China.
Mr Zipser submits his intention to rely upon s.424A of the Act in putting the applicant’s case in respect of the first ground. He submits that s.424A(1) provides:
(1) …the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;
Mr Zipser argues that the Tribunal, in making its decision, relied on information that the applicant put in his protection visa application which was information that was not provided to the Tribunal in the Tribunal application. The leading authority on what constitutes such information is SZEEU v Minister for Immigration [2006] FCAFC 2 at [18], [205] - [207]. His Honour Moore J states at [18]:
A convenient starting point in considering the arguments in relation to the flight information is the judgment of the Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”). In that matter, Finn and Stone JJ helpfully digested the cases concerning what constitutes “information” for present purposes. Their Honours said (at [24]):
…there is now a considerable body of case law concerned with the compass of the term “information” in its s 424A(1) setting. The following propositions emerge from it:
(i) …
(ii) …
(iii) the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations…nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps…(authorities omitted)
His Honour Allsop J goes on to say in SZEEU v Minister for Immigration at [205] - [207]:
205.Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event…
206.Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations…
207.The word ‘information’ has been said not to encompass or extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc… (authorities omitted)
Mr Zipser submits the next step in his argument is whether, and if so in what circumstances, an applicant can rely on s.424A of the Act when he/she does not appear at the Tribunal hearing.
Mr Zipser argues that SZCGM v Minister for Immigration [2005] FCA 1196 at [14], [16] – [20] per Allsop J (“SZGCM”) deals with this issue:
14.…In NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119, I set out the essentials of the position faced by an applicant who chooses not to attend a hearing in circumstances where the Tribunal has indicated that it is unable to make a decision favourable to the applicant…
16.The Tribunal was unable to be satisfied of the relevant criterion required by the Migration Act 1955 (Cth) and Regulations – that the applicant had a well-founded fear of persecution for a Convention reason…
17.VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 call for a distinction between the information being the reason or a part of the reason, and evaluation or cognitive process being the reason or part of the reason. The distinction can be fine, but on these authorities it is called for by s 424A.
18.…all the Tribunal was expressing was its conclusions as to the vagueness and incoherence of the claims. To that extent these parts of the reasons reveal that this part of the reason for the decision was the cognitive or evaluative process not the information itself.
19.However, the Tribunal then went on to say the following:
The Tribunal notes that the applicant has not claimed to have been involved in anything more serious than verbal abuse with his political opponents. His claims about adverse treatment he has suffered encompass some stones thrown at his shop and an overnight detention. The Tribunal is not of the view that even cumulatively these incidents amount to serious harm that can be called persecution.
20.This involves a factual conclusion that the contents of the information if accepted (which for the purposes of the paragraph they were) did not amount to persecution.
SZCGM then goes on to say that this last finding was not integral to that Tribunal’s conclusion and therefore it did not, in fact, need to be put to the applicant in writing under s.424A.
Mr Zipser indicates that the argument that he seeks to draw from SZCGM to support his contentions is that s.424A can apply even if an applicant does not attend the Tribunal hearing. He also acknowledges that this Court is bound by that decision.
Returning to the Tribunal decision, Mr Zipser refers the Court to the following passage (CB 62.3):
On the very limited, vague and unreliable evidence available, the Tribunal cannot be satisfied about the Applicant’s claim that he was a Falun Gong practitioner and that he was detained for one year in 1999.
Mr Zipser indicates his wish to focus on the word “unreliable”. He submits that if the Tribunal makes a finding as “unreliable”, it is similar to an adverse credibility finding and must be based on some information. In this case, such a finding must be based on information that was contained in the protection visa application. Mr Zipser argues that the Tribunal, in part because of the adverse credibility finding against the applicant, then goes on to reject the applicant’s claim. He submits that it is within this process that s.424A of the Act comes into play and is applicable. This was not complied with.
Mr Zipser further submits that the Tribunal based its decision in part on the element of “unreliablity” in the information provided by the applicant to the Department in his protection visa application. Mr Zipser submits that:
a)This information was information within the meaning of s.424A(1)(a) of the Act. The finding of unreliability is a form of adverse credibility finding, being a positive finding against the applicant based on the claims in his protection visa application.
b)If it is necessary to contend that the distinction between “subjective appraisal, thought processes or determination” and information is wrong, the applicant so contends: SZEEU v Minister for Immigration at [19] and [26]. Mr Zipser acknowledges that this Court is bound by the distinction.
Mr Zipser submits that on this basis, the Tribunal failed to comply with s.424A and fell into jurisdictional error.
I acknowledge Mr Zipser’s concession that the balance of the authorities are against him in respect of the first ground. However, Mr Zipser was endeavouring to establish the applicant’s case in the best possible light open to him as counsel. This is to the effect that the information relied upon by the Tribunal in making its decision was from the applicant’s protection visa application and consequently invokes the operation of s.424A of the Act requiring the Tribunal to provide that material to the applicant.
Ms Rose, appearing for the respondents, submits that the applicant was informed that the Tribunal was unable to make a decision in his favour without taking further evidence. The hearing invitation was a valid invitation pursuant to s.425A of the Act. No further information was provided to the Tribunal by the applicant following the hearing invitation. Nor did the applicant respond to the hearing invitation in any manner. As the Tribunal had complied with its obligations under s.425A, the Tribunal was entitled to proceed in the applicant’s absence. The Tribunal correctly exercised its power under s.426A of the Act, to proceed in making its decision without giving the applicant a further opportunity to appear before it. Ms Rose submits that the Tribunal simply was not satisfied that the applicant met the criteria for the grant of a protection visa. She relies on SJSB v Minister for Immigration [2004] FCAFC 255 at [15] per Ryan, Jacobson and Lander JJ which states that s.65(1) of the Act:
…does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.
Ms Rose submits that the submission by Mr Zipser in respect of the appilcation of s.424A of the Act is incorrect. She submits that the Tribunal decision is very clear. It was clearly based on the lack of information before it: SZEZI v Minister for Immigration [2005] FCA 1195. That decision was handed down on the same day as SZCGM and Ms Rose relies upon SZEZI v Minister for Immigration at [29] – [30]:
29.On one view, it might be said that since the only information that was before the Tribunal about the appellant’s circumstances was information not withdrawn from the operation of s 424A (1) by s 424A (3)(b), it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF I discussed the purpose of s 424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.
30. Thus, in my view, there was no failure to comply with s 424A.
Ms Rose submits that the word “unreliable” as used by the Tribunal, should be read in context of the relevant paragraph.(CB 62.1) The Tribunal was unable to make a decision in the applicant’s favour on the information provided in protection visa application and the application for review. The applicant did not appear before the Tribunal to elaborate upon his claim. SZEZI v Minister for Immigration at [29] - [30] are directly relevant to the Tribunal’s statement. Ms Rose submits that the Tribunal’s use of the word “unreliable” goes to it not being satisfied on the information before it, rather than to an abuse of the information, which would attract the obligations under s.424A of the Act. She submits that the applicant has not established that there was use of any information in the protection visa application that would attract the obligation under s.424A of the Act.
Conclusion
I acknowledge the concessions made by Mr Zipser prior to presenting his argument in respect of the operation of s.424A of the Act, however, I believe that the approach submitted by Ms Rose and the authorities on which she relies are correct and binding on this Court. Consequently, I believe that the application must be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 20 July 2006
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