SZFNX v Minister for Immigration
[2007] FMCA 47
•29 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFNX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 47 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.91X, 425, 425A , 426A, 441A, 441C |
| NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 VNAA & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 136 FCR 407 Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 SZGQL v Minister for Immigration & Multicultural Affairs & Ors [2006] FCA 1420 |
| Applicant: | SZFNX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 182 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 20 October 2006 |
| Date of Last Submission: | 20 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 182 OF 2005
| SZFNX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By his further amended application, filed by leave in Court on
20 October 2006, the applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) which was handed down on
22 December 2004 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) dated 28 September 2004 refusing the applicant’s application for a protection visa.
The sole ground of the application in these proceedings is that the applicant was deprived of the opportunity of attending a hearing of the Tribunal as a result of the “wrongful conduct” of his migration agent. It is asserted that the applicant was not notified by his agent that the Tribunal had invited the applicant to attend a hearing which took place on 2 December 2004.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background Facts
The applicant arrived in Australia on 30 August 2004. On
24 September 2004 he lodged an application for a protection visa. This application was rejected by a delegate of the Minister and notified to the applicant by way of a letter dated 29 September 2004 (Relevant Documents bundle (“RD”) page 029). An application for review of the delegate’s decision was received by the Tribunal on 1 November 2004. (RD 037).
The applicant claims to have been persecuted and to fear future persecution in China because he is a Falun Gong practitioner.
The application for the protection visa was accompanied by a written submission in which the applicant stated that he was a Falun Gong practitioner and one of the leaders of the Falun Gong organisation in Hedong District, Tianjin. The applicant asserted he had been detained by the police for almost one month in a Tianjin detention centre, tortured by the police and “forced to declare not to practice [sic] Falungong”. The applicant stated that after he was released he was informed that his “company were noticed by the authority to reduce my salary. I suffered spiritually and economically”. (RD 025). The applicant said that he did not know what would happen to him in the future and he decided to leave China. (RD 026).
In his application for a protection visa and in his application to the Tribunal the applicant discloses his address in Australia as 160/422 Pitt Street, Sydney (RD 004, 013, 038). The delegate’s letter dated
29 September 2004 advising refusal of the application for a protection visa was addressed to the applicant at that address. (RD 029).
By its letter dated 2 November 2004 and addressed to the applicant at 160/422 Pitt Street, Sydney, the Tribunal acknowledged receipt of the applicant’s application (RD 042) and on 8 November 2004 it again wrote to the applicant at that address inviting him to come to the Tribunal hearing on 2 December 2004. (RD 044).
The applicant did not attend the hearing and at RD 053 the Tribunal set out the following chronology:
On 8 November 2004 the Tribunal wrote to the Applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the Applicant to give oral evidence and present arguments at a hearing on 2 December 2004. The Applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The letter was sent by registered mail to the Applicant at the residential address listed in his application for review. No authorised recipient or separate mailing address are listed in the application. No response was received and the letter was not returned unclaimed. On 24 November 2004 the Tribunal checked its file and the Departmental file for a more recent address and telephone number for the Applicant. No telephone number is listed in the application for review. On the same day the Tribunal checked the Departmental movements database to confirm that the Applicant is still in Australia.
The Applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.
Expressly acting pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant in the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal:
a)accepted that the applicant is a citizen of the People’s Republic of China who was born in Tianjin in 1953 (RD 054);
b)noted the applicant claims to fear that he would be persecuted by the Chinese authorities because he is a Falun Gong practitioner (RD 054);
c)stated that the applicant provided no substantiation from any source inside China of his claim to have been a Falun Gong practitioner and a leader in Tianjin nor did he claim to have had any contact with the faith since his arrival in Australia, providing no evidence from any Falun Gong source in Australia of such contact (RD 055); and
d)described the applicant’s account of his claim to Falun Gong involvement in China as vague and lacking in detail (RD 055).
In the Tribunal’s view:
The applicant’s vague and unsubstantiated claims … do not provide a sufficient basis for the Tribunal to be satisfied that he has ever been a Falun Gong practitioner or leader or has ever had any significant involvement with the Falun Gong faith.
(RD 055).The Tribunal was further of the view that:
The applicant’s claims of harm are, like his claims to Falun Gong involvement, unsubstantiated and vague. He gives no indication as to when he was detained or what, specifically, he was accused of doing. (RD 056).
The Tribunal summarised its views as follows:
The Applicant’s claim that he will face persecution if he returns to China rests on his claim to have been a Falun Gong practitioner and leader and he does not claim to have suffered any harm for any other Convention-related reason. His claims concerning his Falun Gong involvement, unsubstantiated and lacking in detail on important points as they are, do not provide sufficient grounds for the Tribunal to have confidence in the claimed basis for his professed fear of persecution. Nor, given the unsubstantiated and vague nature of his claims to have been harmed because of his Falun Gong involvement, is the Tribunal satisfied that he has ever suffered harm in China for this reason.
In the light of all the evidence available to it, the Tribunal is not satisfied that the Applicant faces a real chance of harm amounting to persecution from the Chinese authorities because of any involvement with the Falun Gong faith, either now or in the reasonably foreseeable future should he return to China, and is not satisfied that he has a well founded fear of persecution for this or any other Convention-related reason. The Tribunal is not satisfied that the Applicant is a refugee. (RD 056).
By the Tribunal’s letter dated 22 December 2004 (RD 049) its decision was sent to the applicant at the 160/422 Pitt Street, Sydney address.
Proceedings in this Court
The application initiating these proceedings was filed on 20 January 2005.
The grounds of the further amended application dated 7 June 2006 and filed in Court on 20 October 2006 are that the applicant was deprived of the opportunity to attend the Tribunal hearing on 2 December 2004 because of the “wrongful conduct” of his migration agent. The applicant claims that this led to a denial of procedural fairness and jurisdictional error.
The applicant’s affidavit evidence was that shortly after arriving in Sydney he was introduced to a person called Songtao Lu who said that he would help the applicant apply for a refugee visa. The applicant deposes that he paid firstly $400 and then $350 to Mr Lu.
In paragraph 6 of his affidavit sworn 3 May 2006 the applicant acknowledged his signature at RD 13 and 23, those pages being the applicant’s application for a protection visa for himself (Form 866C), and the application for a protection visa for the applicant’s wife and daughter (Form 866B).
In oral evidence and in response to questions put to him by Mr Smith for the Minister the applicant denied that the signature appearing at RD 13 was his signature.
In his affidavit the applicant deposes to not recognising the 160/422 Pitt Street, Sydney address, stating that upon arrival in Sydney he spent a few weeks living in the city in Mr Lu’s apartment following which he moved to Auburn and then in about June 2005 to Cabramatta where he continues to live.
The applicant further states that his statement or written submission forming part of his visa application (RD 025) is not correct where it says he had been detained by the Police in Tianjin, tortured and forced to declare not to practise Falun Gong. He says he never gave this information to Mr Lu and did not know that this information was in the refugee visa application.
The applicant further deposes that although in his application for review by the Tribunal, his residential address is stated to be 160/422 Pitt Street, Sydney, when this form was signed on 1 November 2004, this was not his address.
The applicant says in paragraph 12 of his affidavit:
I am now aware that in December 2004 there was a hearing for my matter in the Refugee Review Tribunal (“the Tribunal”). At the time, I was unaware there was a hearing. I never received a letter from the Tribunal telling me about the hearing. Mr Lu never told me about the hearing. If I had been aware of the hearing, I would have attended. I would have told the Tribunal that I was a Falun Gong practitioner in China and I feared persecution if I am forced to return to China.
It is apparent from the sequence of events that letters sent by the department and the Tribunal to the 160/422 Pitt Street, Sydney address came to the attention of the applicant. No fault on the part of the Tribunal is alleged by the applicant.
The applicant’s claim is that he was unaware of the Tribunal hearing date of 2 December 2004 because his agent did not tell him about it. Although the further amended application describes this conduct as “wrongful”, the written submissions filed by counsel for the applicant sought to separate the issue of “wrongful” conduct into fraudulent and non-fraudulent conduct. While some authorities have suggested that such a dichotomy might have been a useful one in these proceedings, recent decisions binding on me lead to a different conclusion.
The relevant provisions of the Act are:
a)s.425(1):
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.
b)s.425A(1):
If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
c)s.441A(4):
Another method [of the Tribunal giving a document to a person] consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c)to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.
d)s.441C(4):
If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia–7 working days (in the place of that address) after the date of the document; or
(b)in any other case–21 days after the date of the document.
e)and s.426A(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.
In a case where fraudulent conduct was not alleged against an agent who declined an invitation to attend a hearing, apparently without instructions to do so, NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184, at [16] Tamberlin, Sackville and Hely JJ said in a joint judgment:
The RRT’s invitation was sent by pre-paid post to the applicant at the address for service nominated by him and a copy was sent by the same means to his residential address. The RRT therefore complied with both s 441A(c)(i) and (ii) [sic], notwithstanding (as we are prepared to assume) the applicant was not himself told of the hearing and did not receive the letter sent to his home address. Accordingly, there is no basis for concluding that the primary judge was in error in holding the asserted fact that the applicant was unaware of the RRT’s hearing was of no legal relevance.
Dealing with similar facts, in SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 Bennett J said at [25]:
The Tribunal’s notice to the applicant was sent in accordance with statutory requirements. Although the applicant asserts that he did not receive the notice, the Tribunal complied with its obligations to give the applicant notice of the hearing. I am satisfied that, within the framework of the Act, there was no failure to give the applicant the opportunity to appear before the Tribunal and the Tribunal was entitled to make a decision on the application for review in the absence of the applicant.
In VNAA & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 136 FCR 407 at 415 [15], Sundberg and Hely JJ expressed agreement with what the judge at first instance had said, namely:
If the applicants’ argument were right, the Tribunal would be required in each case to be affirmatively satisfied that the invitation under s.425 had actually come to the notice of the applicant. To proceed in the absence of such affirmative satisfaction would, on the applicants’ argument, convict the Tribunal of jurisdictional error. That argument flies in the face of the statutory scheme discernable in ss.441A and 441C and must, I consider, be rejected.
On the “fraudulent agent issue” counsel for the applicant Mr Zipser properly took the Court to the recent decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 which has the effect of disposing of the argument that fraud of the applicant’s agent in causing the applicant not to attend the Tribunal hearing would affect the validity of the Tribunal’s decision. As Allsop J said at [139]:
There was an invitation to attend a hearing. That invitation was declined. That decision to decline the invitation was influenced by the dishonesty and fraudulent purpose of the agent of the applicants. I do not see the basis for a conclusion that there was any denial of procedural fairness or that those circumstances denied the Tribunal the authority to decide the review given the terms of ss.425, 426A and 422B. I do not think it is an accurate conclusion to say that the legislative scheme was corrupted by fraud or that a hearing was denied by fraud. That is not to cavil with the findings of the Federal Magistrate as to the dishonesty and fraud. The scheme of the Act was to give an invitation to attend a hearing. It was given. It was understood by the respondents to have been given. A conscious choice was made by the respondents not to go to the hearing, which was influenced by the fraud of the agent. The complaints of the respondents are not about the process, but about their erstwhile agent who acted as he did. I do not consider that either the decision or the statutory process was corrupted by fraud.
In that case Graham J concluded that compliance by the Tribunal with the requirements of ss.425, 425A and 426 entitled the Tribunal pursuant to s.426A(1) to make a decision on the review without taking any further action to enable or allow the applicant to appear before it (at [237]). His Honour said at [238]:
The sufficiency of an invitation can be addressed the moment the invitation has been given. Viewed in that way, any fraudulent advice that may have been given to the first-named First Respondent by her de-registered migration agent who no longer held a practising certificate as a solicitor, could not bear upon the question of whether or not an invitation had been duly given to the first-named First Respondent to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
This decision has subsequently been followed and applied by Besanko J in SZGQL v Minister for Immigration & Multicultural Affairs & Ors [2006] FCA 1420 where his Honour noted at [35] that in SZFDE, Allsop and Graham JJ concluded that the Act’s statutory provisions:
… allow no room for a claim that there was a breach of the rules of procedural fairness based on the erroneous advice of an applicant’s agent …
In my view the same conclusion applies to an agent’s wrongful conduct, whether fraudulent or not, in failing to inform an applicant of an impending Tribunal hearing of which notification had been given. Consequently, in these proceedings, the outcome of the application for review of the Tribunal’s decision does not turn on whether or not the agent’s conduct in not informing the applicant of the 2 December 2004 Tribunal hearing was fraudulent.
Therefore, the Tribunal was entitled under the Act to proceed to a determination notwithstanding that the applicant may not have been informed by his agent of the Tribunal’s proposed hearing, with the result that the Tribunal’s decision is not affected by jurisdictional error on this account.
Conclusion
In these proceedings, it was claimed that the Tribunal’s decision was affected with jurisdictional error because of a denial of procedural fairness flowing from the applicant allegedly being deprived of his opportunity to attend a hearing before the Tribunal because of his agent’s conduct.
The claim of jurisdictional error has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Angela Chong
Date: 29 January 2007
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