SZFOS v Minister for Immigration
[2006] FMCA 1586
•9 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFOS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1586 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal properly exercised its discretion to proceed with its review pursuant to s.426A of Migration Act 1958 (Cth) – whether Refugee Review Tribunal failed to provide logical or rational foundation for its decision. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2); 424A; 424A(1); 425; 426A; 474; pt.8 div.2 |
| SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 |
| Applicant: | SZFOS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG208 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 9 October 2006 |
| Date of last submission: | 9 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Ms K. McNamara, Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG208 of 2005
| SZFOS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 8 December 2004.
The Tribunal decision affirmed a decision of a delegate of the first respondent (“the Delegate”) dated 28 June 2004 in which the Delegate was not satisfied on the evidence that the applicant met the definition of refugee under the Convention as amended by the Refugees Protocol (“the Convention”). In those circumstances, the Act mandates that a protection visa must be refused on the basis that the applicant is not a person to whom Australia has protection obligations.
The applicant was born on 7 September 1976, and is a citizen of the People's Republic of China (“the PRC”).
The applicant arrived in Australia on 20 June 2004, having legally departed from China on a passport issued in his own name, and a temporary business visa issued on 3 June 2004.
The applicant lodged his application for a protection visa on 24 June 2004. The applicant claims to be a Christian, and claims that he fears persecution by the authorities in the PRC by reason of his Christian religion.
Following the Delegate’s decision of the Minister on 28 June 2004 refusing the applicant a protection visa, the applicant lodged an application for review of that decision with the Tribunal on 3 August 2004. In that application the applicant again claimed to fear persecution in the PRC by reason of his Christian religion, and his participation in the 1989 pro-democratic movement. On 8 December 2004, the Tribunal affirmed the Delegate’s decision to refuse the applicant a protection visa.
The proceeding before this Court
On 24 January 2005, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. At the heart of the applicant's complaints is the Tribunal's decision to proceed with its review without taking any further action to enable the applicant to appear before it.
The applicant confirmed that it was the amended application filed on
5 May 2005 upon which he relied this afternoon in respect of the relief sought by him in that document. The amended application is in the following terms:
“This application is made under section 39B of the Judiciary Act 1903 (and see section 475A of the Migration Act 1958).
The applicant was notified of the decision that is the subject of this application on 14th of January 2005. [RRT File No: N04/49654]
The applicant claims:
1. A writ of certiorari to quash the RRT decision.
2. A writ of mandamus to compel the RRT considers (sic) the application according to law, and cost.
On the following grounds:
That the RRT decision was effected (sic) to take into account a relevant consideratio (sic) nwhen (sic) it assessed weather (sic) the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars:
1. The Tribunal had bias against me and could not consider my application in a fair way, I could find jurisdiction (sic) error with the way the Tribunal considered my application.
2. The Tribunal did not provide me adequate particulars of the independent information,
3. The Tribuanal (sic) did not observe Migration Act 1958 properly to making the decision.
4. The Tribunal misunderstood my claims and made the wrong decision.
5. The Tribunal did not provide a rational or logical foundation for refusing my application for a protection visa
6. I was not given an opportunity to explain my application in details. I was given an extended time for attending the hearing.
7. The Tribunal did not provide me an adequate opportunity to respond the substance of the information.”
Ground 1 is a claim of bias by the Tribunal in failing to consider his application in a fair way. There are no particulars provided of the bias, however, the applicant submitted that the bias existed in the Tribunal's decision to proceed with its review without taking any further step to enable the applicant to appear before it.
On 1 November 2004, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone.
The Tribunal went on to invite the applicant to attend a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The letter identified the date, time, and place of the hearing, and also informed the applicant that the Tribunal would only change the hearing date for good reason, and that, if the applicant thought he may be unable to attend the hearing, he should contact the Tribunal immediately. The letter also informed the applicant that, if he did not attend the hearing and the Tribunal did not postpone the hearing, the Tribunal could make a decision in respect of his application without further notice. The applicant was invited to send to the Tribunal any new documents or written arguments it wished the Tribunal to consider. The letter also asked the applicant to complete a ‘Response to Hearing Invitation’ form indicating whether or not he intended to attend a hearing.
A ‘Response to Hearing Invitation’ form signed by the applicant and dated 7 November 2004 was received by the Tribunal indicating that, indeed, the applicant did wish to attend a hearing.
In its decision, the Tribunal noted that it had written to the applicant on 1 November 2004 in the terms referred to above. The Tribunal also referred to the applicant's response to that invitation, advising the Tribunal that he wished to give oral evidence. The Tribunal then stated that the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. The Tribunal, in purported reliance on s.426A of the Act, proceeded with its review without taking any further action to enable the applicant to appear before it.
Pursuant to s.425 of the Act, the Tribunal must invite an applicant to appear at a hearing, and must do so in compliance with the statutory regime. Part of that regime requires that an invitation to attend a hearing be sent to an applicant at his address identified for service of such documents.
The Tribunal's invitation to attend a hearing was sent to the applicant at both his mailing address and his home address as identified in his application for review. The applicant does not allege that he did not receive the letter, nor does he allege that any such letter was not sent in accordance with the statutory regime.
Section 426A of the Act entitles the Tribunal, having been satisfied that the applicant was invited to attend a hearing in accordance with s.425 of the Act, to exercise its discretion to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The Tribunal decision makes it apparent that it proceeded with its review, having been satisfied that the statutory regime for inviting the applicant to attend a hearing had been met, and pursuant to its power under s.426A of the Act. There is no error in the Tribunal’s exercise of that discretion.
The applicant has stated this afternoon that he was unable to find where to go on the day of the hearing. The first respondent properly submits that there is no evidence before the Court to that effect, and the applicant has not chosen to comply with a direction made on
9 February 2005 to file any further evidence in support of his application.
Were that evidence relevant to the decision, the interests of justice may well have demanded that the applicant be given an opportunity today to give sworn oral evidence, with an opportunity for the first respondent to cross-examine the applicant on any such evidence, or indeed, make any further application to the Court arising out of any possible prejudice the first respondent may have encountered by the applicant's failure to comply with the direction for the provision of evidence.
However, in the circumstances of this case, the evidence foreshadowed by the applicant in his oral submissions this afternoon is not capable of disclosing jurisdictional error on the part of the Tribunal in deciding to proceed with its review without taking any further action to enable the applicant to appear before it. Accordingly, any evidence of the applicant in the nature foreshadowed by him would not assist his application. For those reasons, I did not pursue with the applicant whether he wished to give sworn evidence to that effect.
Apart from the seriousness of the nature of a claim of bias, or apprehended bias, and the failure to particularise any such claim, where the particular identified by the applicant this afternoon is in the terms referred to above, such a ground cannot succeed where the Tribunal has done no more than exercise its discretion according to law. For those reasons, ground 1 is not made out.
Ground 2
relates to a complaint by the applicant that the Tribunal did not provide adequate particulars of independent information.
The applicant made no oral submission this afternoon in support of that allegation. Ground 2 is misconceived as the Tribunal did not refer in its decision to any independent information. For those reasons, ground 2 is not made out.
Ground 3 is a general complaint by the applicant that the Tribunal did not observe the Migration Act1958 (Cth) properly in making its decision. Again, there are no particulars. The applicant this afternoon submitted in support of this ground that he relies on the conduct of the Tribunal in failing to allow him to attend a hearing. If the applicant's ground is confined to that particular, I have already determined above that the Tribunal properly exercised its discretion under s.426A of the Act. There is no allegation by the applicant of the particulars of any breach of s.425 of the Act. Certainly, the invitation identified the correct information and was addressed to the correct address, in accordance with the statutory regime. There is no evidence before me to suggest that such invitation was not posted within 3 days of its date. In the circumstances, no breach by the Tribunal of s.425 of the Act is made out by the applicant. See also above in these Reasons, the considerations of ground 1.
Whilst on the face of the applicant's amended application there is no claim of a breach of s.424A of the Act, the first respondent has purported to deal with the possibility of such contention in her submissions in a fulsome and comprehensive manner in identifying the relevant principles. In particular, the first respondent referred to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 and SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 per Allsop J at [29], where he stated:
“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.”
In the circumstances of this case, it is quite plain that the Tribunal's decision was founded upon the lack of information and detail before it, and therefore any obligation under s.424A(1) of the Act is not enlivened. Accordingly, ground 3 is not made out.
Ground 4 is a complaint by the applicant that the Tribunal misunderstood his claims and made a wrong decision. Again, there are no particulars.
In proceeding with its review, the Tribunal set out in some detail the applicant's claims in his protection visa application, his application for review and his response to the Tribunal's inquiry for further information.
The Tribunal then concluded, having considered that material, that there was insufficient detail of the nature of the applicant's activities, or his understanding of the Christian religion or commitment to tenets of the Christian religion that were capable of satisfying the Tribunal that the applicant was a Christian. The Tribunal also commented on the lack of detail relating to the applicant's claims of having been questioned by police officers arising out of his involvement in the pro-democratic movement.
The Tribunal was unable to be satisfied that, in the circumstances, the applicant met the criteria required by the Act for refugee status.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations because the criteria set out in s.36(2) of the Act were not met.
At the heart of the applicant’s complaint is a disagreement by the applicant with the findings and conclusions of the Tribunal.
Essentially, the ground is seeking impermissible merits review in which the Court cannot engage.
There is nothing in the Tribunal's summary of the applicant's claims that could lead to substantiating a complaint that the Tribunal misunderstood the applicant's claims. In the circumstances, this ground is not made out.
Ground 5 alleges that the Tribunal did not provide a rational or logical foundation for refusing the applicant's application for a protection visa. In NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [3] – [5], the Full Court of the Federal Court stated that, in a situation where an applicant has failed to attend a hearing and the Tribunal has proceeded with its review pursuant to s.426A of the Act and the Tribunal did no more than list a number of significant matters about which it wished to have satisfied itself at a hearing, such decision “was in no way irrational, arbitrary, or capricious” based on the Tribunal's desire for an explanation about those matters.
In the proceeding before this Court, the Tribunal did no more than identify significant matters about which it wanted to have satisfied itself at a hearing. The findings were open to the Tribunal on the material before it and its reasons for failing to be satisfied of the veracity of the applicant’s claims was reasoned and logical.
Accordingly, ground 5 is not made out.
Grounds 6 and 7 are complaints by the applicant that he was not given an opportunity to explain his application in detail; that his review was not adjourned to allow him to attend, and he was thereby not provided an adequate opportunity to respond to the substance of the information.
As is plain by the recitation of the procedural history of this matter, and consistently with the findings I have made above, the applicant was invited to attend a hearing. However, the Tribunal was not obliged to reschedule another hearing when the applicant failed to attend the hearing. Moreover, the Tribunal invited the applicant on three occasions to send to it any further evidence in support of his application. Those three occasions were letters from the Tribunal dated 4 August 2004, 1 October 2004 and 1 November 2004. There was undoubtedly adequate opportunity provided to the applicant by the Tribunal to respond to the Tribunal's particular requests for further information.
On 1 October 2004, the Tribunal wrote to the applicant requesting additional information arising out of his claims. On 27 October 2004, the applicant responded to that request in the following terms:
“27 October 2004
[the Applicant]
File number: N04/49654
RRT
I refer to the letter from you dated 01/10/2004
1. I was not given a (sic) opportunity to explain my application
2. I am a Christian
3. I was questioned for many times as I participated in public speeches and meeting to fight for freedom of religion in 2003 and 2004
4. I suffered mental torment
5. The reasons I gave for seeing a business visa to come to Australia is for visiting
6. I was involved with activities to strive for freedom and democracy and to commemorate the “89 Democratic Movement” in 1989 and the following years on the date of the event
If you need any further information, please do not hesitate to contact me.
Yours sincerely,
[The Applicant]”
The applicant chose to answer in the brief form referred to above in his response dated 27 October 2004, and did not attend a hearing to further explain his claims, despite having been invited to do so in accordance with the statutory regime of the Act.
The findings and conclusions of the Tribunal were open to it on the material and information before it, and the decision is otherwise not affected by jurisdictional error.
In the circumstances, the Tribunal's decision is a privative clause decision, and pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The applicant's proceeding before this Court is dismissed.
RECORDED : NOT TRANSCRIBED
ORDERS DELIVERED
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 26 October 2006
0
3
2