SZFPR v Minister for Immigration
[2007] FMCA 1770
•3 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFPR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1770 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – discretion not to allow extension of time to respond to s.424A(1) notice did not miscarry – bias and lack of good faith not proved – Tribunal did not err by not inviting the applicant to a Tribunal hearing pursuant to s.425 when the applicant had failed to provide comments in response to a s.424A(1) notice. |
| Migration Act 1958, ss.424A, 424B, 424C, 425, 441A, 441C, 474 Migration Regulations 1994, reg. 4.35B |
| Plaintiff S157 of 2002 v The Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 NAWR v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1520 |
| Applicant: | SZFPR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1492 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 October 2007 |
| Date of Last Submission: | 3 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2007 |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1492 of 2007
| SZFPR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of the People’s Republic of China where, he claims, he was a Falun Gong practitioner. He alleges that while in China he practised Falun Gong and that this subsequently led to him being detained, tortured and forced to write a testimony expressing regret over joining Falun Gong. The applicant left China for Australia where, he alleges, he has continued to practise Falun Gong in his home.
The applicant claims to fear persecution in China because of his practice of Falun Gong.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 1 July 2004. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 25 November 2004 which was quashed by order of this Court dated 15 August 2006 (Court Book (“CB”) page 103).
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 to 7 of the Tribunal’s decision (Court Book (“CB”) pages 122 to 125). Relevantly, they are in summary:
Statement accompanying protection visa application
a)in his statement accompanying his protection visa application the applicant claimed that he had practised Falun Gong for five years having been introduced to it by some of his friends. The applicant practised Falun Gong secretly because in China it is an illegal practice. In his statement quoted at CB 123 the applicant said this:
One day, I found a note on my door, warning me that we were discovered and asked us not to practise Falun Gong any more. Before I could notify others, seven of our members came to my house. I told them that we had to move and change our addresses. The police came before I could explain to the members. We were brought to the police station and we had to write a testimony that we regretted joining Falun Gong before we were released. We gave them the statement against our will and guaranteed to them that we would stop practising Falun Gong;
b)the next day feeling remorseful for what he had done the applicant went to the police station asking for his “testimony”. They would not give it back to him and said that if he did not give up his practise of Falun Gong they would put him in gaol;
Evidence given at the hearing
c)at the hearing before the Tribunal as originally constituted, on 22 November 2004, the applicant said that in November 1994 he began his own chemical factory of which he was the sole owner but in 2000 because of persecution it was taken away from him;
d)as to the applicant's Falun Gong practice the applicant said to the Tribunal:
i)when he was travelling around China on business he met people involved in Falun Gong. He was given two books and from these he started to do the exercises which were illustrated in the books;
ii)he started this in 1997 and continued to do so until the time of that first Tribunal hearing;
iii)sometimes in the morning he would do his exercises in public and people would ask him about the exercises. He said that he printed more copies of the book and gave these copies to people who enquired about the exercises that he was doing. The applicant also stated that he spoke to people at his workplace about the exercises;
e)in relation to the persecution which the applicant claims he suffered the applicant told the Tribunal that:
i)in 1997 he was detained because he was thought to be a leader because he had handed out books to people and told people about the exercises. The applicant stated that he was detained for some two weeks and his family paid money for his release. Notwithstanding this experience the applicant said that he continued to do his exercises and in 2001 the factory was sealed by the government and taken away from him. The resulting financial problems led his wife to divorce him and his father to die of shock;
ii)the applicant further stated to the Tribunal that in 2001 he had been arrested for a period of six to seven months during which time he was tortured; and
f)in relation to his activities in Australia the applicant said that he had no contact whatsoever with Falun Dafa here in Australia although he continued to do exercises in Australia. He does these at home after work.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it the Tribunal found that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal's decision was based on the following findings and reasons:
a)the Tribunal found that the applicant was not arrested and detained in 1997, noting that although the applicant was quite explicit that he had been detained in 1997 because of his involvement as a Falun Gong leader, independent evidence indicated that the arrest of Falun Gong practitioners did not commence until 1999;
b)the Tribunal found that the applicant's claim to have been divorced was a fabrication designed to strengthen his claims for a protection visa, noting that in his protection visa application forms and in his earlier application for a business visa to come to Australia the applicant had given his marital status as “married” and he did not mention the 2001 divorce until he was before the Tribunal at its hearing in November 2004;
c)the Tribunal did not accept that the applicant was detained in 2001 for a period of six to seven months, noting that the applicant had failed to mention his detention in his original statement of claims and that in his protection visa application form he said that he had been continuously employed between 1989 and 2004;
d)the Tribunal did not accept that the applicant operated his own chemical business from 1994 which was taken from him in 2000 because of his involvement with Falun Gong, noting that when he applied for a business visa to travel to Australia in early 2004 the applicant stated that he had been employed as a business manager of a hardware factory since May 1993; and
e)in a further finding on credibility the Tribunal stated that having listened to the tape recording of the 22 November 2004 hearing it found the applicant's evidence to be unconvincing and found that he was not a credible witness.
Concluding, the Tribunal said this:
Having found that the applicant was not a Falun Gong practitioner in China, and is not one now, the Tribunal finds that the applicant would not practise Falun Gong if he were to return to China in the reasonably foreseeable future. So there is no reason to believe that he would be adversely regarded by the PRC authorities were he to return to China in the reasonable foreseeable future. (CB 133).
Proceedings in this Court
The grounds for the application to this Court can be paraphrased as follows:
a)the Tribunal erred by not exercising its discretion to allow the applicant more time to respond to the s.424A notice which the Tribunal sent to him; and
b)the Tribunal was in breach of s.425 of the Act by not affording the applicant an opportunity to appear before it to give evidence and present arguments.
In his application the applicant makes reference to provisions in the Act which relate to the Migration Review Tribunal. I will deal with the applicant's application as if he had correctly made reference to the equivalent provisions which relate to the Refugee Review Tribunal.
In dealing with the matters raised by the application it is first worth making some preliminary comments as to the processes adopted by the Tribunal under the Act.
By a letter dated 14 February 2007 the Tribunal sent to the applicant a notice pursuant to s.424A(1) of the Act which invited him to make comment on certain information which was set out in that letter. Section 424A(2)(a) requires that such a notice is to be provided to an applicant by one of the methods set out in s.441A. Section 441A(4) provides that such a notice may be sent by pre-paid post to the last address for service provided by an applicant to the Tribunal. The letter which is reproduced at CB 109 to 111 was sent to the address notified to the Tribunal by the applicant on 18 October 2006 (CB 105).
Annexure A to the affidavit of Saloni Kantaria sworn 26 September 2007 discloses that the s.424A letter was despatched by post to the applicant on 14 February 2007. Section 441C(4)(a) deems the letter to have been received seven working days after the date that it bears. In the circumstances of this case that date was 23 February 2007.
Section 424B provides that an applicant must provide a response within the prescribed period and that that period is to be specified in the s.424A(1) notice. Regulation 4.35B prescribes the period in question to be 14 days after the day on which the s.441A(1) notice is received. Here the receipt is taken to have occurred on 23 February 2007 so the prescribed period expired on 9 March 2007 which was the date set out in the s.424A(1) notice.
Having set out that background I now turn to the particular grounds raised by the applicant.
The Tribunal erred by not exercising its discretion to allow the applicant more time to respond to the s.424A notice
The first ground turns on the refusal of the applicant's request for additional time within which to respond to the s.424A(1) notice. Although the Tribunal could have extended time under s.424B(4) which by reg 4.35B would have given the applicant a further period of approximately 28 days within which to respond, that is not what happened here.
Here the Tribunal refused the application for an extension although it did grant an indulgence to the applicant and permitted him to provide any further information which he wished the Tribunal to have up until the time when it handed down its decision. The applicant says that the Tribunal should have granted him more time and that its failure to do so was affected by prejudice.
Dealing firstly with the question of prejudice, if what the applicant is alleging is that the Tribunal was biased, he is required to demonstrate that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, any or any proper evaluation of the materials before it which were relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.
If alternatively the applicant is alleging a lack of good faith on the part of the Tribunal the relevant propositions are set out in the decision of the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 755-756. One of the propositions set out by their Honours in SBBS’s case is that the circumstances in which the Court will find an administrative decision-maker has not acted in good faith are rare and extreme, especially so where all the applicant relies on is the written reasons for the decision under review (at [44]).
In this case the Tribunal's decision record does not disclose any closed mind on its part nor lack of good faith. Indeed the indulgence given to the applicant to provide information to the Tribunal up until the point where it delivered its decision indicates a lack of the closed mind and a lack of the prejudice the applicant asserts.
As to the asserted miscarriage of discretion it should first be observed that the Tribunal was under no obligation to extend time and so there is a logical difficulty in finding jurisdictional error in the failure to make a decision which the Tribunal was not obliged to consider making.
However, accepting that the exercise of the discretion whether or not to allow an extension of time might have consequences which led to the ultimate decision-making process being affected by jurisdictional error it is a question which has to be considered.
In this regard in its letter of 9 March 2007 reproduced at CB 113, the Tribunal explained its reasons for not granting the extension of time. It committed no error by taking into account that the applicant had had ample time to seek an extension of time but had only made that request on the very day when his response was required. This decision was also taken in circumstances where the s.424A letter had been posted more than three weeks earlier. Consequently, although a miscarriage of the discretion may have invalidated subsequent steps which were taken by the Tribunal I find that the Tribunal did not err in the exercise of its discretion not to extend time for the applicant to reply to the s.424A notice.
Breach of s.425
In his second ground the applicant says that he was denied the opportunity to appear before the Tribunal as he did not respond to the s.424A notice within the time limits set out in that notice or indeed at all.
The Tribunal was entitled to proceed to a decision without inviting him to a hearing. This is made clear by s.425 which provides as follows:
(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.
(2) Subsection (1) does not apply if:
(a) …
(b) …
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
In relation to the operation of s.425, s.424C(2) is relevant and it provides:
If the applicant:
(a) is invited under section 424A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.
This is a case where the applicant was invited under s.424A to comment on information but did not give the comments before the time for giving them had passed, therefore the provisions of s.425(2)(c) and s.425(3) were activated with the consequence that the Tribunal was not required to invite the applicant to a hearing.
In reaching this conclusion I have also had reference to the decision of Sackville J in NAWR v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1520.
Conclusion
For these reasons jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 30 October 2007
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