SZFQW v Minister for Immigration

[2006] FMCA 878

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFQW v MINISTER FOR IMMIGRATION [2006] FMCA 878

MIGRATION – Application to review decision of Refugee Review Tribunal – whether failure to comply with s.424A of the Migration Act or with other statutory provisions.

Migration Act 1958 (Cth), ss.422B, 424A, 425, 426, 426A, 441

Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27
Minister forImmigration & Multicultural & IndigenousAffairsv Lay Lat [2006] FCAFC 61
NADK of 2002 v Minister for Immigration & MulticulturalAffairs [2002] FCAFC 184
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SZBCS v Ministerfor Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457
SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 6
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134

Applicant: SZFQW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG323 of 2005

Judgment of: Barnes FM

Hearing date: 13 June 2006

Delivered at: Sydney

Delivered on: 13 June 2006

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr J Mitchell

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed.

2. That the applicant pay the costs of the respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG323 of 2005

SZFQW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 6 January 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant claimed to be a citizen of the People's Republic of China.  He arrived in Australia in June 2004 and applied for a protection visa.  He claimed to have a well-founded fear of persecution because of his practise of Falun Gong.  His application was refused and he sought review by the Tribunal.   

2. In its reasons for decision the Tribunal recorded that it invited the applicant to attend a hearing; that no response was received and that the letter of invitation of 12 October 2004 was not returned unclaimed.  According to the Tribunal, on 8 December 2004 a change of address form was received by the Tribunal, changing the applicant's mailing address, but not his home address and not providing other contact information.  The applicant did not attend the hearing that had been scheduled for 9 December 2004.   

3. The Tribunal was satisfied that the applicant had been properly notified. It noted that the change of address form related only to the mailing address and that, in any event, the invitation of 12 October 2004 was sent long before the change of mailing address was notified. In those circumstances the Tribunal decided, pursuant to s.426A of the Migration Act 1958 (Cth) (the Act), to make a decision on the review without taking further action to enable the applicant to appear before it.

4. The Tribunal summarised the applicant's claims in his protection visa application in relation to his claimed practice of Falun Gong from 1997.  He had claimed that he had been dismissed from his job and forced to attend re-education courses; that his family was mistreated and that he left home.  He borrowed money and managed to get a passport by paying bribes.  He claimed to fear that he would be gaoled if he returned to China.  These claims were repeated in summary form in a statement attached to the Refugee Review Tribunal application. 

5. The Tribunal accepted that the applicant was a national of the People's Republic of China but considered that he had provided scant details of his claims.  It elaborated on its concerns about particular aspects of the claims, noting that the applicant had claimed to have become involved in Falun Gong in 1997, but had not provided details of the nature and extent of his alleged Falun Gong activities in China.  He claimed he was dismissed from his job and forced to attend re-education camp, but had not indicated when or under what circumstances this occurred.  Nor had he provided any details of his claim that his family was mistreated because he practised Falun Gong.  He had provided no information at all concerning any Falun Gong activities in Australia. 

6. The Tribunal concluded that, given the lack of detail contained in the applicant's claims, it could not be satisfied that he was a Falun Gong practitioner in China. Hence it could not be satisfied that he lost his job, was sent to a re-education camp, or was otherwise of any adverse interest to the Chinese authorities, or to anyone else for this reason.  In addition, it could not be satisfied that the applicant was a Falun Gong practitioner in Australia.  As it could not be satisfied that the applicant had practised Falun Gong in China or Australia, it could not be satisfied that he would practise Falun Gong if he returned to China. 

7. The Tribunal found that it followed that it could not be satisfied that there was a real chance that the applicant would face persecution for this reason if he returned to China.  It observed that the applicant had not claimed to fear persecution for any other reason and none was suggested on the evidence before the Tribunal.  It concluded that in the circumstances it was not satisfied that the applicant had a well founded fear of persecution for a Convention reason. 

8. The applicant sought review of the Tribunal decision by application filed in this Court on 7 February 2005.  He relies on an amended application filed on 6 February 2006.  He did not file written submissions and today had nothing to add to what appears in his amended application.  However, in addition to the ground raised in the amended application, counsel for the respondent addressed other aspects of the Tribunal procedures and decision. 

9. The ground raised in the amended application is that there was a failure to comply with s.424A of the Migration Act, on the basis that the only information before the Tribunal was that contained in the first respondent's file and that given to the Tribunal by the applicant. The Tribunal was, according to the amended application, required to provide particulars of the information that was the reason, or part of the reason for affirming the decision in writing and explain its relevance. It was submitted that, consistent with what had been held in Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27, this obligation extended to the information given by the applicant to the first respondent as part of the visa application.

10. It was claimed in the amended application that the Tribunal based its findings on the information, or lack of information, contained in the applicant's application for a visa and hence suggested that it was required by s.424A to give particulars of that information and explain its relevance to the applicant and give him an opportunity to comment on it.

11. However, when one considers the Tribunal reasons for decision, it is apparent that the reason for the Tribunal's findings, including its ultimate finding of a lack of satisfaction that the applicant had a well-founded fear of persecution (and hence was not a person to whom Australia had protection obligations) it was based on the inadequacy of the claims and material submitted by the applicant.  The Tribunal referred to the scant details of the applicant's claims and gave examples of such inadequacy.

12. This is not a case in which the Tribunal purported to rely on any inconsistencies between what appeared in the protection visa application and in the applicant's claims as made to the Tribunal.  Rather the decision turned on the inadequacy of the material provided.  In such circumstances, as in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, it cannot be said that there is information which forms the reason or part of the reason for affirming the decision under review subject to the operation of the obligation in s.424A(1).

13. As Allsop J stated in SZEZI at [29] and as applies in this case:

    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. 

14. As Hely J pointed out in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [15] and [16], the Tribunal, in its invitation to the hearing, made it clear that it was unable to make a decision in the applicant's favour on the basis of the information before it. The Full Court of Federal Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 that when the applicant failed to accept such an opportunity to elaborate on information at the scheduled hearing, the ‘inevitable consequence’ was the rejection of his application. 

15. I note that what was said in SZDXC in relation to what was ‘integral’ to the Tribunal’s reasoning process must now be read in light of the decision of the Full Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 6 in relation to the concept of what is the reason or part of the reason for affirming the decision under review (but see SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238). In this case it was the inadequacy of information alone which provided the basis for the Tribunal decision. In those circumstances what is said in SZEEU is not such as to change the approach adopted in SZEZI which remains good authority in circumstances such as those presently before the Court. No failure to comply with s.424A(1) of the Migration Act is established on the material before the Court.

16. While the claimed breach of s.424A was the only ground raised in the amended application, as indicated, counsel for the first respondent addressed the Court and the Court has also considered whether there was any failure by the Tribunal to comply with any of the other requirements of the Migration Act.

17. That issue arises because the applicant did not attend the Tribunal hearing.  It is necessary to have regard to the events that occurred prior to and leading up to the scheduled hearing.  In his application for review signed 25 August 2004 which, in subsequent correspondence, the Tribunal refers to receiving on 27 August 2004, the applicant provided a home address, a street address in the suburb of Campsie.  He described his mailing address as the same address and provided no other contact details.  He did not nominate an authorised recipient. 

18. The Court Book includes two copies of a letter from the Tribunal to the applicant dated 27 August 2004 acknowledging receipt of the application.  One of those letters is stamped with a received stamp in the name of the Tribunal.  The date is illegible.  Also contained in the Court Book is a copy of an envelope addressed to the applicant at the address provided in the review application but marked return to sender and received by the Tribunal on 6 October 2004. 

19. As the date on the received stamp on the copy of the letter in the Court Book is indistinct, one cannot draw conclusions about precisely what it was that was returned to sender on 6 October 2004, except that it is clear that it cannot be the letter of 12 October 2004, which is the invitation to attend the Tribunal hearing.  Moreover, even assuming that the only correspondence that the Tribunal had sent to the applicant was a letter which had been returned to sender, no other contact details were provided in the review application or otherwise, prior to

    
    

    12 October 2004.  Indeed the same address was provided in the protection visa application. 

20. In other words, the Campsie address was the only contact information that the Tribunal had at the date that it invited the applicant to attend a Tribunal hearing.  That letter advised the applicant 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.  It invited him to attend a hearing on 9 December 2004 at a time and place specified and advised that if he did not attend and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice. 

21. Pursuant to the provisions of the Migration Act, one of the methods by which a Tribunal can give a document to a person is to dispatch by prepaid post within s.441A(4) to the last address for service provided by the recipient in connection with the review or the last residential or business address provided to the Tribunal by the recipient in connection with the review. If those requirements are satisfied, then under s.441C(4) the person is taken to have received the documents 7 working days after the date of the document.

22. I note that the applicant made no submissions as to whether or not he had received the invitation or, indeed, as to whether or not there was any non-compliance with the provisions of the Migration Act. The only complicating factor, which I have considered, is the fact that on

    
    

    7 December 2004 the Tribunal received a change of address notification from the applicant dated 4 December 2004 which provided a new mailing address but provided no alteration of the a home address.  In other words, the applicant’s home address remained the same but an additional address, a mailing address, was provided to the Tribunal 2 days before the scheduled hearing date.  This document was referred to in the Tribunal reasons for decision (although the Tribunal referred to receiving the form on 8 December while it is stamped

    
    

    7 December 2004).  As the Tribunal noted, the invitation of 12 October 2004 was sent long before any change of mailing address was notified. 

23. The change of address notification does not mean that the Tribunal failed to give the applicant notice of the hearing by its earlier letter of 12 October 2004. 

24. In relation to the “return to sender” envelope which appears to relate to correspondence which predated the invitation, I note that in SZBCS v Ministerfor Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 at 32, Bennett J took the approach that where an invitation had been returned to sender so that the Tribunal was on notice that the invitation was not in fact received by an applicant, that did not mean that the applicant was not invited in the sense that the Tribunal had complied with its obligations under the Migration Act. Similarly, in this instance the return to sender envelope (which in fact predates an invitation sent at a time when there were no other contact details) is not such as to indicate that there was a failure to comply with the requirements of the Migration Act by the sending of the letter of

    
    

    12 October 2004 to the only address notified at that time. 

25. It is also relevant that in circumstances where an applicant has complained of not being informed by a migration agent of the time of a hearing, nonetheless where an invitation has been sent by pre-paid post to the nominated address for service, the Tribunal has been found to have complied with s.441A, notwithstanding that the applicant may not himself be aware of the hearing and notwithstanding that the applicant may not in fact have actually received the letter sent to the correct address.  See NADK of 2002 v Minister for Immigration & MulticulturalAffairs [2002] FCAFC 184 at [16]. Also see VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134. This reflects the fact that the notification I issue is a deemed notification. I also note that this is an application to which s.422B of the Migration Act applies. No argument about lack of procedural fairness has in any event, been raised and see Minister forImmigration & Multicultural & IndigenousAffairsv Lay Lat [2006] FCAFC 61.

26. In all the circumstances then I am not satisfied that there has been any failure to comply with the provisions of the Migration Act such that it can be said that the Tribunal failed to carry out its obligations to invite the applicant to appear at a hearing pursuant to ss.425 and 425A of the Migration Act. Hence the Tribunal was empowered under s.426A to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

27. No jurisdictional error is established on the part of the Tribunal.    Hence the application must be dismissed.  I will hear submissions in relation to costs.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  There is nothing in the material before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent and the amount sought is appropriate.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  28 June 2006