SZFTM v Minister for Immigration
[2007] FMCA 85
•2 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFTM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 85 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s conduct suggested it had not completed its review process – whether Refugee Review Tribunal erred in failing to invite the applicant to attend a further hearing. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(1)(b); 91R(2); 91S; 422; 422B; 424A(1); 424A(3)(b); 425; 474; pt.8 div.2 |
| SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 SZDUN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 963 Abebe v The Commonwealth; Re Minister for Immigration and Multicultural Affairs; ex [1999] HCA 14 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 221 CLR 1 |
| Applicant: | SZFTM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG483 of 2005 |
| Judgment of: | Emmett FM |
| Hearing dates: | 7 November 2006 & 6 December 2006 |
| Date of last submission: | 6 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 February 2007 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the Respondent: | Mr J. Potts |
| Solicitors for the Respondent: | Mr A. Cox, Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG483 of 2005
| SZFTM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (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 17 January 2005.
The applicant was born on 29 March 1976 and claims to be from the People’s Republic of China (“the PRC”) and of Chinese ethnicity (“the Applicant”).
The Applicant has a wife and daughter who remain in the PRC.
The Applicant arrived in Australia on 22 January 2004, having legally departed from Beijing on a passport issued in his own name and a class 676 visa issued on 8 January 2004.
On 2 February 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the Chinese government because he is a Falun Gong practitioner. The Applicant claimed that he was arrested, interrogated and beaten by police and made to pay a fine in order to be released.
On 9 February 2004, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 15 March 2004, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant also claimed that he was forced to write ‘self-criticism’ and was fired from work because of his involvement in Falun Gong. On
17 January 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 February 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
The Tribunal set out comprehensively the claims made by the Applicant, both in writing and orally. The Tribunal also set out with specificity the independent information to which it had regard. The Tribunal accepted that the Applicant was a Falun Gong practitioner in the PRC and that he was briefly detained in 1999. The Tribunal accepted that the Applicant had signed an undertaking not to practice Falun Gong and was fined.
The Tribunal found that the Applicant suffered no punishment for attending only one class of denouncement of Falun Gong. The Tribunal noted that the Applicant did not allege physical ill treatment during his contact with the Public Security Bureau in 1999.
The Tribunal noted that the allegation made by the Applicant in his statement in support of his protection visa application, which alleged that he was beaten by the police, was in fact intended to be an allegation that his father was beaten by police.
The Tribunal noted that the Applicant was not subjected to any physical harm by any person because of the perception that he was a Falun Gong practitioner.
The Tribunal found that the Applicant was not detained or seriously harmed or harassed during his last four years in the PRC and that in fact he was able to obtain a passport in his own name and leave and re-enter the PRC without coming into conflict with the authorities.
The Tribunal did accept that the Applicant had been subject to some discriminatory treatment over the years because he had been a Falun Gong practitioner because of the difficulty for the Applicant in obtaining permanent employment. However, the Tribunal was not satisfied that such conduct amounted to serious harm as required by s.91R(1)(b) of the Act. The Tribunal had particular regard to the instances of serious harm set out in s.91R(2) and to the Explanatory Memorandum in respect of s.91R of the Act and High Court authority on the point.
The Tribunal found that the Applicant was not regarded as a significant Falun Gong practitioner by authorities and that he had not suffered serious harm.
The Tribunal also considered whether the Applicant had modified his conduct in relation to his Falun Gong practice and, if so, whether any such modification was influenced by a threat of harm. The Tribunal found that the Applicant had not modified his conduct in relation to Falun Gong, nor that he claimed to have changed his Falun Gong practice because of the threat of harm.
The Tribunal concluded that it was not satisfied that the Applicant had been subjected to treatment amounting to persecution before he left the PRC and that he did not claim to have participated in any activities in Australia which may negatively impact on the attitude of the Chinese authorities towards him were he to return to the PRC. The Tribunal concluded that the Applicant did not have a well founded fear of Convention related persecution in the PRC and accordingly affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter.
On 23 February 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. On 23 May 2005, the Applicant filed an amended application in this Court and confirmed that the amended application was the document upon which he relied. The amended application contains matters of submission as well is possible grounds of review. I have endeavoured in these Reasons to identify those matters that may give rise to an error capable of review. The structure of the amended application is most unclear and unhelpful.
Grounds 1, 2, 3, 3.1, 3.2, 3.3, 4.1, 4.3, 4.6 and 4.7 do no more than recite background facts and for that reason, those grounds are not capable of disclosing any error capable of review.
Ground 4.2 of the Applicant’s amended application states that the Tribunal did not follow the relevant procedures specified in the Act.
There are no particulars attached to that allegation.
The Tribunal invited the Applicant to attend a hearing in accordance with its obligations under s.425 of the Act.
The Tribunal identified with particularity the claims made by the Applicant in its decision.
The Tribunal had regard to independent country information.
The Tribunal, having considered the evidence and material before it, proceeded to make findings and draw conclusions from those findings based on the evidence and material before it and for which it gave reasons.
Accordingly there is no error identified in this ground.
To the extent that there was any consideration by the Tribunal of the Applicant’s material or statement furnished in support of his protection visa application, that information was given by the Applicant to the Tribunal. The Applicant stated in his application to the Tribunal, “Please see my file in DIMIA”. In the circumstances, that information is incorporated by reference and by reason of s.424A(3)(b) and the obligations of s.424A(1) in respect of that material are not enlivened (SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 per Rares J at [24]; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [10]-[13] per Merkel J).
Ground[FMCoA1] 4.4 alleges that the Tribunal ignored parts of the Applicant’s claims made in the statement attached to his application and therefore ignored relevant material. Again, no particulars are furnished. It is not apparent from the Tribunal’s decision that there was any failure to understand comprehensively the claims made by the Applicant before it, to consider them and make relevant determinations.
Accordingly, there is no error in respect of this ground.
Ground 4.5 again appears to be no more than a disagreement with the finding of the Tribunal that the discriminatory treatment suffered by the Applicant did not amount to Convention related persecution. Whether any particular harm meets the description of serious harm is a question of fact and degree for the Tribunal (Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at 20-21; SZDUN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 963 at [21]). The findings it made were open to it on the material before it and for which it gave reasons. This ground otherwise seeks merits review, which this Court cannot undertake (Abebe v The Commonwealth; Re Minister for Immigration and Multicultural Affairs; ex [1999] HCA 14 at [195]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).
Ground 4.8 made the following allegations:
“The Tribunal Member who has made a decision in regard to my application for review is diffeent (sic) from the Tribunal Member who heard my case at the specified hearing time. It is unfair for one person to hear the case and for another person to decide who has not heard the case.
The RRT affirmed the decision made by the Department of Immigration and Multicultural and Indigenous Affairs and handed down the decision which I received in due course. The applicant submits that the RRT’s findings were not appropriate in the circumstances and should be reviewed by a Tribunal member different from the first one. The application for review to the Federal Court should be allowed. Each party pays its own cost.”
The Applicant complained to this Court about the fact that the Tribunal Member who wrote the decision was not the Tribunal Member before whom he appeared at a hearing. However, that fact by itself is not sufficient to establish any jurisdictional error on the part of the Tribunal. Section 422[FMCoA2] of the Act specifically allows the Tribunal to appoint a different Member during the process of review.
Accordingly, this complaint is not made out.
Effect of Tribunal letter
However, in the course of considering this complaint, the Court raised a concern about the effect of a letter by the Tribunal dated 21 July 2004 addressed to the Applicant expressed in the following terms:
“Dear [Applicant]
Your Application for Review
The Member reviewing your case has asked me to advise you as follows.
The Member previously reviewing your case is no longer available and your case has now been constituted to another Tribunal Member, Ms Phillipa McIntosh. Please note that it is not clear yet whether a further hearing will be required. However, the Tribunal will inform you of the progress of your application in due course.
Yours sincerely
[signed]”
The material before this Court disclosed that, on 22 November 2004, a file note was made by a person at the Tribunal in the following terms:
“Applicant called through TIS to find out when the decision is going to be made. Told him when the decision is made, the Tribunal will send him a letter informing him about it. LFlores.”
The First Respondent submitted that, unless the conduct of the Tribunal, in writing the letter dated 21 July 2004, a) created an expectation and b) did so in a manner that was so egregious, unreasonable or reckless as to amount to conduct not in accordance with the principles of good faith, it could not amount to a jurisdictional error.
On 18 January 2005, the Tribunal sent a letter to the Applicant informing him that the Tribunal had considered all the material relating to his case and had made its decision. The letter invited the Applicant to attend the handing down of the decision on 8 February 2005, but informed the Applicant that he was not required to attend. The letter informed the Applicant that the officer handing down the decision could not discuss the decision or reasons with him and that an interpreter would not be provided by the Tribunal although he was welcome to bring a person to assist.
The First Respondent correctly submitted that in the event that any conduct in the letter could be characterised as no more than a denial of procedural fairness, then s.422B of the Act was an exhaustive statement about the rules of natural justice, which confined to the statutory obligations of the Tribunal in the conduct of its review, and that the Tribunal had plainly complied with its statutory obligations. Counsel for the First Respondent also correctly pointed out that the Tribunal was indeed entitled to reconstitute the Tribunal with another Tribunal Member.
Counsel for the First Respondent also submitted that, even if there had been some expectation of a further hearing, the Tribunal Member in its decision largely accepted all the Applicant’s claims.
The affirming by the Tribunal of the decision under review turned on the Tribunal’s finding that the conduct upon which the Applicant relied as persecutory did not amount to serious harm for the purposes of s.91R(1)(b).
Counsel for the First Respondent also submitted that, in fact, the Applicant, after having received the letter of 18 January 2005 and before the handing down of the decision, took no steps to complain about a lack of further hearing or a lack of any further opportunity to provide any further material. Further, the Applicant has not framed a complaint along any such lines.
Counsel for the First Respondent referred the Court to SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 (“SBBS”), particularly [43], where the Full Court of the Federal Court stated that an allegation of a lack of bona fides must not be lightly made and must be clearly alleged and proved. Such an allegation involves personal fault on the part of the decision maker (SBBS at [43]). The Full Court stated that the circumstances in which a Court will find an administrative decision maker had not acted in good faith are rare and extreme (SBBS at [44]).
However, the Full Court in SBBS, at [56], also suggested that recklessness may be sufficient to demonstrate a lack of good faith. That passage makes clear that an error of fact and law on the part of the Tribunal in its conduct is not sufficient to found an allegation of bad faith. Counsel for the First Respondent submitted that, in the proceeding before this Court, a large step was required from a finding of denial of procedural fairness that may be suggested by the terms of the letter where an expectation for a further hearing may possibly have been created, to a personal criticism of the Tribunal, which would be implicit in a finding of bad faith.
The hearing was adjourned to enable both parties to file further written submissions on the issue.
The adjourned hearing
Mr Zipser, of counsel, prepared submissions on behalf of the Applicant and also made oral submissions at the adjourned hearing.
Counsel for the Applicant conceded that there was no issue of bad faith on the part of the Tribunal.
Counsel for the Applicant confined his submission to a contention of denial of procedural fairness to the Applicant by not inviting him to attend a further hearing, having sent the letter dated 21 July 2004. Counsel for the Applicant referred the Court to Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 221 CLR 1 (“NAFF”).
The First Respondent correctly submitted in answer to this contention that NAFF was decided prior to the introduction of s.422B of the Act.
In NAFF, the High Court of Australia found that another Refugee Review Tribunal had failed to complete the review process by not hearing further from an applicant, in circumstances, where that tribunal had informed the applicant at the hearing that it would write to the applicant about inconsistencies in his evidence and provide time to the applicant to respond. That tribunal did not write to the applicant and proceeded to publish its decision, making adverse credit findings and without seeking or receiving any further material from the applicant. The High Court found that the conduct of that tribunal suggested that that tribunal did not regard its review process as complete.
In the proceeding before this Court, the Tribunal did not state to the Applicant that he would be invited to attend a further hearing. Nor did the Applicant make such an allegation.
A fair reading of the Tribunal’s letter dated 21 July 2004 does not suggest it had formed a view that the review process was incomplete and required any further step.
The letter of 21 July 2004 did no more than inform the Applicant that it was possible the Tribunal may form a view that a further hearing would be required.
The letter concluded by stating that the Tribunal would inform the Applicant of “the progress of your application in due course.”
Upon inquiry by the Applicant to the Tribunal on 22 November 2004, the Applicant was informed of the progress of his application. The Tribunal’s file note of that inquiry indicates that the Applicant was told that, when its decision was made, the Tribunal would send a letter informing the Applicant about the decision.
There is no evidence or contention from the Applicant of any complaint made by him upon receiving the Tribunal’s decision, or at any other time, of a failure by the Tribunal to invite him to attend a further hearing.
Moreover, there is no specific statutory duty on the part of the Tribunal to inform the Applicant that the Tribunal did not require a further hearing, in circumstances where the Tribunal did not conduct itself in a way to suggest that the review process was incomplete, as occurred in NAFF. Nor is any such duty alleged.
The tribunal’s conduct in NAFF was found to be consistent with the formation of a firm impression that that tribunal did not regard the review process as complete (NAFF at 11). No such impression is conveyed by the Tribunal’s conduct in writing the letter dated 21 July 2004.
Whilst it may be an unfortunate looseness of language, used by the author of the letter of 21 July 2004, in the circumstances, the terms of the letter of 21 July 2004, do not disclose an error on the part of the Tribunal going to jurisdiction.
In reaching that conclusion, I have particular regard to the fact that:
i)no such complaint has been made before this Court;
ii)no complaint was ever received from the Applicant to the Tribunal about any expectation the Applicant had for a further hearing;
iii)the Tribunal’s letter dated 21 July 2004 does not state clearly that a further hearing would be required;
iv)no response to that letter was received by the Tribunal from the Applicant;
v)the Applicant took no step, after having received notification on 18 January 2005 of the handing down of the decision on 8 February 2005, about the conduct of the Tribunal in taking that step without reference to him;
vi)the Applicant has provided no further evidence, despite having been given an opportunity, of any complaint made by him to the Tribunal at any time about the Tribunal’s failure to invite him to attend another hearing.
Conclusion
The decision of the Tribunal is otherwise not affected by jurisdictional error. Accordingly, the Tribunal’s decision is a privative clause decision. In the circumstances, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 31 January 2007
[FMCoA1]SYL – do you want to make it ‘ground’ or ‘paragraph’?
[FMCoA2]SYL – I inserted the section number for you.
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