SZFZZ v Minister for Immigration

[2005] FMCA 1204

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFZZ v MINISTER FOR IMMIGRATION [2005] FMCA 1204

MIGRATION – Application to review decision of Refugee Review Tribunal – applicant did not attend Tribunal hearing – no jurisdictional error.

Migration Act 1958, ss.425, 426A, 441C and 474(1)

B41/2003 v Refugee Review Tribunal [2005] FCAFC 4
SZDDH v Minister for  Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531
NASFvMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162
SZBSZ v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCA 779
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VNAA v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134
Craig v South Australia (1995) 184 CLR 163

Applicant: SZFZZ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 810 of 2005

Judgment of: Barnes FM

Hearing date: 19 August 2005

Delivered at: Sydney

Delivered on: 19 August 2005

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Nil

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the Refugee Review Tribunal be joined as a respondent to these proceedings. 

2. That the application is dismissed. 

3. That the applicant pay the respondent's costs fixed in the amount of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 810 of 2005

SZFZZ

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 5 October 2004, affirming a decision of a delegate of the respondent not to grant the applicant and her husband protection visas.  The applicant is a citizen of the Peoples Republic of China who came to Australia on 14 May 2002.  She was included as a member of the family unit in her husband's application for a protection visa which was lodged with the Department of Immigration and Multicultural and Indigenous Affairs on 11 May 2004.  The applicant made no specific claims of her own to be a refugee but depended entirely upon the Convention-related claims made by her husband.  He is not a party to these judicial review proceedings. 

   
   

   A completed and signed “Form D” application and statutory declaration in the name of the applicant was filed.

2. The applicant's husband claimed that he had many troubles in China because as the owner of a few businesses he did not pay bribes to various government departments.  He also claimed to be a Christian and described restrictions on his ability to practise his religion. 

   
   

   He claimed to be a member of an unregistered church in the People's Republic of China and that on 1 May 2002 the electricity and water were cut off to the church, the police raided the church and several Christians were arrested but released a short time later. 

3. The applicant's husband claimed to fear the problems would worsen and that one day he might get into trouble because of his religious beliefs.  He claimed to fear being arrested if he returned to China as other Christians had been arrested. 

4. The application was refused and the applicant and her husband sought review by the Refugee Review Tribunal.  In the Tribunal review application both applicants were included.  They provided a home address and a mailing address which accords with the address of their nominated authorised recipient.  They authorised the authorised recipient to act on their behalf.  The material before the court contains a completed and signed declaration section with the signature sections for each of the review applicants completed and dated.  It also contains a completed, signed and dated interpreter's declaration. 

5. The review application contains some further elaboration of the claims, including a suggestion by the applicant husband that after May 2002 he had moved from place to place, had applied for a business visa but did not leave China immediately having to prepare for the trip and expecting that he would be monitored and so that he waited until everything looked okay.  He claimed that he did not apply for a protection visa until almost two years after his arrival in Australia because he did not know that there was such a visa in Australia for people like him.  He also claimed that he had now been in Australia for several years and ‘visit church frequently’, and that he guessed that if police knew that he had ‘intimidated contact with foreign church’ they would regard him as ‘a dangerous guy’, would believe that he had some mission for the overseas church and would investigate what he did in Australia. 

6. He claimed to fear that he could be imprisoned and tortured.  He did not state which church he had attended or provide any documentary evidence from a church or otherwise confirming his claims about his activities in Australia. 

7. On 13 August 2004 the Tribunal wrote to the applicants at the mailing and home addresses provided and also to the migration agent, informing them that it had considered the material before it relating to their application but was unable to make a favourable decision on that information alone.  The letter was addressed to the primary applicant who was informed that he must tell all persons named (that including the applicant) about the letter and, if they wished, reply to the Tribunal for them.  The invitation to the hearing was extended to both the applicant and her husband.  The letter also advised that if they did not attend the hearing and the Tribunal did not postpone it, it could make a decision on their case without further notice. 

8. On 6 September 2004 the Tribunal received a response to hearing invitation which indicated that the applicants wished to come to a hearing and required a Mandarin interpreter.  The Tribunal reasons for decision record that on 8 September 2004 the migration agent who had been authorised in the review application to act on their behalf advised the Tribunal by telephone that they did not wish to attend the hearing.  He was asked to provide confirmation of this in writing and provided such confirmation on the same day. 

9. The Tribunal therefore proceeded to make a decision on the review without taking any further action to allow or enable the applicants to appear before it.  The Tribunal noted that only the applicant husband made specific claims under the Refugees Convention.  It found such claims to be vague on important points.  In particular it noted that he had not given any indication as to what form the troubles he claimed he had experienced took or how serious they were. 

10. The Tribunal found there was insufficient information to enable it to establish the relevant facts about the claims about troubles arising out of the husband’s unwillingness to pay bribes.  It noted that he had provided no evidence apart from his own assertions that he was a member of a Christian group before he left China or that he had attended church frequently or at all since his arrival in Australia over two years previously.  He provided no details as to where he was in hiding in the last few months in China or why, if he was sufficiently fearful for his safety to be in hiding, he did not make inquiries for some two years after arriving in Australia as to how to seek asylum.  It had regard to the fact that he had obtained a new passport without difficulty after the claimed raid on the church and left China legally and that neither of these factors appearing to be consistent with the claim that he was at risk at the hands of the Chinese authorities. 

11. The Tribunal found that the applicants had provided insufficient information to enable it to establish the relevant facts and therefore it was not satisfied on the evidence before it that the applicant husband had a well-founded fear of persecution within the meaning of the Convention.  Accordingly it was not satisfied that the applicant husband was a person to whom Australia had protection obligations.  As no specific Convention claims were made by or on behalf of his wife, the fate of her application depended on the outcome of her husband's.  Thus she also failed to satisfy the necessary criteria for a protection visa. 

12. The applicant wife sought review of the Tribunal decision by application filed in this court on 31 May 2005.  She filed an amended application on 14 June 2005 and written submissions on 25 July 2005.  She raised a number of grounds in the amended application and written submissions and then, after oral submissions from her and on behalf of the respondent, raised completely new grounds. 

13. Considering first the grounds raised in the amended application, the first ground is that she is a citizen of China who claims to have a well-founded fear of persecution for reasons of religious beliefs in China.  This is, in essence, a mere restatement of the claims put on behalf of the applicant's husband to the Department and the Tribunal.  It does not indicate any error on the part of the Tribunal.  Insofar as it seeks merits review, merits review is not available in this Court. 

14. The second ground is that the Tribunal erred in making its decision unreasonably and without the applicant attending the hearing.  This ground does not establish jurisdictional error.  It is apparent on the material before the Court that the Tribunal sent an invitation to the applicants on 13 August 2004 to each of the addresses provided in the application for review.  It received a response to hearing invitation which indicated that the applicants wished to attend the hearing.  Subsequently the applicant's migration agent advised that they did not wish to attend.  They did not in fact attend at the time scheduled for the hearing.  Through the migration agent authorised to act on their behalf both review applicants declined the invitation to attend the Tribunal hearing.  The applicant claimed for the first time in her oral submissions in response to the respondent that she did not receive the invitation.  In contrast in her written submissions filed on 25 July 2005 she claimed that she applied for review of the decision of the delegate and that she did not attend the Tribunal hearing because:

    The migration agent did not want me for the hearing days.

15. In other words her complaint in the written submissions was that she did not attend the Tribunal hearing because her migration agent indicated that he did not want her to attend. This reason for non-attendance at a Tribunal hearing does not establish that the Tribunal fell into error in proceeding in the manner in which it did. The Tribunal met its obligations under Division 4 of Part 7 of the Migration Act 1958 to invite the applicants to a hearing.  If the applicant acted on the advice of a migration agent not to attend a hearing, that is a matter for her and does not establish either a breach of procedure or a denial of procedural fairness by the Tribunal. 

16. There are a number of authorities to support the proposition that if an applicant relies on advice received from his or her migration agent not to attend a hearing that does not establish lack of procedural fairness on the part of the Tribunal.  (See in particular B41/2003 v Refugee Review Tribunal [2005] FCAFC 4 upholding the decision of Dowsett J at [2004] FCA 30 in particular at [25]. Also see SZDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531 at [5] and NASFvMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162 at [16]).

17. The claim which the applicant now makes is contrary to what she said in her outline of submissions. It is also contrary to what she claimed in her original application to this Court in which she stated that she was “scared” to appear in the Tribunal to give further oral evidence, having never been to such a place for a legal purpose and being scared that the authorities could find out about this kind of activity. There is no evidence to support her late claim from the bar table that she did not receive the invitation of a hearing. In any event, the Tribunal complied with its obligations to give notice of the hearing, notwithstanding her assertions that she did not receive the notice. Under sections 441C(4) and 441G the applicants were taken to have received the invitation sent to their authorised recipient. No error is established on the part of the Tribunal by this contention. See NASF at [16] and also SZBSZ v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 at [13] and [25]. There was no failure by the Tribunal to give the applicants the opportunity to appear before it. Nor does the claim made in the application for judicial review (that the applicant was scared to attend) establish error on the part of the Tribunal. Consistent with Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 and VNAA v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 at [16] the Tribunal was authorised to proceed to decide the review in the applicant's absence. As Sundberg and Hely JJ stated in VNAA at [16]:

    The scheme of Part 7 of the Act expressly contemplates that in particular circumstances an applicant will not attend a hearing, including cases involving no fault of the applicant.  Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence.  

18. The third ground in the amended application is that the Tribunal failed to deal with the applicant's sur place claim of persecution by reason of her religious beliefs.  No specific Convention claims were in fact made by or on behalf of the applicant before this Court.  No particulars are provided of this claim and there is no evidentiary basis for it in the material before the Court. 

19. To the extent that issue is taken with the applicant’s husband's claim that he attended church in Australia, as indicated above the Tribunal found that he had provided insufficient information to enable it to establish the relevant facts about his claims.  This primary finding that it could not reach the requisite level of satisfaction on the information before it was of sufficient generality that it was unnecessary to proceed to deal with the individual claims in relation to which it had insufficient information in the manner contended by the applicant. 

    
    

    In any event, it is clear that the Tribunal considered the applicant husband's claims about his activities in Australia.  It expressly referred to the absence of any corroborative evidence other than his assertions.  This plainly indicates that the Tribunal was aware of the claim by the applicant's husband but could not be satisfied of anything about the claim because of the lack of evidence provided in support.  No jurisdictional error is established on the grounds in the amended application. 

20. In the applicant's written submissions she contends that it was manifestly unreasonable for the Tribunal to proceed with the hearing of her application in her absence under section 426A of the Migration Act 1958.  However, as indicated above, the Tribunal observed the mandatory procedures.  This argument cannot succeed in the face of Minister for Immigration & Multicultural & Indigenous Affairs v VASF of 2003 and the other authorities discussed above. 

21. The second ground in the amended application is that procedural fairness in section 425 of the Act states the Tribunal must invite the applicant to appear before it to present arguments and give evidence relating to the issue to be determined. However the Tribunal met its obligation by the letter of 13 August 2004. There is nothing in the material before me to suggest that the invitation failed to comply with any of the mandatory requirements under Division 4 of Part 7. In particular, the letter that was sent to the addresses provided in the review application, including the authorised recipient, notified the applicants that if they did not attend and the Tribunal did not postpone the hearing it could make a decision on their case without further notice.

22. The general reference to categories of jurisdictional error in Craig v South Australia (1995) 184 CLR 163 does not establish jurisdictional error. There are no particulars and in the context of the Tribunal's primary finding of a lack of satisfaction as set out above, this claim does not establish jurisdictional error on the facts of this case.

23. The written submission then recites a number of factual matters as background including that the applicant arrived in Australia and made an application for a protection visa; that she made claims apparently in a statement prepared by her migration agent, that the delegate wrote to her notifying her that her application had been refused, that she applied for review of the decision to the Tribunal by application dated 17 June 2004, that the migration agent acted on her behalf, that she never attended the Tribunal because the migration agent did not want her for the hearing days. 

24. As discussed above, to the extent that this involves an attempt to explain the applicant's failure to attend the hearing, it does not establish error on the part of the Tribunal. 

25. In response to the respondent's oral submissions, the applicant raised fresh matters for the first time.  Contrary to what appears in the initial application to the court and her written submissions she claimed that she did not receive the Tribunal invitation.  However, as indicated above, provided the Tribunal complied with its obligations, which it did, the fact that she did not, if that is the case, actually receive the invitation, does not establish jurisdictional error on the part of the Tribunal.  That makes it unnecessary for me to determine whether I am satisfied that the applicant did not in fact receive the invitation from the Tribunal, although I note the inconsistency of this new claim with the application and written submissions and the absence of any evidentiary basis for such claim. 

26. In submissions in reply the applicant then claimed, also for the first time, that the story was made up by the migration agent and was not true; that he did not have her consent when the application was made and did not have her signature.  She claimed that her signature was forged. 

27. Again, this is a late claim and there is no evidence in support of it.  It is contrary to the earlier claims made by the applicant.  Apart from the applicant's late submissions from the bar table there was no explanation for the existence of the completed and signed Form D protection visa application, the completed and signed Refugee Review Tribunal application, or (importantly) the contrary claims that appear in the application for review to this court filed on 31 May 2005 and the absence of mention of any such claim in the written submissions or amended application. 

28. In these circumstances I am not persuaded that the allegation that the applicant now makes without supporting evidence establishes any jurisdictional error on the part of the Tribunal.  Insofar as the applicant now claims that she has a complaint about the conduct of her migration agent, that is a matter she may pursue elsewhere, but jurisdictional error on the part of the Tribunal reviewable by this Court has not been established. 

29. As no jurisdictional error has been established, the Tribunal decision is a privative clause decision under section 474 of the Migration Act 1958 and the application must be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: