SZGGH v Minister for Immigration
[2005] FMCA 1105
•5 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGGH v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1105 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant failing to attend RRT hearing – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.65, 426A, 474, 477 |
| NAST v Minister for Immigration [2004] FCAFC 208 S58 of 2003 v Minister for Immigration [2004] FCAFC 283 SAAP v Minister for Immigration (2005) 215 ALR 162 SJSB v Minister for Immigration [2004] FCAFC 215 |
| Applicant: | SZGGH |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1195 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 5 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms T Quinn Phillips Fox |
ORDERS
The Court directs that the Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1195 of 2005
| SZGGH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was made on 31 May 2002, and handed down on 25 June 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China. He had made claims of persecution based on his practice of Falun Gong. I adopt, by way of background, paragraph 4-18 of the Minister's written submissions:
The applicant is a male citizen of the People's Republic of China born on 3 May 1967.[1] He arrived in Australia on 29 March 2001.[2]
[1] court book, page 2
[2] court book, page 61
The applicant applied for a protection visa on 20 April 2001.[3] His claims were set out in a statement accompanying the application.[4] The application was refused on 31 May 2001.[5]
[3] court book, pages 2-27
[4] court book, pages 25-27
[5] court book, pages 31-40
The applicant applied to the RRT for review of the original decision on 3 July 2001.[6] His further written claims were set out in an additional statement.[7]
[6] court book, pages 42-48
[7] court book, pages 46-47
The RRT wrote to the applicant on 1 May 2002 inviting the applicant to attend a hearing on 29 May 2002. [8] A copy of this letter was also sent by registered post to the applicant's agent.[9]
[8] court book, pages 51-52
[9] court book, page 54
The RRT did not receive a response and the letter was returned unclaimed. [10]
[10] court book, page 53
On 20 May 2002 the RRT spoke with the applicant's advisor who informed that she was not aware of the applicant's whereabouts and she did not know whether he would attend the hearing.[11] The RRT and the Department did not have another more recent address for the applicant and he had not provided a direct contact number. [12]
[11] court book, page 68
[12] court book, page 54
The applicant did not attend the hearing.[13]
[13] court book, page 64
The RRT proceeded to make its decision on 31 May 2002[14], without taking further action to enable the applicant to appear before it, pursuant to section 426A of the Migration Act 1958 (Cth) (“the Migration Act).[15]
[14] court book, page 60
[15] court book, page 64
The RRT sent a letter to the applicant notifying him of the outcome of its decision on 25 June 2002.[16]
[16] court book, pages 57-67
The applicant's claims
The applicant claimed he feared persecution from the authorities in China because he was a Falun Gong (FG) practitioner.
The applicant's claims were contained in the written statements provided to the delegate and the RRT.[17] The claims were summarised by the RRT.[18] He claimed that:
[17] court book, pages 25-27; 46-47
[18] court book, page 64
·He participated in FG marches in April and July (he did not specify which year).
·After FG was banned in China, his employer asked him to give up FG but he refused and was sent to a 'small room' for a month and then fired.
·He disappeared for six months before leaving China for fear that he would be arrested and tortured.
·On 20 May 2001 his wife told him by phone that the PSB were searching for him. On 10 June 2001 a friend warned him that the police had gone to his home with a warrant for his arrest on 27 May 2001.
·On 3 June 2001 the applicant took part in a FG demonstration in Sydney.
·He was put in a dark room for 15 days because of his FG involvement.
·He submitted an untranslated document and claimed it was a notice from the PSB that he had been detained for 15 days.
The decision of the RRT
The RRT affirmed the decision of the delegate refusing to grant the applicant a protection visa.
The RRT found that the applicant's written evidence was vague and lacked crucial details. It also found that there were some internal inconsistencies within the evidence.[19]
The applicant claimed he disappeared for 6 months but his application form said he was living at home until he departed for Australia.
The applicant claimed he was dismissed from his job. His initial application form stated that he worked at the same factory until he left the country.
The applicant initially claimed he was detained for one month and later claimed he was detained for 15 days. The RRT noted that it was not certain whether the applicant was referring to two different periods of detention.
The document provided by the applicant allegedly from the PSB was not translated. The RRT noted that, given its poor quality it would not be able to determine the genuineness of the document.
The RRT concluded that without the opportunity to speak with the applicant about the above inconsistencies it could not be satisfied that the applicant would have ever suffered harm as a result of his FG membership.[20]
Owing to a lack of supporting evidence the RRT concluded that is was not satisfied that the applicant had a well-founded fear of persecution for Convention reasons.
[19] court book, page 65
[20] court book, pages 65-66
The applicant relies upon his judicial review application filed on 6 May 2005. That application raises the following grounds. First, the applicant asserts that the decision of the RRT is void for jurisdictional error. Secondly, the applicant asserts that the RRT failed to apply the correct test, constructively failed to exercise its jurisdiction, and failed to address a central issue raised by him in that it did not consider whether, in the light of the applicant's association with Falun Gong, he had a well founded fear of persecution if he was to return to China. Thirdly, the applicant asserts that the RRT erred in failing to apply the correct test, constructively failed to exercise its jurisdiction, and breached the requirements of procedural fairness in assuming that the applicant could practice Falun Gong discretely. Fourthly, the applicant asserts that the RRT erred in failing to apply the correct test and constructively failed to exercise its jurisdiction in asking itself whether it was satisfied that the applicant would be harmed for the reasons he claimed if he returned to China.
There is some overlap and duplication in these grounds. In substance they amount to an assertion of a constructive failure to deal with the applicant's claims and procedural unfairness. The issues must be addressed in the light of the legislative framework in the Migration Act. I agree with, and adopt for the purposes of this judgment, the discussion of that framework in paragraphs 19 to 21 of the Minister's written submissions:
The decision of the RRT in the present case is a privative clause decision as defined by section 474(2) of the Act. With respect to privative clause decisions, section 474(1) provides:
A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
In S157, the High Court upheld the validity of section 474. It then went on to consider how section 474 should be reconciled with the remainder of the Act. The leading judgment is the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ (the joint judgment). In the central passage concerning the operation of section 474, their Honours held that:
[76] …the expression "decision[s] ... made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". Thus, if there has been jurisdictional error because, for example, of a failure to discharge ‘imperative duties’ or to observe "inviolable limitations or restraints", the decision in question cannot properly be described in the terms used in s 474(2) as "a decision ... made under this Act" and is, thus, not a "privative clause decision" as defined in ss 474(2) and (3) of the Act.
Section 474 therefore validly operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error.
It is apparent that the applicant failed before the RRT because the RRT considered that there was insufficient material before it to enable it to be satisfied that he faced a well founded fear of persecution in China because of his practice of Falun Gong.
On 1 May 2002, the RRT wrote to the applicant and his adviser. The RRT pointed out that it could not make a favourable decision on the basis of the material submitted by the applicant. The applicant was invited to a hearing on Wednesday, 29 May 2002. Obviously, this was so the issues could be explored further with the applicant. The copy of the letter directed to the applicant himself was returned to sender. The applicant had appointed a migration agent to represent him in relation to his review application before the RRT. The decision and reasons of the RRT[21], record that the RRT contacted the adviser on 20 May 2002. The adviser apparently told the RRT that she was unable to get in touch with the applicant and did not know whether he would come to the hearing.
[21] court book, page 63
The applicant says that this is rubbish and that he was contactable. However, I have no reason to doubt the accuracy of what the presiding member says the agent told the RRT. The RRT had no other means of contacting the applicant as they had no other address for him than the one he had given and he had given no other telephone number. When the applicant failed to appear at the time and place appointed for the hearing, the RRT was entitled to proceed in his absence pursuant to section 426A of the Migration Act. There was no procedural unfairness and no breach of procedure in the RRT acting as it did. Neither was there any actual or constructive failure on the part of the RRT to consider the applicant's claims.
The RRT could not grant the applicant a protection visa unless satisfied, for the purposes of section 65 of the Migration Act that he qualified for one. The presiding member was unable to be so satisfied on the basis of the limited material provided by the applicant. The lack of satisfaction on the part of the presiding member was sufficient to dispose of his application for a protection visa.
For completeness, I agree with the Minister's submissions in paragraphs 23 through to 31:
The respondent submits that there is no error in the RRT's decision. The RRT found that it had discharged its statutory duty to provide the applicant with an opportunity to give oral evidence and present arguments. The applicant failed to take up that opportunity.
The respondent submits that the RRT proceeded appropriately, and consistently with section 426A of the Act, to make a decision without taking further evidence from the Applicant. This approach was endorsed by the Full Federal Court in S58 of 2003 v Minister for Immigration[22] where their Honours held that:
[22] S58 of 2003 v Minister for Immigration [2004] FCAFC 283 at [26]
In our view the appellant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about her claims and to put forward the documents upon which it relied. He cannot complain if her application was rejected because, amongst other reasons, he failed to take up that opportunity.
Ground 2 in the application to this Court states that:
The Tribunal… failed to address a central issue raised by the applicant in that it did not consider whether in light of the applicant's association with the Falun Gong he had a well founded fear of persecution if he were to return to Peoples Republic of China…
The respondent contends that the RRT did consider whether the applicant had a well-founded fear of persecution because of his association with FG, but was unable to be satisfied whether that was the case.
In SJSB v Minister for Immigration[23] the Full Court upheld the decision in which the RRT found that the claims were made at 'such a general and vague level that the RRT cannot establish the relevant facts'. The Full Court concluded that a legislative regime that required a positive state of satisfaction as to whether protection obligations are owed mandated a refusal decision if that state of satisfaction is not reached.
This conclusion is supported by another Full Court decision in NAST v Minister for Immigration[24]. The Full Court saw no error in the RRT's approach, when unable to satisfy itself that the first appellant had a genuine subjective fear of persecution, and stated that the RRT had been bound to affirm the decision in that situation.
The RRT essentially proceeded in the same manner the present case.
The applicant did not provide any evidence whatsoever to substantiate his claims. The RRT invited the applicant to a hearing to explore and properly assess his claims. The applicant failed to avail himself of this opportunity, despite being notified that the RRT was not prepared to make a favourable decision on the information before it. The RRT could not therefore be satisfied as to whether the applicant's claims were true.
Ground 3 of the application to this Court alleges that the RRT decision required the applicant to practise FG discretely or in secret. The respondent contends that the RRT did not rely on any such information, and did not find that the applicant would be able to return to China if he practised FG discretely. The sole reason for the RRT's decision was its finding that it could not be satisfied as to whether the applicant's claims were true.
[23] SJSB v Minister for Immigration [2004] FCAFC 215 at [15]-[16]
[24] NAST v Minister for Immigration [2004] FCAFC 208 at [3]
There is no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision. I note that the Minister objects to the competency of the judicial review application. The consequence of my finding that the decision is a privative clause decision is that the judicial review application was not competent because it was not filed within the time prescribed in s.477 of the Migration Act. In my view nothing of particular significance turns on that because the effect of s.474 of the Migration Act is that the Court cannot deal further with the application anyway once the RRT decision is found to be a privative clause decision. That determination has been made by me following a final hearing.
I will dismiss the judicial review application. I will also order that the Refugee Review Tribunal be joined as the second respondent to the application. That is a necessary consequence of the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162.
As to costs, the Minister seeks an order for costs fixed in the sum of $2,800. The Minister's actual costs I am told exceed $4,000 and the orders sought takes into account an interlocutory costs order that I made earlier in these proceedings. The applicant pointed out that he is in immigration detention and has been in detention for about six months. In the circumstances, there may well be no practical utility in a costs order. However, I accept that costs should follow the event, and I further accept that the costs sought have been reasonably and properly incurred on behalf of the Minister when assessed on a party/party basis.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,800.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 August 2005
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