SZGIL v Minister for Immigration - [2006] FMCA 1220

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGIL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1220

MIGRATION – Refugee – failure to attend the Tribunal hearing – Tribunal could not be satisfied on the material before it – whether bad faith – whether failure to consider the applicant’s claims – Tribunal’s duty to investigate – whether Tribunal had observed s.424A of the Act– no reviewable error – application dismissed.

Migration Act 1958, ss.426A, 426A(1) 424A, 422B, 65, 36(2)
Federal Magistrate Court Rules 2001, Rule 13.10(a), 13.03A(c), 13.03A(e)

SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528
WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZGIL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1282 of 2005

Judgment of:

Nicholls FM

Hearing date:

21 July 2006

Date of Last Submission:

19 July 2006

Delivered at:

Sydney

Delivered on:

21 July 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Mr. A. Cox

Solicitors for the Respondents:

Phillips Fox

ORDERS

The application is dismissed in upholding the respondent’s Notice of Motion.
The applicant pay the first respondent’s costs set in the amount of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1282 of 2005

SZGIL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

I have before me an application filed in this Court on 18 May 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 March 2005 affirming the decision of the delegate of the respondent Minister made on 7 December 2004 not to grant a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
I have before me, for the respondent, a Notice of Motion, filed on
16 January 2006, seeking summary dismissal of the application pursuant to rule 13.10(a) of the Federal Magistrate Court Rules 2001 (“the Rules”) on the basis that there is no reasonable prospect of success in prosecuting the proceedings.
I also have before me, in support of the respondent’s Notice of Motion, the affidavit of Anthony Cox, a solicitor in the employ of the respondent’s solicitors, sworn on 13 January 2006, which was admitted into evidence before me today. I also have written submissions for the respondent, filed on 19 July 2006, in support of the Notice of Motion.
The affidavit of Anthony Cox and the material in the Court’s file reveals, relevantly, the following:
1)The application, in relation to the decision of the Tribunal handed down 19 April 2005, was filed on 18 May 2005.
2)As a result of a directions hearing on 1 June 2005 (before a Registrar of this Court), the applicant was ordered to file and serve an amended application giving complete particulars of each ground of review relied upon by 24 August 2005 (in addition to any evidence sought to be relied upon). The matter was set down for final hearing on 20 November 2006.
3)An amended application was filed by the applicant on 17 August 2005.
4)On 4 November 2005, the respondent’s sought summary dismissal of the application. This was refused. Orders were made that the applicant file and serve a further particularised amended application by 18 November 2005. In addition, that there be liberty for either party to apply to the Court for further directions, or for the listing of any Notice of Motion. No further application was filed.
5)On 16 January 2006 the first respondent filed a Notice of Motion seeking that the application be dismissed as no reasonable cause of action is disclosed in relation to the proceedings. Submissions in support of this Notice were filed on 19 July 2006.
6)This Notice of Motion was listed before me on 21 July 2006.
The applicant is a national of the People’s Republic of China who arrived in Australia on 2 October 2004. The applicant’s claims for a protection visa were based on his assertion that his land had been acquired for a reconstruction project, and although he was paid compensation, the money was not adequate. He also claimed authorities in his home town had “a very bad human rights record.” Further, that he was involved in protests against his local government where many were arrested, but he managed to escape. He claimed that he lost his home, land and job and could no longer survive. He claimed that if he returns to China he will have no access to land or compensation. He claimed that if he pursued “his rights” he would be targeted by police. The application for a protection visa is reproduced in the Court Book (“CB”) at CB 1 to CB 26 (see particularly an attached statement at CB 26). The application for review is reproduced at CB 40 to CB 43. No additional claims were made.
Following receipt of the application for review the Tribunal wrote to the applicant by letter dated 6 January 2005 (CB 44 to CB 45) setting out the process by which the review was to be conducted. The letter specifically set out the importance of a hearing in this process. The letter was sent to the applicant’s address for service (CB 42 to CB 44).
By letter dated 25 January 2005 (CB 46 to CB 47) the Tribunal advised the applicant that on what was before it, it could not make a decision in his favour. It invited the applicant to a hearing to provide evidence and argument in support of his claims. The Tribunal advised that if the applicant was not able to attend the hearing he should contact the Tribunal immediately. Further, that if he did not attend the hearing and no postponement was granted it could proceed to make a decision without further notice to him.
Although the applicant responded on 11 February 2005 indicating that he wanted to attend the hearing (CB 48), he did not attend. There is nothing before the Court to show that the applicant provided any explanation to the Tribunal for this or that he sought an adjournment. The Tribunal proceeded pursuant to s.426A of the Migration Act 1958 (“the Act”) to make its decision (CB 60.4).
A consideration of the Tribunal’s “Findings and Reasons” in its decision record reveals that the Tribunal:
1)Found that the applicant had provided “scant detail” in his application for a protection visa (CB 60).
2)Noted the applicant had “not explained” detail relevant to his situation from 2000 until 2003 when he claimed that local lands were acquired (CB 61.3).
3)Noted that the applicant referred to protests in 2003, but did not claim that there were any adverse consequences resulting for him after that time, or that police investigated or pursued him for taking part in those protests (CB 61.4).
4)In relation to the claim that the applicant had lost his home, land and job and could not survive, found that the claims were “not supported in any way” (CB 61.1).
5)Found that further details and clarification about the applicant’s claims would have been forthcoming from the applicant (in writing or at a hearing) “if his claims were genuine and could be substantiated” (CB 61.7).
6)Found that at the date of the decision there was no
“persuasive evidence” before the Tribunal that enabled it to conclude that there is a real chance that the applicant will face serious harm for the purposes of the Convention if he returns to China (CB 61.8).
On this basis the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason.
The application to this Court, filed on 18 May 2005, complains:
“1. The procedures that were required by the Act and Regulations to be observed in connection with making of the decision were not observed.
2.That the decision involved an error of law being an error of law involving an incorrect interpretation of the applicable law to the facts as found by the Tribunal.
3.The Tribunal did not consider all the documents, which were submitted by the applicant with any reasons, a jurisdictional error was occurred by the Tribunal.”
The applicant’s amended application, filed on 17 August 2005, complains:
“1.The Tribunal did not make a genuine and realistic attempt to make the decision in a bona fide manner in that the decision record contained pro forma and repeated material;
2.The RRT breached the rules of procedural fairness by failing to give me an opportunity to comment on information, which the RRT relied on.
3.I have a real fear of persecution upon returning to China, which was not considered by the Tribunal.
4.The Tribunal failed to make necessary investigation into what had happened in my hometown as I claimed in my application. Thus the Tribunal made an error in term of procedural fairness in relation to this case.”
At the hearing before me today the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Mr. Cox appeared for the respondent Minister. The applicant initially failed to appear at the appointed time and Mr. Cox pressed that the application be dismissed in the absence of the applicant (pursuant to rule 13.03A(c) or rule 13.03A(e) of the Rules) and rule 13.10(a), in circumstances where the claim for relief had no reasonable prospects of successful prosecution.
Mr. Cox tendered, and I marked as exhibits, the following:
1)A letter dated 17 January 2006 enclosing the respondent’s Notice of Motion and the affidavit of Anthony Cox in support (marked Respondent’s Exhibit 1 - “RE 1”))
2)A letter dated 3 January 2006 notifying the applicant that the matter was listed for hearing on 21 July 2006, today’s date (marked Respondent’s Exhibit 2 - “RE 2”))
3)A letter dated 18 July 2006 enclosing the respondent’s outline of submissions (marked Respondent’s Exhibit 3 - “RE 3”))
I was satisfied that the applicant had been properly notified of the hearing and that the affidavit and submissions in support of the respondents Notice of Motion had been sent to the applicant's last known address for service. Sometime into Mr. Cox's submissions in support of the dismissal of the application, in the absence of the applicant, the applicant appeared. He claimed he had not received any of this correspondence (“I have not received the letters”). The applicant indicated that the address for service was “his friend’s address” and that his friend did not pass on the documents to him. The applicant however provided no explanation as to how he otherwise knew of the matter being listed today. In all the circumstances, (the respondent’s exhibits giving the applicant notice, and the opportunities that the applicant had been given to file an amended application that gave full and complete particulars in support of his complaints, the length of time that had elapsed since these opportunities were given to the applicant, the failure of the applicant to provide any complete particulars) I was satisfied that it was appropriate that the hearing of respondents Notice of Motion should proceed. I also noted that the applicant had been given the opportunity to obtain advice from a lawyer on the panel of the Court's Legal Advice Scheme (although the lawyer subsequently advised the Court that he had difficulty in contacting the applicant) and that the applicant did not seek any adjournment. Nor could I discern any utility in providing further time to the applicant arising from anything that the applicant put to the Court. In any event, I did adjourn for an appropriate period on the day to allow the interpreter to translate, in particular, the affidavit of Anthony Cox.
On resumption, I gave the applicant the opportunity to respond to the matters set out in the affidavit. The applicant stated that when he made his application for a protection visa he had “asked somebody else to do it for me”. Beyond this the applicant was unable to provide any further comment to the Court. When I pressed the applicant with an opportunity to continue his response was “I don't know what to say”. In these circumstances I sought submissions from Mr. Cox with a view to giving the applicant (with the assistance of the interpreter) a further opportunity to better understand the relevant issues before the Court.
Mr. Cox submitted:
1)The applicant did not attend the hearing, and the Tribunal proceeded, pursuant to s.426A of the Act, to make a decision on the material before it. Mr. Cox submitted that there was no error revealed in this course of action.
2)The Tribunal considered all the material provided by the applicant and noted that there were no further claims or materials provided on the application for merits review.
3)In relation to the applicant’s grounds of complaint (from the amended application) Mr. Cox submitted:
Ground 1: That in relation to the complaint that the Tribunal did not deal with the application in a “bona fide”, genuine or realistic manner, no particulars were provided, and there is no evidence to support that ground. The Tribunal invited the applicant to a hearing, and then dealt with the material before it. As such, the ground had no substance.
Ground 2: In relation to any breach of procedural fairness, Mr. Cox again pointed to the fact that this complaint was un-particularised and the Tribunal was clearly entitled, pursuant to s.426A(1), to proceed to a decision as it did. Mr. Cox, in written submissions, relied on the decision SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 (“SZEZI”) at [29]. He argued that the “reason” why the applicant was unsuccessful was due to the applicant’s provision of insufficient evidence and as such no duty arose under s.424A. In this regard see also below.
Ground 3: This amounted to an assertion that he had a fear of persecution that was not considered. Mr. Cox submitted that this went to the merits of the applicant’s refugee claims.
Ground 4: This ground related to the Tribunal’s failure to investigate what happened in the applicant’s “hometown”. Mr. Cox referred to his written submissions, and relied on NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [18] to [21] and WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [21], [24]-[25] as authority for the proposition that the Tribunal was not required to further investigate “over and above” the material supplied by the applicant.
As the applicant is unrepresented before the Court, I considered whether any other ground of review or error was discernable from the material before me. In this regard, I referred Mr. Cox to the Tribunal’s decision record reproduced at CB 61.7 where the Tribunal states:
“In the Tribunal’s view it would be expected that further details about the applicant’s claims, together with some clarification of the matters referred to above, would be forthcoming from the applicant, either in writing in the applications or orally at a hearing, if his claims were genuine and could be substantiated. As at the date of decision there is no persuasive evidence before the Tribunal that enables it to conclude that there is a real chance that the applicant will face serious harm for the purposes of the Convention, either now or in the reasonably foreseeable future, if he returns to China.”
The question is whether the Tribunal moved beyond merely being unable to be satisfied on what was before it, into the territory of forming a positive (and adverse) view, based on the lack of detail in the protection visa, and the failure by the applicant to provide further information. Further, whether the Tribunal’s view that further details would be expected to be “forthcoming” if the applicant’s claims were genuine, could be characterised as a use of the information (or lack of) in the applicant’s protection visa, in a way so as to lead to the characterisation of this information, and reliance on this information, as some positive and adverse finding in relation to the “genuineness” of the claims. In other words to have relied in part on information in the protection visa application in such a way as to support a finding (which was a part of the decision) which was more than just an inability to reach the requisite level of satisfaction for the grant of the protection visa. If so, such information should have been given to the applicant pursuant to s.424A(1) of the Act (Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2).
Mr. Cox referred the Court to SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [11] to [13] where Allsop J. states:
“[11] The Tribunal's obligation in relation to the grant or refusal of visas is contained within ss 36 and 65 in particular of the Migration Act. If the Tribunal is not satisfied that Australia has protection obligations in relation to the applicant the Tribunal must refuse the visa. Thus, it is necessary to understand why it was that the Tribunal reached the view that it did in relation to this applicant's claims, and in particular whether any information was the reason or a part of the reason for the decision.
[12] In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain. The Tribunal concluded that on the material the absence of information was such that it was not able to reach the requisite state of satisfaction. In SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1195, I said the following at paragraph 29, which is equally applicable to the matter here:
‘On one view it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of section 424A(1) by section 424A(3)(b) it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis ... whilst in some cases an 'unbundling is necessary' in order sensibly to apply section 424A to the expressed reasons of the Tribunal, here the reason for the decision is plain. 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, 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 a reasonable part of the reason for the decision. It was the lack of requested further assistance and explanation that was the reason.’
[13] In my view, looking at the Tribunal's reasons here, those comments equally apply here. The only question as to whether or not leave should be granted would be to argue that those reasons in SZEZI misstate the law in a case such as this in relation to the operation of s 424A.”

Mr. Cox described the Tribunal’s statement in this regard as the mere positing of an “expectation” (CB 61.7). That the statement cannot be characterised as amounting to a finding in relation to the claims based on any information so as to bring it within the kind of information required to be put to the applicant pursuant to s.424A. Mr. Cox further submitted that in any event, the Tribunal made it clear that the reason for its decision was that at the time of its making, there was “no persuasive evidence” before the Tribunal. Further, he emphasised that there had been no finding based on information in the protection visa application that “went against the applicant” in terms of credibility.
At the conclusion of Mr. Cox’s submissions I gave the applicant a further opportunity to address the Court. He indicated that he had “nothing” to say. The applicant complained that the Tribunal decision contained “pro forma and repeated material” and that this shows that the Tribunal did not make a genuine and realistic attempt to make the decision in a bona fide manner. I agree with Mr. Cox that there is nothing from the applicant to indicate what the “pro forma and repeated material” is, or in what fashion the material is repeated. If the complaint seeks to assert that the material appearing under the heading “Definition of Refugee” (CB 56) is repeated in the sense that it is common material often appearing in Tribunal decisions, then such a presentation, which sets out the relevant Convention and legal issues common to all applications for review of decisions involving protection visas, does not show that the Tribunal did not give proper consideration to the applicant's claims. If, on the other hand, the applicant claims the repetition is the setting out of the applicant's claims under the heading “Claims and Evidence” (CB 58) then this is nothing more than an appropriate presentation of what was before the Tribunal in terms of claims made by the applicant. The critical area of the Tribunal's decision record, where the Tribunal's relevant analysis and consideration is set out, does not show any pro forma material or repeated references such as to show that the Tribunal did not give proper consideration to what had been put before it. I cannot see in these circumstances what more “genuine and realistic attempt” the Tribunal could have made, particularly in circumstances where the Tribunal set out for the applicant the process that it would employ in reviewing his application, invited him to a hearing (to which he clearly had notice and responded that he wanted to attend) and then made no attempt to explain his failure to attend the hearing to the Tribunal (and nor did he claim before the Court now anything to the contrary). The applicant's response to the invitation to the hearing (CB 48) was received by the Tribunal on 11 February 2005. The hearing had been set down for 1 March 2005. The Tribunal did not hand down its decision until 19 April 2005 (CB 49). In the ample time available to him, there is nothing to show that the applicant made any attempt to contact the Tribunal to explain any difficulty in attending on the scheduled day, let alone seeking any further hearing date. I cannot see that the applicant's first ground of complaint can succeed. Further, to the extent that this may be said to be a complaint that the Tribunal acted in bad faith, then the applicant has put no evidence whatsoever to establish such a claim and with reference to relevant authorities (Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142). Nor is any such claim discernible on the material put before the Court now.
The applicant’s complaint that the Tribunal breached the rules of procedural fairness by failing to give him an opportunity to comment on information which the Tribunal relied, is also not made out. I note that given the time of application to the Tribunal for review (which post dated the introduction of s.422B of the Act) that the Tribunal's obligations in this regard are found exhaustively in Division 4 Part 7 of the Act (Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61). To that extent I did give consideration as to whether the Tribunal failed in its obligation to provide the applicant with an opportunity to comment in writing on information upon which it relied pursuant to s.424A(1) of the Act. However, with reference to what is set out above, a plain reading of the Tribunal's decision is that “on the evidence before it” (CB 61.9), it could not reach the relevant level of satisfaction such that the granting of a protection visa to the applicant would be mandated (s.65 and s.36(2) of the Act). The Tribunal clearly noted that the applicant had provided “scant detail” of his claims and further noted, in its analysis as at the date of the making of its decision, that there was “no persuasive evidence before the Tribunal” that enabled it to conclude that there was “a real chance of the applicant would face serious harm for the purposes of the Convention”. The applicant’s failure to provide sufficient material to satisfy the Tribunal was the reason for the Tribunal's decision. As such I can see no failure of the Tribunal in relation to any obligation under s.424A(1) of the Act. Nor can I see any failure by the Tribunal pursuant to s.425 or s.425A of the Act. On what is before me the Tribunal clearly invited the applicant to appear at a hearing and the Tribunal's invitation complied with the matters set out in s.425A. Nor for that matter is any breach of the Tribunal's obligations under the procedural fairness principles at general law (if these were to apply) apparent. The applicant was clearly put on notice of the Tribunal's processes in conducting the review, was clearly put on notice that on what he had put before the Tribunal it could not be satisfied, and was invited to a hearing before the Tribunal. Further, the applicant was also given the opportunity to make any further submission to the Tribunal by way of documentary evidence. He indicated that he would appear at the hearing, but did not appear and provided no explanation to the Tribunal for the failure and nor did he seek any postponement or adjournment of the hearing date. In all the circumstances, I cannot see any failure based on any procedural fairness principles at general law. Ultimately, the applicant was given, and chose without explanation not to take, the opportunity to enhance his arguments before the Tribunal. As the Full Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5], the Tribunal's decision was the “inevitable consequence” of the applicant's actions.
The applicant also complains that he has a real fear of persecution upon returning to China and that this was “not considered by the Tribunal.” The applicant's assertion of a real fear of persecution is of course, as Mr. Cox submitted, an issue that goes to the merits of the applicant’s refugee claims. As such, it falls within the category of impermissible merits review by the Court (Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259). To the extent that this is a complaint that the Tribunal did not consider the applicant’s claims then there is nothing in light of what is set out above to substantiate this claim.
The applicant's complaint that the Tribunal failed to make necessary investigation as to what happened in his home town is again, in light of what is set out above, not an assertion that would lead to a successful outcome before the Court for the applicant. No such duty to investigate arises in the circumstances of this case. In any event, the applicant was given every opportunity to provide further detail into what happened in his home town and chose not to take up that opportunity. I note Mr. Cox’s submissions (and reference to authority) on this point and I accept those submissions.
In all therefore, I could not see any jurisdictional error in the Tribunal's decision arising from the applicant's grounds in his amended application. Nor is any such error evident on the material before the Court now. This application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: 23 August 2006