SZGPV v Minister for Immigration
[2006] FMCA 1348
•13 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGPV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1348 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether failure to provide protection visa application to Refugee Review Tribunal when protection visa application lost is breach of s.418(3) of Migration Act 1958 (Cth) – whether Refugee Review Tribunal decision requires a valid protection visa application – whether Applicant aware Refugee Review Tribunal lost protection visa application – whether Refugee Review Tribunal considered all claims made by Applicant. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 418; 418(3); 424C; 474; pt.8 div.2 |
| SZDOG v Minister for Immigration [2004] FMCA 972 Muin v Refugee Review Tribunal [2002] FCA 30 Applicant P40/2003 v Refugee Review Tribunal [2004] FCA 936 Samuel v Minister for Immigration and Multicultural Affairs [2000] FCA 854 SZECD v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) 227 ALR 656 |
| Applicant: | SZGPV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1698 of 2005 |
| Judgment of: | Emmett FM |
| Hearing dates: | 4-5 September 2006 |
| Date of last submission: | 5 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr M. Cleary |
| Solicitors for the Respondent: | Ms Z. Brauer, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1698 of 2005
| SZGPV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
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 dated
16 May 2005.
The Refugee Review Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 30 June 2003.
The application for a protection visa was refused on the basis that the applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The applicant was born on 1 January 1973 and claims to be from the People’s Republic of China (“the PRC”) and of Chinese ethnicity and Falun Gong faith (“the Applicant”).
The Applicant arrived in Australia on 19 May 2003, having legally departed from the PRC on a passport issued in his own name.
On 30 June 2003, 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 authorities in the PRC due to his involvement as a Falun Gong practitioner.
On 30 June 2003, 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.
On 4 August 2003, the Applicant lodged an application for review of the Delegate’s decision by an earlier constituted Refugee Review Tribunal. Before the earlier constituted Refugee Review Tribunal, the Applicant claimed he was not a Falun Gong practitioner in the PRC, but rather, promoted Falun Gong activities to assist his friends who were Falun Gong practitioners. The Applicant also claimed that the police were commencing an investigation of the Applicant’s involvement in assisting Falun Gong members.
On 15 April 2004, the earlier constituted Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 21 December 2004, Smith FM set aside the decision of the earlier constituted Tribunal and remitted the matter to the Refugee Review Tribunal to be determined according to law.
On 16 May 2005, a differently constituted Refugee Review Tribunal (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
On 30 June 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
In his application for review, the Applicant stated that he is a Falun Gong member and was involved in activities both in the PRC and Australia. The Applicant stated that many other members were suffering persecution in the PRC and all were suffering mental or even physical torment. The Applicant asserted that he would be persecuted on his return to the PRC.
The Applicant gave oral evidence at the Tribunal hearing with the assistance of an accredited interpreter. The Applicant claimed that, after Falun Gong was banned in 1999, until 2002, he made donations to Falun Gong and allowed his workplace to be used for Falun Gong lectures. The Tribunal found this claim “difficult to believe”. The Tribunal stated that independent evidence indicated that many adherents to Falun Gong had been subjected to serious harm in the PRC by authorities and the Applicant was unable to provide a cogent explanation as to why he was willing to risk such treatment by allowing his workplace to be used.
The Tribunal noted that he said he was not a Falun Gong practitioner, had never participated in any activity opposed to the government and was “vague when explaining what made Falungong in particular so significant for him that he was prepared to risk his personal safety and security consistently over several years.”
However, the Tribunal stated that, even if the Applicant had offered some assistance to adherents until mid 2002, it was not satisfied that the Applicant had ever been subjected to treatment amounting to persecution. The Tribunal found that the Applicant was never detained or treated by police.
The Tribunal noted that the Applicant’s employer continued to give him money out of friendship after he was dismissed and that formed part of the reason for the Tribunal concluding that the Applicant was not dismissed because of any imputed political opinion. The Tribunal found that his dismissal from his employment was because he had allowed outsiders to use the firm’s premises and that the outsiders were members of a banned group from which the employer wished to distance itself.
The Tribunal concluded that any difficulty that the Applicant had finding employment was not for a Convention reason.
The Applicant also claimed that he had been warned by a friend in late 2002 that he was being investigated by the police. The Tribunal found that claim implausible because it was not satisfied that the source of such a threat was reliable. The Tribunal noted that the most recent visit by police to his home was in July 2002, which was some 10 months before he left the PRC. The Tribunal noted that as the police had not visited his home for almost 3 years, including the final 10 months, they did not have any adverse interest in him. The Tribunal noted that the Applicant made an oral claim that he was living in another city for the final six months in the PRC before he left. However, the Tribunal also noted that, in oral evidence, the Applicant said he was reporting on a weekly basis to the residential committee in his home city and that he was living at the home address until he came to Australia. The Tribunal concluded that the Applicant was living at his home address until he came to Australia.
The Tribunal did not accept that the Applicant was regarded as a dissident or was under any politically motivated investigation when he left the PRC. The Tribunal was satisfied that the Applicant left the PRC openly and legally and in his own identity and he was able and willing to do so because he was of no adverse interest to the PRC authorities. The Tribunal found that the Applicant was not hiding before his departure and that he could have been readily located by police, questioned and detained if that had been their wish.
The Tribunal found that the Applicant did not have a well founded fear of persecution for a Convention related reason when he left the PRC in 2003.
The Tribunal noted that the Applicant had given evidence that he had not been involved in any Falun Gong activities since his arrival in Australia two years ago. It noted that the Applicant did not claim that the authorities in the PRC had shown any continuing interest in his whereabouts or activities since then.
The Tribunal concluded that it was satisfied that the Applicant does not have a well founded fear of persecution for a Convention related reason in the PRC now or in the reasonably foreseeable future and is therefore not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The proceeding before this Court
Preliminary questions
The Tribunal noted at the outset that it did not have the Department’s file, in particular the protection visa application. However the Tribunal did have the Delegate’s decision record before it. The Tribunal noted that it had regard to material referred to in the Delegate’s decision and other material available to it from a range of sources.
The Applicant gave oral evidence to the Tribunal on 16 May 2005.
A preliminary question arose as to whether or not there was any breach of s.418 of the Act and whether any such failure was capable of being a jurisdictional error.
If there was no breach of s.418, or, such a breach was not jurisdictional error, then a further question arises as to whether the Tribunal could conduct its review where there was no copy of the protection visa application. The First Respondent was granted an adjournment to prepare further evidence and submissions on these questions.
In relation to the first question as to whether or not there was a breach of s.418(3) of the Act, the First Respondent submitted that, where the Department’s file had in fact been lost, it was not possible to provide that file to the Tribunal. The First Respondent submitted that s.418(3) only compelled the provision of documents in the possession and control of the First Respondent. Section 418 is in the following terms:
“(1) If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
(2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:
(a) sets out the findings of fact made by the person who made the decision; and
(b) refers to the evidence on which those findings were based; and
(c) gives the reasons for the decision.
(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.”
At the adjourned hearing, leave was granted to the First Respondent to file in Court and read the affidavit of Zoe Elizabeth Brauer sworn
5 September 2006.
Ms Brauer’s affidavit annexed a letter from the Tribunal to the Applicant, dated 26 February 2004 and addressed to the Applicant, informing the Applicant that the Department file was not available and requesting the Applicant to provide particular information. The letter also provided extracts from a DFAT report in relation to the obtaining of passports and independent information about Falun Gong in the PRC, particularly that the Chinese government campaign against Falun Gong targeted leaders and organisers of the organisation. The Applicant was invited to comment on this information and various questions were asked of him about his practice in Australia. The Applicant was also asked to identify his points of disagreement with the Delegate’s decision.
Ms Brauer’s affidavit also annexed a file note recording a telephone call made on 13 May 2005 to the Applicant’s advisor, advising the Applicant that the Department had lost the Applicant’s file and requesting that a copy of the protection visa application and copies of any other material given to the Department be brought to the hearing. The file note noted that the Applicant’s advisor confirmed that she would give all that material to the Applicant to bring to the hearing.
In the circumstances, I am satisfied that the First Respondent did not have the Department’s file in its possession. Section 418(3) of the Act requires the Secretary to give to the Registrar relevant documents in the Secretary’s possession or control. Certainly the protection visa application is a relevant document. However, the evidence before me, and which I have accepted, is to the effect that the Applicant’s protection visa application is no longer in the possession or control of the Secretary. In those circumstances, I accept the submission of the First Respondent that there is no breach of s.418(3) of the Act, where the evidence is that the Department’s file, including the Applicant’s protection visa, is lost and is therefore no longer in the possession or control of the Secretary.
Counsel for the First Respondent also contended that, even if there was a breach of s.418(3) of the Act, there was a res judicata or issue estoppel of the issue because Smith FM in his consideration of the decision of the earlier constituted Tribunal, which had resulted in a remittal to the Tribunal for determination according to law (SZDOG v Minister for Immigration [2004] FMCA 972), had determined that there was no breach of s.418 of the Act and that, even if there was it could not amount to jurisdictional error.
Any submission relating to res judicata or issue estoppel based on that ground is misconceived for two reasons.
First, Smith FM concluded that, in relation to the issue between the parties, as to whether or not the decision of the Tribunal was affected by jurisdictional error, he had determined that, indeed, it was affected by jurisdictional error. Accordingly, to the extent that the only cause of action or issue between the parties was whether or not the Tribunal’s decision was affected by jurisdictional error and was therefore a privative clause decision, that issue had been determined by Smith FM. The ratio of his decision was the Tribunal’s failure to properly exercise its discretion in deciding to proceed with its review, without taking any further step to invite the Applicant to attend a hearing before it, in circumstances of the case, was a breach of s.424C of the Act.
Second, in the course of his reasons, Smith FM stated that he had explored with counsel for the Minister the effect of the Secretary’s failure to forward the Department’s file to the Tribunal. Smith FM observed that counsel for the First Respondent submitted that the Secretary was under no duty if the file could not be found and, in any event, non compliance with s.418(3) would not affect the validity of the proceeding in the Tribunal. Smith FM accepted the latter submission and referred to Muin v Refugee Review Tribunal [2002] FCA 30 (“Muin”) and Applicant P40/2003 v Refugee Review Tribunal [2004] FCA 936. Those comments by Smith FM are clearly obiter and I do not accept that he was seeking to make a definitive finding as to whether breach of s.418(3) was ever capable of amounting to jurisdictional error. The very passage that he refers to in Muin makes it clear that:
“It is conceivable that a failure by the Secretary to comply with the requirements of s.418(3) of the Act might, in some cases, result in or contribute to jurisdictional error on the part of the Tribunal.” ([45] per Gaudron J).
However, because I have accepted that the requirements of s.418(3) were not invoked where there is evidence that the Department had lost the file, it is unnecessary to consider further the question of whether such a breach would be jurisdictional error in the circumstances.
In relation to the question of whether or not the Tribunal’s decision was predicated upon being satisfied of a valid protection visa application, I note that, at one point of time, an application for a visa was valid if, and only if, it was made in a prescribed way, such that use of that form was essential to the existence of a valid application (see Samuel v Minister for Immigration and Multicultural Affairs [2000] FCA 854 per Wilcox J). That is no longer the case.
Indeed, in SZECD v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) 227 ALR 656 at [23]-[27], Bennett J found that, after considering the authorities, invalidity of an application before the Delegate is cured upon merits review by the Tribunal. A lost protection visa application could be in no worse position than an invalid protection visa application in that the conduct of the Tribunal’s review is not affected by whether or not the protection visa application is lost or invalid because a merits review cures any such difficulty. It seems to me, this can be so only as long as the Tribunal considers and determines all claims made by an applicant and such an applicant is aware that claims made on the protection visa application may not be before the Tribunal.
In the case before me, the Tribunal had drawn to the Applicant’s attention on two occasions, once in writing and the second in a telephone conversation with the Applicant’s advisor, the fact that the Tribunal did not have the Department’s file including the protection visa application. In those circumstances it is for the Applicant to ensure that all his claims are brought to the attention of the Tribunal, either in writing or orally. The Applicant does not make a complaint that there were claims he made that were not considered by the Tribunal and which were otherwise in his protection visa application. To the extent that the Applicant does make a complaint that the Tribunal did not consider his claims, such allegation was wholly unparticularised and no further submission was made before me by the Applicant in support of that ground. Accordingly, I cannot see how, in the circumstances of this case, the Tribunal’s decision to proceed with its review in the absence of the protection visa application can amount to jurisdictional error.
In the circumstances, the making of claims by the Applicant to the Tribunal both in his review application and orally was sufficient to ground the jurisdiction of the Tribunal to proceed with its review.
The Applicant’s grounds of review
The Applicant was unrepresented before this Court. He confirmed that he relied on the grounds in his amended application which are in the following terms:
“1.The Tribunal fell into jurisdictional error
Particulars
(a) The apprehension of bias arises fro mthe (sic) following statements by the Tribunal in its judgment:
“His account of his support for Falun gong after it was banned in 1999 until 2002, by making donations and allowing his workplace to be used for Falungong lectures and so on, was somewhat difficult to believe. The independent evidence set out above makes clear, and I accept, that many adherents of Falungong have been subjected to serious harm in China by the authorities. [The Applicant] was unable to provide a cogent explanation as to why he was willing to risk such treatment.” The above statement was actually induced by the bias of the officer. The Tribunal did not provide a rational and logical foundation for the refusal of my application.
(b) The officer accepted that the independent evidence set out that many adherents of Falungong have been subjected to serious harm in China by the authorities, (sic) The officer also asked me why I was willing to risk such treatment as mentioned above, however the officer mentioned at the next paragraph : “However, even if he did offer some assistance to adherents until mid 2002, for the following reasons I am not satisfied that he was every (sic) subjected to treatment amounting to persecution nor that he faced a real chance of Convention-related persecution when he left China in May 2003.
(c) The Tribunal did not observe Migration Act 1958 properly to making the decision.
(d) The Tribunal failed (sic) consider my claims.”
Ground (a) – apprehension of bias
The Applicant contended that the Tribunal was biased because it rejected the Applicant’s claim that he made donations and allowed his workplace to be used for Falun Gong lectures. The Tribunal preferred independent information that Falun Gong adherents were subjected to serious harm and the Applicant had not provided a cogent explanation as to why he was willing to risk such treatment. The Applicant contended such a finding indicated bias on behalf of the Tribunal.
However, the Tribunal went on to state that, even if the Applicant had offered some assistance to adherents in mid 2002, it was not satisfied that the Applicant had ever been subjected to treatment amounting to persecution prior to leaving the PRC in May 2003. It was that finding that ultimately led the Tribunal to conclude that the Applicant did not have a well founded fear of persecution for a Convention related reason. The Tribunal set out the claims made by the Applicant and its concerns were canvassed with the Applicant. The Tribunal noted the Applicant’s responses. These are referred to above in these reasons.
The paragraph quoted by the Applicant in this ground does not establish any bias or apprehension of bias on the part of the Tribunal and such a ground is misconceived.
Accordingly this ground is rejected.
Ground (b)
This ground appears to form part of the Applicant’s complaint in relation to ground (a) and appears to misunderstand the reasons provided by the Tribunal. The Tribunal has stated that it found the Applicant’s claim of allowing his workplace to be used for Falun Gong activities to be difficult to believe, however, the Tribunal went on to consider the Applicant’s claims in the context of having accepted that the Applicant may have offered some assistance to adherents until mid 2002.
Again, the conclusions of the Tribunal are dealt with above in these reasons and were open to it on the evidence and material before it.
The Tribunal’s conclusions were based on the factual findings that it made. That is its duty and there is no jurisdictional error in the manner in which it was carried out.
Accordingly this ground is not made out.
Ground (c) – “The Tribunal did not observe Migration Act 1958 properly to making the decision.”
There are no particulars provided in support of this ground. There is no apparent failure by the Tribunal to observe the Act in the conduct of its review and in its decision.
Accordingly this ground is not made out.
Ground (d) – “The Tribunal failed consider my claims.”
This ground is unparticularised and the Applicant made no submissions before me in support of it (see paragraph 45 in these reasons).
The only concern that I had in respect of this ground by the Applicant was that, where the protection visa application was lost and may have contained claims that the Applicant may have assumed were being considered by the Tribunal, over and above any claims he made in his review application or oral claims. However, plainly, on the evidence before me, that is not so. I refer particularly to the letter sent by the Tribunal to the Applicant, dated 24 February 2004, in which it informed the Applicant that the Department file was not available and provided detailed information to the Applicant about the type of information he would need to have at the Tribunal hearing and also indicating to him the content of independent information and DFAT reports to which the Tribunal had regard.
Further, on 13 May 2005, the Tribunal informed the Applicant’s advisor that the Department file had been lost and that it would be necessary for the Applicant to bring a copy of his protection visa application to the hearing together with various other documents.
In the circumstances, I do not accept that there were any claims made by the Applicant that were not considered by the Tribunal.
The Tribunal identified, considered and determined the claims made by the Applicant and the evidence provided by the Applicant in support of those claims. Ultimately, the Tribunal rejected those claims. The findings and conclusions of the Tribunal were open to it on the evidence and material before it.
Accordingly, this ground is rejected.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error. Accordingly, the decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The application is dismissed with costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 12 September 2006
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