SZGQK v Minister for Immigration

Case •

[2006] FMCA 369

•

13 February 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGQK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 369
MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in the PRC by reason of being assumed to be a Taiwanese spy – applicant failed to appear at Tribunal hearing.
Migration Act 1958 (Cth), ss.36; 65; 425; 425(1); 425(2)(b); 425A(3); 441C(4); 474
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171
Applicant: SZGQK
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG1728 of 2005
Judgment of: Emmett FM
Hearing date: 13 February 2006
Date of Last Submission: 13 February 2006
Delivered at: Sydney
Delivered on: 13 February 2006

REPRESENTATION

The Applicant appearing on his own behalf
Counsel for the Respondent: Ms McNaughton
Solicitors for the Respondent: H. Blackman, Blake Dawson Waldron Lawyers

ORDERS

  1. The application before this Court is dismissed.

  2. I order that the applicant pay the First Respondent’s costs in an amount of $4400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1728 of 2005

SZGQK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-Tempore Judgment)

  1. The Applicant relies on an amended application filed on 27 September 2005, in which he seeks judicial review of a decision of the Refugee Review Tribunal, made on 17 May 2005. 

  2. The grounds relied upon by the Applicant in the amended application are as follows:

    “1. The decision involved an error of law in that:

    (a)Procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed.

    (b)The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

    (c)There was no evidence or the other materials to justify the making of the decision.”

  3. The relevant background and the Tribunal’s decision is accurately summarised by the First Respondent in their written submissions in paragraphs 2 to 9, which are set out as follows:

    “2. The applicant, a citizen of the People’s Republic of China, arrived in Australia on 19 December 2004. He arrived on a passport issued in his own name, with a Temporary Business visa. The applicant is of Chinese ethnicity.

    3. On 24 January 2005 the applicant lodged an application for a protection visa, together with annexures, with the Department of Immigration and Multicultural and Indigenous Affairs pursuant to the Migration Act 1958 (“the Act”). A delegate of the respondent refused to grant a protection visa on 23 February 2005. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision on 14 March 2005, and on 7 June 2005, the Tribunal affirmed the decision not to grant the applicant a protection visa. The applicant applied for review of the Tribunal’s decision on 4 July 2005, and filed an amended application on 27 September2005.

    Nature of applicant’s claim for refugee status

    4. The applicant’s claims were set out in detail by the Tribunal at pages 66 – 67. In short, he claims to fear persecution on the basis of being suspected of being a Taiwanese spy.

    The Tribunal’s approach

    5. The Tribunal was not satisfied, for the various reasons is set out, that the applicant has a well-founded fear of persecution.

    6. The Tribunal noted that the applicant had foregone the opportunity to give oral evidence, and therefore was only able to proceed on the evidence before it.

    7. The Tribunal accepted that in the late 1990s the applicant may have been the subject of surveillance and investigation because he worked for a Taiwanese enterprise, but was not satisfied that this amounted to persecution, or that this remained a significant problem when he left China openly on a legally obtained passport in his own name 5 years later.

    8. The Tribunal did not accept that the applicant was suspected of being a spy as he was not questioned or detained on leaving China. Further, it was not satisfied that the applicant was dismissed because he was suspected to be a spy, but that he had exaggerated the extent of any suspicions and his circumstances and difficulties.

    9. The Tribunal was satisfied that if there had been serious suspicions of the applicant he would have been at least detained and interrogated. The Tribunal noted the independent information that it was improbable that dissidents on wanted lists would be able to exit on passports issued in their own names, and was not satisfied that suspected Taiwanese spies would be regarded less stringently than political dissidents. It further noted that the applicant’s ability to depart openly did not suggest that the applicant was of any significant or continuing concern to the Chinese authorities. Finally, the Tribunal noted that the applicant did not provide any documentary evidence corroborating critical aspects of his claims.”

  4. The Applicant is unrepresented before this Court, although he has the assistance of an interpreter.

Ground 1

  1. This ground relates to a claim that the decision involved an error of law in that procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed.

  2. There are no particulars furnished by the Applicant in respect of this ground. However, I understand the ground to refer to a complaint that the Tribunal, in purporting to issue an invitation pursuant to s.425(1) of the Migration Act 1958 (Cth) (“the Act”) which, pursuant to ss.425A(3) and 441C(4) of the Act, required a minimum of 14 days’ notice to the Applicant.

  3. In fact, in this case the relevant chronology is that the Applicant lodged his application for review by the Tribunal on 14 March 2005.  On 15 March 2005, the Tribunal confirmed receipt of his application for review and invited him to send any further documents, information or other evidence that he wished the Tribunal to consider.  The letter also identified the contact details of the translating and interpreting service available to the Applicant.

  4. Relevantly, on 19 April 2005, an invitation was sent to the Applicant inviting him to attend a hearing on 9 May 2005.  That letter informed the Applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone.  The letter further invited the Applicant to send any new documents or written arguments that he may wish the Tribunal to consider.

  5. On 27 April 2005, the Tribunal received a response to the hearing invitation, signed by the Applicant and indicating that he did not wish to attend a hearing.

  6. On 4 May 2005, the Applicant was contacted by telephone by a native Mandarin speaker, on behalf of the Tribunal, advising him that, because the Tribunal’s letter of 19 April 2005 did not provide the full period of notice of 14 days as required by the legislation, the Tribunal was intending to reschedule the hearing to 2 June 2005.  The Tribunal records in its decision, in accordance with a file note that is not disputed by the Applicant, that the Applicant confirmed that he had already sent a written response declining the offer of hearing, that he did not wish to attend a hearing and that his decision had nothing to do with the question of the period of notice provided.

  7. Accordingly, the Tribunal proceeded with its review on 9 March 2005, without offering the Applicant any further opportunity to appear before it.

  8. The Applicant submits, this afternoon, that it was unjust for the Tribunal to proceed with the hearing without rescheduling a further hearing time where it had not complied with the Act.

  9. The First Respondent concedes that the 14 day prescribed period pursuant to Migration Regulation 4.35D, was not complied with but contends that s.425 of the Act, being part of Div 4 of the Act, is to be read in an ambulatory manner, as opposed to a sequential manner, such that it matters not that the invitation to appear at a hearing is not in accordance with s.425(1) of the Act where the Applicant has consented to the Tribunal deciding the review without the Applicant appearing before it.

  10. The First Respondent referred to the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, particularly McHugh J at [60] and [61] and Kirby J at [154]. Those paragraphs are as follows:

    “60. But this does mean that s 424A is spent because s425 is engaged. In other words, the Division does not necessarily compel a sequential process, so that once the s 425 procedure has commenced or is in progress, s 424A no longer has any role to play. The obligation to deal fairly with applications for review must continue throughout the Tribunal’s review. One aspect of that obligation is that the applicant be given the opportunity to comment upon adverse material. Because that is so, the Division should be interpreted so as to require the Tribunal to give the applicant the opportunity to comment on adverse material obtained at a hearing before the Tribunal (when the applicant or another person gives evidence). No doubt, this reasoning is open to criticism that it is circular. It assumes that one aspect of the Tribunal’s obligation in conducting the review is to give the applicant the opportunity to comment upon adverse material. Such a result only obtains if the Division is construed to that effect – which begs the question. But given the rule that the principles of procedural fairness apply unless excluded by express words or necessary implication the assumption seems sound.

    61. Another argument that favours a construction of the Division for which the appellants contend is that there is nothing in the Division to suggest that the Division is to have a strict sequential operation. If it were, the exercise by the Tribunal of its powers of review would be substantially confined. In the context of the otherwise broad powers of the Tribunal in the conduct of the review, such a result could hardly have been intended by Parliament.

    154. Sequential v ambulatory approach: The second issue represents the centrepiece of this appeal. It is the point upon which differing views have been expressed in this Court. The essential question is whether the provisions in Pt 7, Div 4 of the Act, as applicable at the relevant time, are to be treated as having sequential operation (as Gleeson CJ [116] and Gummow J favour [117]). Or whether they are to be given an ambulatory operation so as to engage the performance by the Tribunal of its functions wherever, by their terms, those provisions apply to the circumstances of the case (as favoured by McHugh J[118] and Hayne [119]). I support the analysis of Hayne J. I agree in his Honour’s reasons as they relate to the language and structure of the applicable Division of the Act. To those reasons I would add a number of reasons of my own.

  11. Having regard to Kirby J’s comments at [154], it would appear that, by majority, the High Court had determined that Div 4 of Pt 7 of the Act is to be given ambulatory operation rather than sequential. If that were otherwise, it would be necessary for the Tribunal to have complied with s.425(1) before having regard to s.425 (2).

  12. However, I accept the submissions of the First Respondent that it was not necessary to read the sections sequentially.

  13. As stated above, the Applicant returned the response to hearing indicating that he did not wish to attend a hearing and, as late as 4 May 2005, informed the Tribunal pursuant to its inquiry that he did not intend to attend a hearing.  It is particularly relevant that he was offered a rescheduled hearing some six weeks later that he declined.  In those circumstances, the overwhelming inference is that he consented to the Tribunal deciding the review without his appearing before it.

  14. In those circumstances, the fact that there has not been compliance with s.425(1) of the Act is not relevant where the applicant has consented to the Tribunal deciding the review without the applicant appearing before it.

  15. In the circumstances, s.425(2)(b) of the Act enabled the Tribunal to proceed with the review without the applicant appearing before it. Accordingly, this ground is not made out.

Ground 2

  1. This ground is a claim that the decision involved an error of law in that the decision involved an important exercise of the power conferred by the Migration Act and regulations.  It is not clear to me to what the ground refers, nor were any submissions made by the applicant in support of that ground.  It would appear to me that that ground may well be subsumed in the first ground, with which I have just dealt.  Otherwise this ground discloses no reviewable error and is rejected.

Ground 3

  1. This ground is that the decision involved an error of law in that there was no evidence or other materials to justify the making of the decision.  Again, this ground is unparticularised and the applicant made no submissions in support of it.

  2. The Tribunal in its decision identified with particularity the claims made by the applicant in his statement made in support of his protection visa application, that being the only material furnished by the Applicant.

  3. The Tribunal considered, to the extent it was able, the claims by the Applicant and identified those areas of concern that caused it not to be satisfied, in accordance with ss.36 and 65 of the Act, that the relevant criteria required were met by the Applicant. It can be no surprise to an applicant where he fails to appear before a Tribunal, in circumstances where he has been notified that his information and material is insufficient to satisfy the Tribunal, that the Tribunal is not satisfied that the criteria for a refugee have been made out. I refer to the relevant authorities in respect of that issue (NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]; S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [25-26]; WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 at [46]) The findings made by the Tribunal were otherwise open to it on the material before it. Accordingly, this ground is not made out.

  4. In the circumstances, the Tribunal’s decision is not affected by jurisdictional error, and pursuant to s.474 of the Act, the Tribunal’s decision is a privative clause decision.

  5. Accordingly, the application before this Court is dismissed with costs.

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

Deputy Associate:  Anna D’Addona

Date:  15 March 2006

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