SZHCG2 v Minister for Immigration
[2006] FMCA 1594
•19 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHCG2 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1594 |
| MIGRATION – Review of decision by Refugee Review Tribunal – Refugee Review Tribunal sent invitation to hearing to applicant – applicant failed to attend hearing before Refugee Review Tribunal – whether Refugee Review Tribunal failed to comply with rules of procedural fairness – whether Refugee Review Tribunal failed to comply with s.420 Migration Act 1958 (Cth) – whether Refugee Review Tribunal was biased. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36; 65; 420; 422B; 425; 425A; 426A; 474; pt.8 div.2 |
| Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 Abebe v The Commonwealth (1999) 197 CLR 510 Minister for Immigration and Multicultural and Indigenous Affairs v SZGLB (2004) 207 ALR 12 VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZHCG2 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2075 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 19 October 2006 |
| Date of last submission: | 19 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr J. Mitchell |
| Solicitors for the Respondent: | Ms S. Goodman, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2075 of 2006
| SZHCG2 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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
9 June 2006.
The applicant was born on 1 September 1959 and claims to be from the People’s Republic of China (“the PRC”).
The applicant arrived in Australia on 12 December 2004 on a passport issued in his own name and a short stay business visa issued on
25 November 2004.
On 12 January 2005, the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.
In his protection visa application, the applicant claimed that he feared persecution by the Chinese authorities because he was the editor-in-chief of a magazine called “Conversation,” which published articles on the corruption of the Chinese government and other sensitive information that contradicted Chinese government policies. The applicant claimed that, in November 2004, the Political Security Division of the Local Public Security Bureau confiscated the current month’s subscription of the magazine from the applicant’s office and arrested two of the magazine writers.
On 8 April 2005, a delegate of the first respondent (“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 (“the Convention”).
On 10 May 2005, the applicant lodged an application for review of the Delegate’s decision by an earlier constituted Refugee Review Tribunal. On 19 July 2005, the earlier constituted Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa and on 17 February 2006, by consent, Smith FM made orders setting aside the earlier constituted Refugee Review Tribunal’s decision and remitting the matter to a second differently constituted Refugee Review Tribunal (“the Tribunal”) for determination according to law.
On 20 March 2006, the Tribunal wrote to the applicant at his identified address for service inviting him to attend a hearing of the Tribunal to give oral evidence and present arguments on 21 April 2006. The letter was sent to the applicant’s authorised recipient, as identified on the application for review received by the Refugee Review Tribunal on
10 May 2005. The letter notified 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 that information alone.
The letter contained a ‘Response to Hearing Invitation’ form and requested the applicant to complete such a form by 5 April 2006.
On 27 March 2006, the applicant filed a change of address details.
On 30 March 2006, the Tribunal wrote to the applicant at the mailing address notified on the change of details form, again informing 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 that information alone.
The letter went on to invite the applicant to attend a hearing on 16 May 2006 and to give oral evidence and present arguments in support of his claims. The letter informed the applicant that the Tribunal would only change this hearing date for good reason and that, if the applicant thought he may be unable to attend the hearing, he should contact the Tribunal immediately and, if he did not attend the hearing and the Tribunal did not postpone the hearing, the Tribunal could make a decision on his case without further notice. The letter enclosed a ‘Response to Hearing Invitation’ form and requested the applicant to complete it. The applicant was also requested to send any new documents or written arguments that he wished the Tribunal to consider.
In its decision, the Tribunal refers to the letter of 30 March 2006 and noted that no response was received by the Tribunal to that invitation, nor was the letter returned unopened to the Tribunal. The Tribunal noted that on 1 May 2006, it telephoned the applicant who confirmed that he had received the invitation and that he would be attending the hearing. The Tribunal noted that it asked the applicant to complete and return to the Tribunal a ‘Response to Hearing Invitation’ form and noted the applicant’s response that he would either fax or post the document to the Tribunal.
The Tribunal noted that the applicant did not appear before the Tribunal on the day and at the time at which he was scheduled to appear.
In the circumstances, the letter of 30 March 2006 was a letter sent in compliance with ss.425 and 425A of the Act. Whilst there is no evidence from the first respondent before me as to the date of mailing of that letter, there is no contention from the applicant that there was a failure in any way to comply with the statutory code. Further, the Tribunal decision makes it plain that the applicant indeed received the invitation, and the applicant has not asserted otherwise before this Court.
The Tribunal, having noted that the applicant did not appear before it on the day and at the time at which he was scheduled to appear and in the circumstances, pursuant to the discretion afforded to the Tribunal in s.426A of the Act, the Tribunal decided to proceed with its review in the absence of the applicant without taking any further action to enable the applicant to appear before it. That course of action was plainly open to the Tribunal under the legislative regime and it is clear that the Tribunal understood that it proceeded with its review having exercised its discretion under s.426A of the Act to do so.
The Tribunal went on to consider the applicant’s claims and noted that there was nothing to support the applicant’s claims other than unsubstantiated assertions. The Tribunal noted with particularity the difficulties it had with the insufficient particulars provided by the applicant and concluded that because the Tribunal had been unable to explore the detail of the applicant’s claims or their truthfulness, the Tribunal was unable to be satisfied that the applicant’s claims were true.
The Tribunal found that it was not satisfied that the applicant was a political activist, that he established and issued a monthly magazine called “Conversation” or that police raided the university confiscating magazines and arrested two writers. The Tribunal was not satisfied that, on the evidence before it, the applicant faced a real chance of persecution, should he return to the PRC now or in the foreseeable future. For those reasons, the Tribunal affirmed the decision under review.
On 28 July 2006, the applicant filed his initiating process in this Court seeking judicial review of that decision. In accordance with directions made by the Court on 14 September 2006, the applicant filed an amended application on 27 September 2006 in the following terms:
“1. There is jurisdictional error for the purposes of s 75(v) of the Constitution when RRT reviewing (sic) my case. RRT breached the rules of procedural fairness.
2. Migration Act 1958 (s 420) requires the Tribunal to do substantial justice, deciding on each case on its merits and avoiding technicalities.
3. I found that the RRT decision does contain some bias as alleged by the fact. Further, there are obligations on the RRT, in this particular matter, to refer to resources about China and its democratic system.
Furthermore:
I am un-present (sic). I request to join the Legal Advice Scheme, but I did not receive letter regarding my legal advice. Due to my ability limitation, I think it is unfair to request me to giving complete particulars of each ground of review within two weeks time.
Conclusion:
I submit that as there is jurisdictional error for denial of procedural fairness and natural justice regarding of the RRT decision, the defendant should review the cases and adjust the decision previously.”
The applicant, despite being invited, made no submissions in support of any of the grounds of his application. The grounds were identified to him individually and he was invited in respect of each ground to make submissions. He declined in respect of each ground. I do note that the applicant was unrepresented before me this afternoon, although had the assistance of an interpreter.
Ground 1 alleges that the Tribunal breached the rules of procedural fairness. There are no particulars of this ground.
In relation to Ground 1, this is a matter to which s.422B of the Act applies. Section.422B is an exhaustive statement of the rules of natural justice and has been held to be the complete procedural code upon which the Tribunal’s review operates (Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61 at [60] – [70]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7]).
At the conclusion of the first respondent’s submissions, the applicant stated that he had not had enough time to provide details or evidence that would have supported his claims before the Tribunal. When asked what that evidence may be, the applicant responded that there were certificates to show where he worked. However, the applicant has had since January 2005, when he lodged his application for a protection visa, to obtain such evidence or to put on evidence of the nature of documents that he would seek to provide, the attempts by him to provide such documents and the reasons why he was not able to obtain them.
There is no evidence before this Court that such evidence was before the Tribunal. In the circumstances, in the light of s.422B of the Act and the Tribunal’s compliance with the statutory code, there is no denial of procedural fairness by the Tribunal.
Accordingly, Ground 1 is not made out.
Ground 2 purports to be a complaint of a failure by the Tribunal to comply with its obligations under s.420 of the Act in failing to act according to substantial justice and the merits of the case. I do not understand a breach of s.420 of the Act to be capable of amounting to jurisdictional error. However, even if it were, in the circumstances of this case where the Tribunal has complied with its statutory obligations in inviting the applicant to attend a hearing, the decision by the Tribunal to proceed, in accordance with s.426A of the Act, with its review without taking any further steps to invite the applicant to appear before it, cannot amount to a breach of s.420 of the Act.
Moreover, the Tribunal identified and considered the applicant’s claims and provided reasons for its lack of satisfaction of the applicant’s claims. Plainly, s.65 and s.36 of the Act require the Tribunal to be satisfied that the criteria for being a refugee are met, and if the Tribunal is not so satisfied, then, the Tribunal, as the relevant decision maker, must refuse a protection visa.
Accordingly, Ground 2 is rejected.
Ground 3 of the applicant’s amended application is a claim that the Tribunal was biased because it did not refer to independent country information about the PRC in its decision. In circumstances where the Tribunal was simply not satisfied of the applicant’s claims, there was no obligation on the Tribunal to have regard to independent country information. In any event, there is no duty on the Tribunal to make inquiries to substantiate the applicant’s claims (Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Minister for Immigration and Multicultural and Indigenous Affairs v SZGLB (2004) 207 ALR 12 at [1], [42] and [43]).
If Ground 3 is intended to be an allegation of bias other than as I have understood it to be, there are no particulars to support such a contention. Such particulars are plainly required. There is nothing on the face of the decision to suggest that the Tribunal had a pre-existing state of mind that was not open to persuasion, nor is there any evidence on the face of the Tribunal decision, or its review process, to suggest that a fair-minded lay observer, properly informed, might reasonably apprehend that the Tribunal had not brought an impartial mind to its review.
The first respondent submitted that no inference of bias or prejudgment can be drawn from the mere fact of adverse findings by the Tribunal reasons and referred the Court in particular to VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668. I accept the first respondent’s submission as correct.
In the circumstances, Ground 3 is not made out.
There is no other error apparent from the decision of the Tribunal.
In the circumstances, the Tribunal’s decision is a privative clause decision and, according to s.474 of the Act, this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 27 October 2006
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