SZHKM v Minister for Immigration
[2006] FMCA 835
•26 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHKM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 835 |
| MIGRATION – RRT decision – Chinese person claiming fear of persecution for political opinions – did not attend hearing – Tribunal references to prior information from visa application – whether a part of the reason for affirming the decision – breach of s.424A(1) not material – no jurisdictional error found. |
| Migration Act 1958 (Cth), ss.36, 424A, 424A(1), 424A(3)(b), 474, 483A Judiciary Act 1903 (Cth), s.39B |
| Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 125 SZDIL v Minister forImmigration [2006] FMCA 431 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZFHF v Minister for Immigration [2006] FMCA 257 VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 |
| Applicant: | SZHKM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3072 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 26 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the First Respondent: | Ms Mason |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed
The applicant must pay the first respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3072 of 2005
| SZHKM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) filed on 24 October 2005, which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 24 May 2004 and handed down on 18 June 2004. The Tribunal affirmed a decision of a Delegate made on 19 December 2003 which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 in the amending Act, and Acts Interpretation Act 1901 (Cth) s.8).
The Court's powers under s.483A are the same as those of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). They are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal's decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claims should be believed, nor whether he qualifies for a protection visa.
In the present case, there was a delay after the Tribunal delivered its decision in June 2004 and before the applicant commenced the present proceeding in October 2005, which occurred after he was taken into detention in Villawood. He has, in a brief document attached to his application, sought to explain why he did not commence proceedings earlier, but no detailed or sworn evidence of this has been provided by him. However, the delay was not explored in the course of the hearing before me, and since I consider that the application should be dismissed on substantive grounds, I have not found it necessary to consider the Court's discretion to refuse relief notwithstanding the existence of jurisdictional error.
The applicant arrived in Australia in July 2002, and his visa application was made on 4 December 2003. The application did not disclose who assisted him. It contained only briefly explained reasons for seeking protection in Australia so that he did not have to return to his country of nationality, The People's Republic of China. He said:
40. Why did you leave that country?
I will be kill in China because the Chinese Government was try to catch me, and kill me. In the China I believe Democracy. Chinese Government is a Communist so Chinese Government no agree people to believe it at this time. I was lucky not to be catched and killed, so I leave China. When I was in China police call me beaten me up and want to kill me.
41. What do you fear may happen to you if you go back to that country?
If I go back to China – the Government will catch me, put me in the jail forever and kill me.
42. Who do you think may harm/mistreat you if you go back?
Chinese Government will catch me. Police will do same thing as well and kill me.
43. Why do you think this will happen to you if you go back?
I know Chinese Government have strong mind. They just want Chinese people listen to them, follow their thinking. They no agree me, and try to catch me kill me.
44. Do you think the authorities of that country can and will protect you if you go back? If not, why not?
No. They will not protect me. Because they just belong to Chinese Government. If I go back they will catch me and kill me because I follow Democracy.
A Delegate refused the application on 19 December 2003, and the applicant lodged an application for review on 13 January 2004.
The review application was accompanied by a slightly longer statement which was, however, still lacking in significant details. It said:
Since becoming involved with the Falun Gong movement in China, I have been discriminated and unfair treatment from the authorities. Policemen and street leaders always come to my home, doing ‘brainwashing sessions’. I can’t go back to work, because the government asked me stay at home.
The other major reason for me to be a refugee is one of the Chinese policy – ‘One family, One child’. Because of that, I lost my father, my elder brother and my little niece. On (date in 2001) my older brother have a son with the age 10 years old, and my sister-in-law pregnanted for five months. We received a notice letter from the town government, they told us we breached the policy of ‘one family, one child’ that means my sister-in-law can’t have her second baby, but we think we didn’t breach the policy. According to this policy, the family can have their second baby after the first child are 6 years old. So we didn’t go to the hospital refer to their request. At that time, we didn’t aware that our nightmare was coming. At 11.00 pm at that day, up to 10 people come to our house, they dragged my sister-in-law into their car and beaten up the rest family members. My older brother had been sent to the hospital. After few days, when we heard that his baby has been killed in the hospital, he was so sad and then passed away. It was a great shock for him and our families. My father can’t endure this thing and passed away.
I was so disappointed about this country, no human right, nobody respect you. I have no money, no relationship with the government officer. It’s too hard to alive in this kind of country.
It appears that the application for review to the Tribunal was also accompanied by a photocopy of two pages of the applicant's Chinese passport. However, additional pages may also have been found by the Tribunal on the Department file. I note, in particular, that the pages containing exit stamps do not appear to have been given to the Tribunal, but are copied on the Department’s file.
The review application identified the applicant as living in a caravan park at Mildura, and having a post office box at Robinvale in Victoria. It authorised an agent at Glen Iris to receive mail and act on his behalf in the application. At no time did the applicant forward any additional material, or more details of his refugee claims to the Tribunal.
By letter dated 25 March 2004 the Tribunal informed the applicant:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter invited the applicant to attend a hearing in Melbourne on
24 May 2004, and told him that if he did not attend, the Tribunal might make a decision in his case without further notice. The letter was sent to the applicant's home and mailing addresses, and also to his agent. The copy to the caravan park was returned unopened, but, as I shall explain, the applicant admits that he received notice of the invitation. On 12 May 2004 a ‘response to hearing invitation’ was lodged with the Tribunal answering the question: "Do you want to come to a hearing?":
"No, I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
There is no evidence of any other communications to the Tribunal explaining why this response was made, and, in particular, that he might have faced any difficulties in coming to the appointed hearing. There is no evidence, indeed, of any other communication being made to the Tribunal by the applicant or his agent, before it handed down its decision.
In an unsworn written submission to the Court, the applicant referred to his seeking assistance from his agent, and said:
She then rang me ask me to attend a court appearance, but I failed to attend due to the reasons like could not catch the train, do not understand English, etc.
The applicant gave further explanations to me today. His statements were unsworn, but I consider that he honestly told me what had happened. He said that he could speak to his agent in Mandarin. Although he did not give a detailed picture of his conversation with her about the hearing invitation, there clearly was a discussion about whether he would attend the hearing, and I conclude that he probably told her that he would not attend due to problems of transportation, unfamiliarity with Melbourne, and other practical problems that he saw.
As I shall explain, I do not need to make findings as to the truth of his statements, and for that reason I did not suggest to him a need to give sworn evidence, and counsel for the Minister did not seek that I do so nor to cross-examine. This is because it is clear on everything he has told me that the Tribunal was under no notice of any matter which should have caused it to consider whether it was appropriate for it to take further steps to allow the applicant to attend a hearing. His statements confirm that, in fact, no communication was made to the Tribunal other than the “no” response to the invitation. In fact, it appears that the Tribunal waited until some time after the appointed hearing before it acted upon that response and announced its decision, thus allowing the applicant to change his mind.
I therefore am unable to find any jurisdictional error in relation to the procedures followed by the Tribunal, when deciding the matter without allowing the applicant further opportunity to attend a hearing.
The Tribunal's statement of reasons for affirming the Delegate's decision identified the written statements given by the applicant, firstly to the Department, and then in the review application. It set out his claims, and identified country information relevant to their consideration. It then, over four pages, gave reasons for affirming the Delegate's decision.
Those reasons were given before the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 emphasised the imperative nature of the Tribunal's duties under s.424A(1), and before the recent Full Court decision in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. SZEEU confirmed that the exclusion in s.424A(3)(b) did not to apply to information given by an applicant prior to his application for review, and it also took a rigorous view of the required analysis of the reasoning provided by the Tribunal to find whether the duty existed to give a written invitation for comment. I examined the effects of SZEEU in two recent reserved decisions, and it is not necessary for me to perform further analysis in this decision (see SZFHF v Minister for Immigration [2006] FMCA 257, and SZDIL v Minister forImmigration [2006] FMCA 431).
As to whether information taken by the Tribunal from earlier statements was “the reason or part of the reason for affirming the decision that is under review”, Allsop J said in SZEEU at [215]: “To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s.424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason". Weinberg agreed at [155]. The consequence is that if a Tribunal's refers to a piece of earlier information as “a reason”, then it cannot be brushed aside because it was only a "subsidiary and minor” reason only (c.f. Weinberg J at [158] and [164]). At [227] Allsop J referred to some information: “whilst it does not appear to play a central or integral role in the reasoning process displayed in the reasons, I conclude that it did play a part in the disbelief of the applicant, which was the or a reason for the decision”.
Upon these principles, it becomes necessary to analyse closely any references to “prior” information in a Tribunal's reasoning which is not covered by the exclusion in s.424A(3)(b). In the present case, the Tribunal made some such references. First, it made reference to the dates of the applicant’s exit from China and travel to Hong Kong shown in pages in the passport which I consider were found on the DIMIA file and not given to the Tribunal. Secondly, it referred to the date of the making of the application for protection visa; and thirdly, it referred to an answer "no" in the visa application in answer to the question: "Whether the applicant had any difficulty obtaining his passport?" and also a statement in that application that the applicant left the country legally. I shall set out below the passages where these references appear in the Tribunal's reasons.
Counsel for the Minister accepted that the Tribunal did refer to prior information, and I understood her to accept the analysis of SZEEU which I have given above. However, she relied on reasoning in SZEEU by Allsop J [233], which followed an earlier decision of North J in VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33]. This accepts that failure to serve a s.424A notice in relation to a piece of information will not give rise to invalidity of the Tribunal's ultimate decision:
If it can be shown that there was a basis for the Tribunal's decision which can be seen to be entirely independent of the failure to follow section 424A.
Counsel for the Minister submitted that a proper reading of the Tribunal's reasoning in the present case showed an independently operating stream of reasoning provided by the Tribunal in support of its decision that it was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.
She submitted that the first reason given by the Tribunal followed the usual reasoning found in cases where a Tribunal has inadequate information from a visa application applicant, due to his failure to attend a hearing. It then affirms the delegate’s decision, not by reason of any information in the visa application, but because it has been left in a state of uncertainty about critical facts and is unable to achieve the positive state of satisfaction required by s.36 of the Migration Act (c.f. SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 125 at [15] to [16], NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] to [5], and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17]).
In my opinion this is a correct analysis that emerges clearly from all of the present Tribunal's reasoning until the last page. In particular, I accept that it provides a proper understanding of the Tribunal's reference to the applicant's delay in lodging a visa, and to some details taken from his passport, in the following passage:
Whilst the applicant claims that he will be at risk if he returns to China he does not provide full details of his Falun Gong activities in both China and Australia. Had the applicant attended the hearing, the Tribunal would have asked him about his Falun Gong beliefs and his fear of persecution upon return to China. The Tribunal would have asked for details of his role in the Falun Gong in China. The Tribunal would have asked him about his fears. The Tribunal would have asked him about his Falun Gong activities in Australia. It would have asked him about when, how often and for what reason policemen and street leaders came to his home. It would have asked what they did when they came to his home and how often and the reason brain washing techniques were used. It would have asked him about his comment that he was lucky to escape China having left China on a legally issued passport in his own name, issued in (place), China on (date). The Tribunal would have asked him about the fact that he travelled to Hong Kong in (month) 2001 and returned to China (PRC) seemingly without hindrance. He initially arrived in Australia in 2002. It would have asked him about the delay in lodging the protection visa application by about 17 months.
The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered.
In my opinion the Tribunal's references to “prior” information in this passage shows that the information would have caused the Tribunal to ask questions of the applicant going to those matters if he had attended a hearing. However, the reason for affirming the delegate’s decision which is explained in these paragraphs, and surrounding paragraphs, was his absence from the hearing, the Tribunal's inability to ask for explanations, and the absence of explanations from the applicant. In my opinion, the reasoning in these paragraphs relies upon the applicant’s absence from the hearing, and its reference to prior information does not show it relevantly using prior information as “part of” a reason for affirming the delegate’s decision.
The Tribunal provided similar reasoning in relation to its inability to be satisfied as to matters, including the applicant's claimed pro-democracy activities, how he left the country, and his role and degree of involvement in Falun Gong and other matters. This reasoning can be seen to follow through into the first four paragraphs of the reasoning, which leads to the Tribunal's final conclusion:
Based on the written evidence before it, the Tribunal cannot be satisfied that the applicant is a Falun Gong practitioner. There is no evidence that he was a leader. The applicant himself does not suggest this.
The Tribunal had no evidence before it and therefore does not accept that the applicant expressed his alleged pro-democracy beliefs in China or Australia in such a way as to bring him to the attention of the authorities.
It therefore follows that the Tribunal does not accept that he was not allowed to return to work because of either his alleged pro-democracy ideas or alleged practise of Falun Gong.
There is no evidence from the applicant about the effect of the one child policy on him personally. He did not disclose that he has any children on his protection visa application.
On the evidence before it the Tribunal finds that the applicant did not have any incidents with the Chinese authorities (policemen and street leaders), had a legal passport in his own name and was able to leave China legally on (date) 2002. Further in the protection visa application he answered “no” to the question whether he had any difficulty obtaining his passport and also stated that he left the country legally. (emphasis added)
The Tribunal had no evidence before it about the applicant’s activities in Australia and insufficient evidence to find that the applicant was a Falun Gong practitioner. The Tribunal cannot be satisfied that the applicant has in the past and will express in the future his beliefs in such a way as to attract persecutory treatment. The Tribunal finds that the applicant is not a person who is of adverse interest to the Chinese authorities and does not accept that he faces a real chance of being persecuted now or in the reasonable foreseeable future if he returns to China in relation to his claimed involvement in Falun Gong, his alleged pro-democracy views or for any Convention reason.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.
It can be seen from the first four paragraphs that the absence of further evidence and explanations from the applicant led the Tribunal to frame opinions in terms of non-acceptance of the critical express or implicit elements in the applicant's claims to be a refugee. That reasoning, as I have explained, does not in my opinion involve the use of prior information in a manner requiring a s.424A notice. I also consider that, that reasoning was intended by the Tribunal to inform and support its ultimate conclusion given in the last two paragraphs of the passage extracted above.
This leaves for consideration the paragraph to which I have given emphasis. Although it is not clear how these findings were intended by the Tribunal to relate to its other reasoning, they do show the Tribunal making a positive finding "on the evidence before it" that the applicant was not of interest to Chinese authorities when he left China. As I read that finding it is based on two pieces of information: first, that he "had a legal passport in his own name and was able to leave China legally", and, secondly, the two answers to the questions in the protection visa application to which the Tribunal referred.
I consider that this passport information probably was taken from copies of the passport found on the DIMIA file and not the copy sent to the Tribunal, although this is not clear. Certainly the information about the responses on the protection visa application was “prior” information taken from material given to the Department and not to the Tribunal. It was not contested by the Minister that the Tribunal did not serve a s.424A(1) notice in relation to its use of that information before making its finding of fact found in the emphasised passage.
The issue for me, therefore, is whether that finding of fact represents a link in a continuous process of reasoning leading to the last paragraph, so as to amount to “a part of” a single chain of reasoning given by the Tribunal, or whether, as counsel for the Minister submits, it is in itself an "entirely independent" basis for its decision to affirm the delegate’s decision.
I did not find this an easy matter to decide. However, I have been persuaded by the submission of counsel for the Minister. In my opinion, the previous conclusions of the Tribunal based on the absence of explanations and sufficient evidence to satisfy the Tribunal as to essential elements in the applicant’s refugee claims can properly be seen to be a separate and distinct reason by the Tribunal for affirming the delegate's decision. I consider that the Tribunal’s positive adverse finding based on the content of the passport and the answers to the two questions on the visa application was given by it as a separate reason, and can properly be treated as arrived at independently of the other reasoning, and as being provided as independent reason for the ultimate conclusion.
I therefore accept the submissions of counsel for the Minister that the Tribunal's ultimate conclusion was unaffected by any breach of s.424A in relation to prior information referred to by the Tribunal in its reasons.
The applicant did not raise any question as to the effect of s.424A and, understandably, was not able to contribute to my consideration of this issue. However, I have endeavoured to consider all of the arguments that could have been presented on his behalf.
The applicant's application to this Court had as its grounds general contentions that the Tribunal "failed to take relevant considerations to exercise its power" into account, "made a number of errors to decide the case", "refused to accept that the applicant has a well-founded fear of persecution on Convention reasons", and "didn't consider the application properly".
To the extent that these might be capable of giving rise to jurisdictional errors, there are no particulars provided, and for myself I have been unable to identify support for such errors except as I have discussed above.
The applicant was given directions to file an amended application and evidence and a written submission, but did not do this. He has been referred to an adviser under the free scheme. A three-page document which I have referred to above which he filed on 10 May 2006, headed "Submissions" essentially contains a further description of the applicant's history in China, which he would like to have considered in support of his claim to be a refugee. Significant parts of this statement were never put to the Tribunal, and the applicant frankly concedes to me that what he wants is another chance to put his history to the Tribunal more fully. However, as I have explained to him, I cannot give him that opportunity unless I can find jurisdictional error in the procedures or reasoning of the Tribunal upon the material which in fact he presented to the Department and to the Tribunal.
For the reasons which I have explained above, I have not been able to find such error, and this means that the Tribunal's decisions is a privative clause decision under s.474 of the Migration Act, and I do not have power to send his case back for a further hearing by the Tribunal.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 9 June 2006