SZHMA v Minister for Immigration
[2007] FMCA 370
•22 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHMA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 370 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1), 91X, 422B, 425, 425A, 426, 426A, 427, 483A |
| Minister for Immigration v Lay Lat [2006] FCAFC 61 Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 S58 of 2003 v Minister for Immigration [2004] FCAFC 283 SZBCS v Minister for Immigration [2005] FCA 1457 SZCIJ v Minister for Immigration [2006] FCAFC 62 SZECI v Minister for Immigration [2005] FCA 1201 SZEZI v Minister for Immigration [2005] FCA 1195 VAF v Minister for Immigration (2004) 206 ALR 471 WACO v Minister for Immigration [2003] FCAFC 171 WAGJ v Minister for Immigration [2002] FCAFC 277 |
| Applicant: | SZHMA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3136 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 12 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Ms J Pownall |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application 27 October 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3136 of 2005
| SZHMA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 27 October 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 10 November 2003 and handed down on 28 November 2003, affirming a decision of the delegate of the first respondent made on 20 December 2002, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZHMA”.
A Court Book ("CB") prepared by the respondents' solicitors was filed in these proceedings on 7 February 2006. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of Dr Alan Moller, reference V03/15113, provides the following background information. The applicant, who claims to be a citizen of the People’s Republic of China (“the PRC”), arrived in Australia on 18 October 2002. On 4 November 2002, she lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 20 December 2002, a delegate of the Minister refused to grant a protection visa and on 14 January 2003 the applicant applied to the Tribunal for review of the delegate’s decision.(CB 71)
The applicant is an unemployed person from Liaoning Province. In her protection visa application prepared with the assistance of an adviser, the applicant claims to fear persecution because she was a Falun Gong follower who faces gaol and possible torture if she returns to the PRC. She claims she would not be able to obtain employment and would be harassed and discriminated against in all walks of life. The applicant also claims that she was dismissed from work in a steel factory in 1993. She started to learn Falun Gong in late 1998 through a neighbour. The applicant claims the Chinese government arrested all Falun Gong followers and put them in prison.(CB 73)
The applicant claims the Chinese Government defines Falun Gong followers as counter socialists and against the Communist Party and has a policy of constant repression of its activities. The applicant believed it was necessary to stand up and tell the truth and that the government did not like her doing so. She is certain she would be taken into custody, pronounced insane and isolated from her family and relatives if she returns to China. She claims firm belief in Falun Gong and will never give up her beliefs.(CB 74)
Tribunal’s Findings and Reasons
A summary of the Tribunal's reasons is contained in the respondent's written submissions prepared by Ms Pownall and I adopt paragraphs 12 to 15 of those submissions:
12. The tribunal accepted that the applicant is a citizen of the PRC and assessed her claim against China. The tribunal noted that the applicant did not accept the invitation to attend a hearing. The tribunal noted that if the applicant had attended the hearing the tribunal would have wished to question her in detail regarding the claim she made.
13. The tribunal noted it would also have wished to examine whether the applicant was a devoted follower of Falun Gong who understood its principles and practice, any involvement by her in political or other activities which may have aroused official interest in her. The tribunal would have wished to discuss with her the substance of information in country reports on Chinese authorities, treatment of Falun Gong practitioners and, in particular, its tendency to target leaders, organisers and persons with some degree of influence or recognition, rather than individual members who are not hard core members propagating Falun Gong. The tribunal would have also wished to discuss the circumstances under which the applicant was able to leave China when country information suggests people of adverse interest to the PRC are unable to do so.
14. Lacking the opportunity to examine the applicant's claim the tribunal was not satisfied on the evidence that the applicant was a Falun Gong practitioner in the past or will be in the future. Nor was the tribunal satisfied the applicant criticised the government in the past or had experienced the harm claimed.
15. The tribunal was not satisfied that the applicant will face a real chance of persecution in the foreseeable future if she returns to China because of her alleged practice of Falun Gong or any other convention reason.
Application for Review of the Tribunal’s Decision
On 27 October 2005 the applicant filed an application for review in this Court under s.39B of the Judiciary Act setting out the following grounds:
1. The applicant seeks relief under s.39 of the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) on the ground that the tribunal: The applicant is citizen of China. If the applicant is deported from Australia they will be at risk of suffering persecution within the meaning of the 1951 convention relating to the status of refugees and the 1967 protocol related to the status of refugees.
2. The second respondent committed serious jurisdictional error by failing to notify the applicant of the hearing and proceeding to deal with the matter in the absence of the applicant.
3.The second respondent committed jurisdictional error by failing to comply with compulsory requirements of s.424A of the Migration Act with regard to country information used by the second respondent.
4. The tribunal decision involved jurisdictional error affecting the decision which is subject of this application in that:
a) It asked itself the wrong question and applied the wrong test.
Particulars
i)The tribunal misinformed itself of the particular circumstance of the applicant and incorrectly applied the test;
ii) The tribunal had failed to ask appropriate questions and appropriately categorise the basis of the applicant's suffered convention base persecution.
5.The making of the decision of the tribunal was an improper exercise of the power inferred by the Migration Act:
a) The respondents took the following irrelevant considerations into account in the exercise of the power:
i) The general country information without consideration of the facts of the case.
b) The respondent failed to take into account the following relevant considerations into account in the exercise of the power:
i) To independently investigate the applicant's particular situation due to religious activities.
6.The tribunal decision is such that no reasonable person would have arrived at the conclusions reached by the tribunal and is in breach of the Wednesbury reasonableness.
7.The tribunal breached the rules of natural justice and/or procedural fairness in connection with the making of the decision.
Particulars
a) The applicant was not given opportunity to comment on the information forming the basis of the tribunal's decision;
b) The tribunal proceeded to make the decision without giving the applicant the opportunity to be heard.
These pleadings were prepared by Ren Zhou Lawyers. However, that firm withdrew as solicitors for the applicant on 13 April 2006.
Notice of Objection to Competency
On 21 November 2005, the first respondent filed a Notice of Objection to Competency which stated:
1)The first respondent objects to the jurisdiction of this Court to try this application on the grounds that:
a)The decision is a privative clause decision;
b) Contrary to s. 477(1A) of the Migration Act 1958 (Cth) ("the Act"), the application has not been lodged within 28 days of the applicant being notified of the decision of the Refugee Review Tribunal; and
c)By virtue of s.477(2) of the Act, the Court must not make an order allowing, or which has the effect of allowing, the applicant to lodge an application outside the period specified in s.477(1A).
Submissions and Reasons
The applicant is a self-represented litigant and appeared with the assistance of a Mandarin interpreter. The applicant was previously represented by a solicitor who subsequently withdrew from the proceedings. The applicant confirmed that her previous solicitor had provided her with a copy of the orders made at first directions, and she understood that the solicitor had filed all necessary documents in respect of her application. This, in fact, was limited to the original application seeking judicial review. The orders that the applicant file and serve any additional affidavit material relied upon during the hearing, and written submissions, were not complied with. When the applicant was invited to make oral submissions, it was apparent that she had no comprehension of the purpose of the Court hearing, what was being determined, or the nature of submissions to be made. This was confirmed by the applicant asking the Court "What do you want me to say?".
Ms Pownall indicated that she would rely on her written submissions filed in these proceedings. In them, she contends that the relevant statutory criteria requires that at the time of the decision, the Minister or the Tribunal must be satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention.
Ms Pownall submits that the claim that the Tribunal applied the wrong test and asked the wrong question is without foundation. The Tribunal considered the Refugees Convention in its decision and understood and applied the correct test when considering the applicant's claims.(CB 71-73) In particular, the Tribunal noted that the mere fact that a person claims fear of persecution for a Convention reason does not establish the genuineness of the asserted fear or that it was well-founded. It is for the applicant to persuade the Tribunal that all of the statutory elements are made out.(CB 78) Ms Pownall submits it is clear that the Tribunal considered all of the claims made by the applicant but did not reach the requisite state of satisfaction to make a decision in her favour. The findings of the Tribunal were clearly open to it on the evidence before it and that there is no error of law in the Tribunal's approach.
Ms Pownall further submits that in relation to the asserted breaches of ss.425, 425A and 426A of the Act, the applicant was put on notice that the Tribunal was unable to make a decision in her favour on the information provided and she was invited to a hearing in accordance with s.425. The applicant did not attend the hearing and the Tribunal made a decision in her absence, which it was entitled to do: s.426A(1). In those circumstances, the applicant cannot complain if her application was rejected because, amongst other reasons, she failed to take up the opportunity to appear: S58 of 2003 v Minister for Immigration [2004] FCAFC 283 at [25]-[26]; WACO v Minister for Immigration [2003] FCAFC 171. The Tribunal's approach has been endorsed in the Full Court in Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 and does not disclose any error (also see authorities listed in VSAF of 2003 at [17]).
Ms Pownall submits that the Tribunal decision came to an evaluative conclusion founded on what it perceived as inadequate information, and an absence of detail and explanations: SZEZI v Minister for Immigration [2005] FCA 1195 per Allsop J. The applicant failed to supplement the information by not attending the hearing.
The applicant's Tribunal application filed on 14 January 2003 gives two addresses in Victoria. One is the home address of the applicant and the other a mailing address. The mailing address is also the address of a person acting as her authorised recipient, and the application form was duly signed by that recipient. The recipient was also authorised to act on the applicant’s behalf in relation to her Tribunal application. On 15 January 2003, the Tribunal sent a registered letter to both the applicant and to her authorised recipient at her mailing address. That letter acknowledged receipt of the application filed on 14 January 2003.(CB 59-60) A second registered letter was similarly sent on 11 September 2003, stating that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in the applicant's favour on that information alone. The letter also invited the applicant to attend a hearing of the Tribunal on 3 November 2003.(CB 61-62) A copy of the second letter was returned to the Tribunal with a note that there was no known person of that name at that address.(CB 63-65) An internal memorandum of the Tribunal dated 13 October 2003 indicates that a staff member had contacted the applicant's authorised recipient to find out if the applicant wished to attend the hearing. However, the authorised recipient said that he could not contact the applicant and did not think that “they will be attending the hearing”.(CB 66)
Ms Pownall submits that s.424A has no application in relation to an alleged failure to invite comment. Further that the Tribunal decision was in terms of lack of satisfaction. The absence of specific or persuasive information could be said to be the reason for its decision: SZECI v Minister for Immigration [2005] FCA 1201 at [24] per Allsop J. The lack of information does not amount to "information" for the purposes of s.424A(1): SZBCS v Minister for Immigration [2005] FCA 1457 at [33] per Bennett J; VAF v Minister for Immigration (2004) 206 ALR 471. The applicant's claim that the Tribunal failed to invite comment under s.424A with regard to country information cannot succeed as this information falls within the exception in s.424A(3)(a). In any event, the Tribunal did not ultimately rely upon independent country information as a reason or part of the reasons for affirming the decision under review.
Ms Pownall submits that the applicant claims the Tribunal took into account irrelevant considerations by considering independent material without considering the facts of the applicant's claim. The country information referred to by the Tribunal in its decision was clearly relevant to the applicant's claim.(CB 75-77) As stated above, the Tribunal did not ultimately rely upon the independent country information as a reason or part of the reasons for affirming the decision under review.
In relation to the applicant's claim that the Tribunal failed to investigate the applicant's particular situation, Ms Pownall submits that although the Tribunal can initiate inquiries under s.427 of the Act, it is not under any duty to exercise that power. The failure to make inquiries, or to consider whether to do so, is not in itself an error of law or an error going to jurisdiction: WAGJ v Minister for Immigration [2002] FCAFC 277 at [24]-[25]; Minister for Immigration v SGLB (2004) 207 ALR 12 per Gummow and Heydon JJ at [42]-[43] (with Gleeson CJ agreeing).
It is submitted that the applicant's claim of Wednesbury unreasonableness merely seeks to engage in merits review which is impermissible in this Court.
Ms Pownall submits s.422B requires that Div.4 of Part 4 of the Act is taken to be an exhaustive statement of procedural fairness requirements: Minister for Immigration v Lay Lat [2006] FCAFC 61. Its effect is to exclude all common law rules of procedural fairness: Minister for Immigration v Lay Lat; SZCIJ v Minister for Immigration [2006] FCAFC 62.
The applicant declined to respond to the issues raised in the first respondent’s submissions. She indicated to the Court that she had received the written submissions but did not understand them. The applicant made some limited statements about returning to the PRC should she be refused a protection visa.
The Tribunal's reasons, which are brief, indicates that after examining the material, it wished to discuss with the applicant details of her devotion to Falun Gong and her understandings of the principles, tenants and exercises involved in the philosophy. Despite an invitation being extended to the applicant to attend a hearing and ventilate these matters with the Tribunal the applicant failed to appear. This lack of opportunity to examine the applicant's claims in more detail left the Tribunal in a situation where it could not be satisfied that she faced a real chance of persecution in the foreseeable future if she returned to the PRC because of her alleged practice of Falun Gong or for any other Convention reason.
Conclusion
The applicant appeared at the Court hearing as a self-represented litigant with the assistance of a Mandarin interpreter. She was originally represented by a solicitor who prepared the initial application but who has since withdrawn. The applicant clearly had no understanding of the issues before the Court or how she may present her case. This places an obligation on this Court to independently consider whether any argument based on the material, that is, the Court Book and in particular the Tribunal decision, can support a claim of jurisdictional error. Ms Pownall, appearing for the respondents, assisted the Court with written submissions in response to the application filed on behalf of the applicant. Ms Pownall brought the Court's attention to the letter sent by the Tribunal inviting the applicant to attend its hearing. The applicant did not provide any information as to why she did not attend that hearing. I am satisfied that all the issues identified in the application have been satisfactorily addressed by the first respondent’s submissions. It is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently the applicant's claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 21 March 2007
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