SZHNF v Minister for Immigration

[2006] FMCA 1418

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHNF v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1418

MIGRATION – Refugee – Falun Gong – applicant did not attend Tribunal hearing – application dismissed.

Migration Act 1958, ss.36(2), 65, 424A, 424A(1), 424A(3)(b), 425A, 426, 426A.

Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZHNF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3238 of 2005

Judgment of: Nicholls FM

Hearing date: 15 September 2006

Date of Last Submission: 7 September 2006

Delivered at: Sydney

Delivered on: 15 September 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms. E. Palmer

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the Minister for Immigration and Multicultural Affairs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3238 of 2005

SZHNF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised; Ex tempore)

1. This is an application filed in this Court on 7 November 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 September 2005 and handed down on 6 October 2005 to affirm the decision of a delegate of the first respondent Minister to refuse a protection visa to the applicant.

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 25 February 2005. He lodged an application for protection visa on 17 March 2005 with the first respondent's Department. On 28 April 2005 a delegate of the respondent Minister refused to a grant a protection visa to the applicant and on 1 June 2005 he applied for review of that decision. The applicant’s claims are reproduced in his application for a protection visa at Court Book (“CB”) 1 to CB 23, and in particular in a statement at CB 24 to CB 25. The application to the Tribunal is reproduced at CB 41 to CB 44. The applicant repeats his claims in a statement submitted to the Tribunal with his application for review (reproduced at CB 45). Other than the reference to the delegate's decision and what is contained in the last paragraph, this statement is identical to what was given to the Minister's Department. The applicant’s claims centre around his leadership of a Falun Gong organisation in Henan Province in China. He claimed to have been detained for almost a year and tortured. His claims were repeated in his application to the Tribunal.

3. The applicant applied for review to the Tribunal on 1 June 2005. Although the applicant provided his residential address in his application for review, he specified (at CB 43) that he wanted correspondence sent to his mailing address. The applicant did not provide any contact telephone or facsimile numbers in his application for review.

4. On receipt of the application for review, the Tribunal wrote to the applicant at his address for service, his mailing address, by a letter dated 2 June 2005 (reproduced at CB 46 to CB 47). The letter notified the applicant of the process by which the Tribunal was to conduct the review.  Relevantly, it stated the importance of the hearing in the process and the opportunities that were available to the applicant to provide further claims and details in support of his case. 

5. The Tribunal wrote to the applicant by letter dated 11 August 2005 (reproduced at CB 48 to CB 49) sent to his mailing address (his address for service). The Tribunal advised that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing that had been scheduled for 16 September 2005. A time and place was given for the hearing and the Tribunal provided clear notification that if the applicant did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on the case without further notice. No response was received. The letter of invitation was not returned as undeliverable. Some two weeks prior to the date schedule for the hearing, a Tribunal employee conducted a check to confirm that a letter of invitation had been sent to the correct address (“No Reply to Hearing Invitation” checklist of 2 September 2005 (CB 50)).

6. The applicant did not appear before the Tribunal on the day of the hearing and the material before the Court now does not reveal any other contact with the Tribunal by the applicant. In these circumstances and pursuant to s.426A of the Act the Tribunal proceeded to determine the matter on the evidence available to it without taking any further action to enable the applicant to appear before it.

7. The Tribunal's “Findings and Reasons” are set out at CB 62.3 to CB 63.3. The Tribunal noted that the applicant had been put on notice that it would not be able to make a favourable decision on the information before it, and that the applicant had not provided any further information in support of his application despite ample opportunity to do so. Nor had the applicant given the Tribunal the opportunity to explore aspects of his claims with him. In these circumstances, the Tribunal found that it could not be satisfied that the applicant had been persecuted in the past, or that there was a real chance that the applicant would suffer harm amounting to persecution in the future, should he return to China.

8. The applicant’s application filed in this Court on 7 November 2005 asserts two grounds:

   “1. A decision that I meet the refugee criteria.

   2. I am a real Falun Gong practitioner, and I was tortured by my original government.”

   The applicant also claims that there was no evidence or other material to justify the making of the decision by the Tribunal.

9. The first Court date in this matter was before FM Lloyd-Jones on
   7 December 2005. The applicant, at that time, indicated that he wanted to access the Court's legal advice scheme and a lawyer on the panel of that scheme was assigned for the purpose of providing legal advice to the applicant. Subsequently the matter was adjourned for directions on 18 May 2006 at which time the applicant's matter was listed for a show cause and final hearing on 15 September 2006. At a further directions hearing on 28 August 2006, the matter was confirmed as proceeding to a final hearing today. On all three occasions the applicant attended in person and was assisted by an interpreter in the Mandarin language. 

10. I note that pursuant to order 3 (made on 7 December 2005) the applicant filed an amended application on 4 April 2006. This application contained one ground with three stated particulars, which reads as follows:

    “The Tribunal made the finding which is biased.

    Particulars

    (a)The tribunal based its findings on the information, or lack of information contained in the Applicant’s for a visa.

    (b)The tribunal not satisfied that I am a Falun Gong practitioner, but actually I am a practitioner.

    (c)I did not attended the hearing because I missed the date for the hearing.”

11. The applicant appeared today before me and was unrepresented. He was assisted by an interpreter in the Mandarin language.  Ms. Palmer appeared for the respondent. At the hearing before me when given the opportunity, the applicant commenced a recitation of what appeared to be his refugee claims before the Tribunal.  I explained to the applicant the difference between the role and powers of the Tribunal and the role and powers of the Court. The applicant in effect sought an adjournment of his hearing today on the basis that he said he wanted more time to obtain the services of a “real lawyer” and that he had not received any correspondence from what I took to be the Minister's representatives and, in particular, a reference to the Minister's written submissions.

12. I had granted a short adjournment to enable the interpreter to translate those submissions for the applicant but was satisfied, with reference to Respondent's Exhibit 1 (“RE1”) and Respondent's Exhibit 2 (“RE2”), that the Minister's solicitors had taken all reasonable steps to serve this document on the applicant. The respondent’s letter dated 7 September 2006 (“RE1”) sent to the applicant's address for service was returned with the notation from the Post Office "Left Address/Unknown" and the respondent’s letter dated 13 September 2006 (“RE2”) was sent to the applicant's home address by courier.  There is nothing before me to show that it was undeliverable, although the applicant claimed that he had also left that address.

13. Despite three appearances at directions hearings before Lloyd-Jones FM, the applicant does not appear to have taken any steps to notify the Court, or for that matter the Minister's solicitors, of any change in his relevant addresses.  The applicant's explanation, albeit from the Bar table, was that he was unsettled when he arrived in Australia and had to use the addresses of friends. He has also put to the Court that his application and amended applicant were also drafted with the assistance of a friend.  I was satisfied therefore that the Minister had taken all reasonable steps to serve the submissions on the applicant in all the circumstances, particularly the absence of any satisfactory explanation by the applicant as to the failure to maintain with the Court an effective address for service.

14. I saw the short adjournment granted this morning for the purpose of the interpreter translating the submissions as being fair and reasonable in the circumstances.  I was not persuaded that any further or longer adjournment should be granted to the applicant for the purposes of his obtaining the services of a lawyer.  The applicant has had over 10 months since the filing of his application to have sought these services and he was unable to explain satisfactorily as to why the friends who had assisted him with the provision of addresses and in drafting his applications to the Court could not have also assisted him in obtaining the service of, as he said, a lawyer. The applicant, in particular, was unable to offer any explanation as to why he did not go to a lawyer following the directions hearing on 18 May 2006 when the matter was set down for final hearing today.  In all the circumstances I cannot see that it would be of any real utility to further delay the hearing of this matter, particularly as the applicant was unable to provide any real explanation as to why he would now be able to go and find the services of a lawyer when he had failed to do so. While the Court is sensitive to the difficulties faced by people who come from a non-English speaking background, in the time available to the applicant, the three opportunities before the Court provided to the applicant and with access to some friends, I cannot see that the applicant has acted in a satisfactory manner in relation to obtaining the services of a lawyer. I am not satisfied that if there was any further opportunity provided to the applicant that he would take appropriate steps in the future. I was also persuaded of the lack of utility in providing any further time to the applicant, because on what is before me and on what the applicant said to the Court today, I could not see that there was any legal issue arising from the material from which the applicant would benefit with the obtaining of any legal advice. 

15. In relation therefore to having refused the adjournment, I turned to consider the matter before me. The relevant facts to support an application to the Tribunal need to be supplied by the applicant himself in as much details as necessary to establish the facts and then to satisfy the Tribunal that the applicant must be granted a protection visa.  It is, in the sense as explained in Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559, for the applicant to make out his case. The relevant statutory regime, and I refer here to s.65 and s.36(2) of the Migration Act 1958) (“the Act”), provide that a decision maker must reach a requisite level of satisfaction that an applicant meets at least the criterion for the grant of a protection visa as set out in s.36(2) of the Act. That is, that the applicant is a refuge pursuant to the definition that is set out in Article 1A(2) of the Refugees Convention.

16. It is clear that in the case before me, the Tribunal could not reach this requisite level of satisfaction. The Tribunal in the case before me clearly understood the test that it needed to apply and that is, whether it could be satisfied that the applicant had a well founded fear of persecution in China for any Convention reason. On what the applicant himself had put before the Tribunal, it could not be so satisfied. 

17. On the material before me, the Tribunal took steps to ensure that the applicant was on clear notice that it was unable to be satisfied that the applicant met the relevant test to be found to be a refugee. The applicant was invited to come to a hearing before the Tribunal and there is nothing before me to show that this letter was returned as undeliverable to the Tribunal.  The Tribunal's relevant record before the Court now shows that there was no reply from the applicant in relation to the invitation to a hearing. I note that in similar circumstances, where an applicant failed to appear before the Tribunal, in the face of a letter as in the case before me putting the applicant on notice, that the Tribunal was not prepared to make a decision in favour of the applicant. A Full Federal Court has described rejection of the application as an inevitable consequence of the non-attendance and I refer here to the case of NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].

18. Clearly the applicants were put on notice as to the process of the review and the Tribunal's preliminary view of the material that had been put before it. He was given the opportunity to provide further material by way of evidence at a hearing before the Tribunal, or oral submissions in support of their claims. The applicant appeared to claim before me today that due to his difficulty of security and address and his reliance on friends that he did not receive some letters and it was unclear whether this was a reference to the Tribunal, or a reference to the Court, or the Minister's solicitors. On what was before the Tribunal, I cannot see that there was any failure by the Tribunal to comply with the relevant statutory requirements in relation to the giving of the invitation to the hearing and its subsequent proceeding to decision pursuant to s.426A of the Act. The applicant provided an address for service to the Tribunal and the Tribunal wrote to the applicant at that address for services. He was on clear notice in the declaration that he signed when he made his application to the Tribunal that he should provide changes of contact details to the Tribunal, including any new address and was on clear notice by way of this declaration that if he did not do so, a decision could be made in his absence. I refer her to the declaration made by the applicant to the Tribunal as reproduced at CB 44. I cannot see that in all the circumstances, there can be any successful complaint by the applicant now that the Tribunal was not able to be satisfied as to the matters that it needed to be satisfied before a protection visa could be granted.

19. In Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 the Court cited the Full Federal Court’s decision in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16], where it was said:

    "Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence."

20. In relation to the applicant’s claim that the Tribunal was biased the respondent submitted that this complaint cannot be established in the absence of any “transcript” evidence. For the applicant’s benefit, I should note that an allegation of bias on the part of a Tribunal is an extremely serious matter. An allegation of actual bias, or the apprehension of bias, must be supported by evidence. Such an allegation implies that the Tribunal member, by their attitude and conduct, can be shown to have preset in their mind the ultimate outcome of the matter. In particular, allegations of actual bias carry with them the onus that they must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he or she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. I note in this regard that the applicant would need to present more than just the conclusion reached by the Tribunal to support his claim. Allegations of the apprehension of bias must be reasonable to succeed. The standard of reasonableness is determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] to [32] per). In the case before me the applicant has brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of his claims, that the Tribunal can be said to have proceeded with the apprehension of bias, or that the Tribunal was biased. In relation to the Minister's submission in this regard, I note also the Federal Court Judgment in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 such that it is rarely the case that such claims can be made out with reference to the decision record alone. And in the matter before the Court today, the applicant has put no other evidence before the Court.

21. The mere fact that the Tribunal put the applicant on notice that on what was before it, it could not reach the requisite level of satisfaction such that a protection visa should be granted does not of itself reveal bias or the apprehension of bias on the part of the Tribunal.  The Tribunal had previously put the applicant on notice of the relevant process that it was to employ and acted consisted with its earlier advice and invited the applicant to a hearing.  There is no evidence whatsoever before the Court now that the invitation to the hearing was issued with anything other than good faith and with an intention to provide the applicant with an opportunity to further present his claims. In all, therefore, this complaint does not succeed. The tests as enumerated above have clearly not been satisfied.

1. The applicant’s also complains that the Tribunal based its findings on “the information, or lack of information” contained in his protection visa application. I take this to be a reference to a breach of s.424A(1) of the Act. I agree with the respondent that the Tribunal did not rely on any particular information contained in the applicant’s application for a protection visa in the sense, as illuminated in the Full Court decision of SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 and with reference to the High Court decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and the earlier Full Court decision in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679. The lack of information referred to by the Tribunal in its decision record is not information for the purposes of s.424A. In this regard I also refer to Allsop J. in SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238, at [9] to [14] of his Honour's Judgment.

2. The case before me today is not a case where the Tribunal relied on inconsistencies between what was put to the respondent's Department and then subsequently to the Tribunal. In any event, by his statement attached to his application for review (CB 45) the applicant clearly gave all of his claims (such as they were) to the Tribunal for the purposes of the review. Even if the claims to the first respondent's department could be said to constitute information for the purposes of s.424A(1), s.424A(3)(b) would apply to exclude this information from the operation of s.424A(1) in this case.

3. The applicant's second particular, an assertion that he is a Falun Gong practitioner, challenges to the Tribunal's finding of fact, which is clearly seeking impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

4. The last particular in the applicant’s amended application states that he failed to attend the hearing because he “missed the date of the hearing”. I note in this regard that the Tribunal followed the correct procedures, in compliance with ss.425A and 426 of the Act. It sent the applicant an invitation, wrote to the applicant’s address for service as provided in his application for review, and the invitation complied with relevant notice periods and other relevant statutory requirements. Further I note as I stated before, no evidence is before the Court now that the Tribunal's letters were returned to it as undeliverable, and in the circumstances, no explanation was offered to the Tribunal for the failure to attend or any inability attendant on having missed the date of the hearing.

5. In all therefore, the applicant's complaints as put in his application, cannot be made out, nor can I see any error, let alone jurisdictional error, in the Tribunals' decision. The Tribunal complied with its statutory requirements; that is the relevant statutory requirements and on what was before it, simply could not be satisfied that a protection visa must be given to the applicant. There is no jurisdictional error in what the Tribunal has done and the application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date: 15 September 2006