SZHSJ v Minister for Immigration

Case •

[2006] FMCA 1368

•

6 September 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHSJ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1368
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision by the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse a protection visa to the applicant – applicant a citizen of People's Republic of China – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss. 425, 426A, 474
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476
Minister for Immigration and Multicultural Affairs v Capitly (1999) FCA 193
NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121
Applicant: SZHSJ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3518 of 2005
Judgment of: Scarlett FM
Hearing date: 6 September 2006
Date of last submission: 6 September 2006
Delivered at: Sydney
Delivered on: 6 September 2006

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Mr Bird
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3518 of 2005

SZHSJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 19th October and handed that decision down on 8th November 2005. 

  2. The Tribunal affirmed the decision of a Delegate of the Minister not to grant the Applicant a protection visa. 

  3. The Applicant seeks a review of that decision although does not say in either his application or his amended application exactly what orders he wants. He did say, however, at the end of his application:

    Thank you so much for your attention to this application and hope I can get a fair justice and this case can be reassessed by Refugee Review Tribunal. 

  4. In my view, the Applicant is seeking an order setting aside the Tribunal's decision and an order in the nature of mandamus sending his application back to the Tribunal for consideration. 

Background

  1. The Applicant is a citizen of the People's Republic of China, who arrived in this country on 13th February 2005. He applied for a Protection (Class XA) visa on 11th March, but this application was refused on 12th April 2005.  The Applicant then applied to the Refugee Review Tribunal for a review of that decision. He lodged his application on 9th May 2005. 

  2. The Applicant did not provide any information to the Tribunal with his application; he provided a mobile telephone number, and asked that his correspondence should be sent not to his residential address in a suburb of Sydney but to a mailing address in the city of Sydney.  This mailing address is one which, in various forms, appears regularly in matters before this Court. 

  3. The Tribunal wrote to the Applicant and invited him to attend a hearing on 25th August 2005.  The Applicant advised the Tribunal on


    11th August that he wanted to attend that hearing to give evidence. The Tribunal determined that it would not be able to proceed with the hearing on 25th August and rescheduled the hearing to 19th September 2005. The Tribunal did not have a record of the Applicant having been advised of that change of date. The Applicant did not attend the Tribunal on 25th August, which is not relevant to the proceedings before me. 

  4. The Tribunal telephoned the Applicant on 12th September on his mobile telephone. The Tribunal then wrote to the Applicant on 14th September as it said at p.74 of the Court Book:

    To ensure that he had not, through any misunderstanding, been denied the opportunity of a hearing, advising that it had not been possible to proceed with the hearing on 25 August 2005, and inviting him to attend a hearing at 9 am on 10 October 2005.

  5. The Applicant did not reply to the invitation before the hearing, nor did he attend on 10th October.  However, someone left two documents with counter staff at the office of the Tribunal during that day. One of those documents was a response to hearing invitation indicating that the Applicant did not want to attend the hearing. The document was signed by the Applicant, and the Applicant confirmed to the Court that the signature on the document was indeed his signature.

  6. The other document, however, was a medical certificate from Dr Albert Ng. That medical certificate was dated 10th October 2005.


    The certificate confirmed that Dr Ng had examined the Applicant, who was suffering from an injury to his back and left forearm. Dr Ng considered that the Applicant would be unfit for his normal work from Monday 10th October, until Monday 10th October 2005. Copies of those two documents appear at pages 58 and 59 of the Court Book. 

  7. The Tribunal noted that those two documents appeared to be contradictory. The Tribunal attempted to telephone the Applicant on 11th October without success. The Tribunal was more successful in telephoning the Applicant on Wednesday 12th October.  The Tribunal's records of its internal correspondence and its officer's telephone conversation with the applicant appear on pages 60 and 61 of the Court Book. 

  8. The Applicant indicated that he did wish to have a hearing, but he had suffered an injury at work which meant that he would not have been able to attend on 10th October in any event. The Applicant was told that the medical certificate provided by Dr Ng was insufficient and that he would need to provide a better certificate showing why he was unable to attend a Tribunal hearing.

  9. The Tribunal asked the Applicant to provide this material by


    13th October. The Applicant did not contact the Tribunal, so the Tribunal telephoned him on 14th October. The Tribunal made use of the telephone interpreter service. The Tribunal records that the Applicant asked for more time to obtain a proper medical certificate, and the Tribunal agreed to allow the Applicant to produce either a better medical certificate or an explanation as to why such a certificate could not be made available by 12:00 noon on Monday 17th October.

  10. The report of the message, which appears at page 62 of the Court Book, shows that the Applicant was given the Tribunal's fax number, 9276-5599.  The message indicates that the Applicant was informed that if the Tribunal did not consider either the certificate or the reasons to be sufficient, it could proceed to a decision on his application.


    No further documentation was received, either on 17th October or afterwards.

The Tribunal’s Findings and Reasons

  1. The Tribunal then proceeded on 19th October to make its decision. 


    The Tribunal set out its findings and reasons on pages 76 through to 78 of the Court Book.  The Tribunal is satisfied on the basis of the applicant's protection visa application that the applicant was a national of the People's Republic of China. 

  2. The Tribunal noted that the Applicant claimed a well-founded fear of persecution on the basis of being a Falun Gong practitioner.


    The Applicant's claim included the assertion that shortly after he arrived in Australia he heard that his wife and other practitioners had been detained and mistreated by police. The Applicant stated that his wife had advised him not to return to China because he, too, risks arrest and imprisonment. 

  3. The Tribunal noted, however, that he had not had the opportunity, through a hearing or by any other means, to obtain further information to determine the veracity of the Applicant's claim and whether they establish persecution within the meaning of the Convention and in the Migration Act so that the Tribunal could be satisfied that it met the criteria of the recognition as a refugee.

  4. The Tribunal sets out at page 77 of the Court Book seven different matters upon which the Tribunal would like to have been satisfied.  The Tribunal found:

    On the limited evidence before it, the Tribunal is not satisfied that the applicant is a genuine Falun Gong practitioner, or will be so perceived. 

  5. The Tribunal was not satisfied that the Applicant or his wife had been subject to past adverse attention, and was not satisfied that there were any factors, whether the practice of Falun Gong or any other reason, that would give rise to a well-founded fear of persecution within the meaning of the Refugees Convention in the reasonably foreseeable future.

  6. Accordingly, the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations, and therefore did not satisfy the criterion set out in sub-s.36(2) of the Migration Act. The Tribunal affirmed the decision of the Delegate not to grant the Applicant a protection visa. 

The Application for Judicial Review

  1. In the Applicant's amended application he sets out four grounds for relief.  The Applicant does not read or write English, and the document was prepared for him by another person.  He told the Court that he had first believed that the person was a lawyer, but now believes that the person is a migration agent. 

  2. The grounds for relief are somewhat baffling, and I spent some time with the Applicant attempting to ascertain exactly what was meant.  The first point to be made is that each of the four grounds refers to errors by the Tribunal Member and the primary decision-maker. The primary decision-maker in this context I would take to be the Delegate of the Minister. In this matter the Court is not reviewing the decision of the Delegate, the Court is conducting a judicial review of the decision of the Tribunal. 

  3. The first ground is that the Tribunal failed to recognise the principle of non-refoulement contained in Article 33 of the 1951 Convention relating to the status of refugees. The term "non-refoulement" is unfortunately incorrectly spelt in the application. The ground as such is no more than a challenge to the Tribunal's factual finding that it was not satisfied that the Applicant had shown an entitlement to a protection visa. Non-refoulement refers to the principle of not returning a refugee to the place where he or she is claimed to have been persecuted. 

  4. As this ground appears to be a challenge to the factual finding of the Tribunal, it is outside the scope of judicial review because it is a claim going directly to merits review.

  5. The second ground is difficult to understand, and for that reason I will quote it in full:

    The Tribunal and the primary decision-maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant's claims of refugee status, and the Tribunal failed to consider whether any other motives could ground a finding of lake of bona fides. 

    I presume that what is meant by lack of bona fides rather than a body of water.

  6. I have read through this ground several times, and whilst it appears to be written from the standpoint of a Court exercising appellate jurisdiction, it is difficult to understand exactly what it means.  I put to the Applicant that it contained a reference to lack of good faith or apprehension of bias on the part of the Tribunal, and he agreed with that general view.  I am reinforced in my view that this is what the second ground means as the solicitors for the Respondent appear to have taken a similar view in their outline of submissions.

  7. There is no evidence of bias. There is no evidence of lack of bona fides. It is well-established by the Full Court of the Federal Court that the circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme.


    This is especially so where all that the Applicant relies is the written reasons for the decision under review. (See SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA FC 361 at [44]).

  8. The third ground says that the Tribunal and the primary decision-maker erred in finding that the general attack on the Applicant's credit -

    as an element of a failure to make a bona fide consideration of the application. 

  9. I take that also to be directed towards the claim of lack of bona fides, and I have indicated that there is no such evidence. There is no general attack on the Applicant's credit in the Tribunal's findings and reasons.  The Applicant did not attend a hearing and did not give evidence.


    The Applicant did not provide to the Tribunal any documentary evidence over and above what was provided with his original application. There is no finding as to lack of credit in the Tribunal's decision. There is only a finding of an inadequacy of information to enable the Tribunal to be affirmatively satisfied that the Applicant was entitled to a visa.  This ground must fail.

  10. The fourth ground alleges an error in the construction of what is said to be the Migration Regulation 1958, PtVIII, but clearly refers to the Migration Act. There are three particulars: (1) the Tribunal failed to consider whether it had acted fairly; (2) the Tribunal failed to consider whether in the absence of a lack of a bona fide attempt to make a decision the errors identified were sufficient to make a finding of lack of fairness. It is a bit difficult to know what that means as the absence of a lack of a bona fide attempt would appear to be a double-negative, but if it is a reference to the earlier claims of bias or lack of procedural fairness, then there is no evidence of it. The third ground alleges a failure to consider whether a decision infected by the errors identified in a judgment was a decision to which s.474 of the Act applies.

  11. This ground appears to have been written from the point of view of the Full Court of the Federal Court to conduct an appeal on a decision of this Court, but I take it to be a reference to the fact that jurisdictional error on the part of a Tribunal will mean that the Tribunal's decision will not be a privative clause decision under s.474 of the Migration Act. 

  12. In Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476 the High Court upheld the validity of s.474, and held that the decisions made under the Act must be read so as to refer to decisions which involved neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. (See Plaintiff S157 at [76]).

  13. In my view, the Tribunal's findings and reasons indicate no jurisdictional error. There would be an error if the Court were satisfied that the Tribunal had not complied with its obligation under s.425 of the Act to invite the applicant to a hearing, or if it had misapplied its powers under s.426A of the Act.

  14. It is clear that there was an invitation to an earlier hearing which the Applicant indicated he wished to attend. When that hearing could not take place on the day the Tribunal rescheduled the hearing, but for some reason it emerged that the applicant was not informed or not properly informed of that rescheduling. What the Tribunal did do on 14th September 2005 was, in effect, to start again. 

  15. Whilst the Tribunal refers to rescheduling the hearing, in effect what the Tribunal did by means of its letter of 14th September 2005, a copy of which appears on page 55 of the Court Book, was to constitute a fresh hearing and invite the Applicant to it. That hearing was scheduled to take place at 9:00am on Monday 10th October 2005. 

  16. I am satisfied that the invitation to the hearing should more properly be viewed as a fresh invitation to hearing and it complies with both s.425 and s.425A of the Migration Act. 

  17. Accordingly, when the Tribunal noted that the Applicant did not attend the hearing on 10th October, it was entitled to proceed to make a decision under sub-s.426A(1). Nevertheless, the Tribunal noted that the Applicant had presented two conflicting documents. On the one hand, he presented a response to hearing invitation indicating that he did not wish to attend the hearing, and on the second he presented a medical certificate indicating that he was not able to attend on 10th October.

  18. In the light of the two conflicting documents, the Tribunal chose to exercise its discretion in favour of the Applicant by attempting to ascertain whether he did in fact want to attend a hearing and why he was medically unable to attend on 10th October. The Tribunal telephoned the Applicant on his mobile telephone and ascertained that the Applicant had sustained some sort of an injury.

  19. It is not hard to understand why the Tribunal was somewhat sceptical about a medical certificate indicating that the Applicant had sustained an injury that would only render him unable to appear on the one day.  In my view, it was not unreasonable for the Tribunal to ask for further and better particulars. The Tribunal initially set a deadline of


    13th October. When nothing materialised by 13th October and the Applicant had not contacted the Tribunal, the Tribunal contacted him on 14th October. The Tribunal gave the Applicant a new deadline of Monday 17th October 2005. 

  20. The Applicant told the Court that he went to a doctor again and the doctor telephoned someone at the Refugee Review Tribunal, but he has produced no evidence of that, nor is there any material to that effect in the Court Book. In any event, no further and better medical certificate was provided, nor was there any written document provided to the Tribunal by the Applicant relating to his alleged inability to attend for medical reasons on 10th October.

  21. In my view, the Tribunal did act in accordance with the discretion given to it under sub-s.426A(2) of the Act.  It made inquiries, it asked the Applicant to substantiate his claim of medical inability to attend the hearing, it set two deadlines, and after the Applicant had not complied with the first deadline it took the step of telephoning him rather than proceeding to make a decision.

  22. In my view, it appears that the Tribunal did more than was required.  The solicitors for the Respondent have brought to my attention the decision of Minister for Immigration and Multicultural Affairs v Capitly (1999) FCA 193 where the Full Court held at [35] that an applicant who is sick and cannot attend a hearing is not relevantly afforded an opportunity to appear to give evidence where the RRT refuses to grant an adjournment. It does not, however, require the Tribunal to adjourn every hearing just because a convenient medical certificate can be provided. Courts have been dealing with medical certificates for years. It is not unreasonable to require proper medical evidence if the Tribunal believes that there is a reason to doubt the truth of the allegation of illness or injury.

  23. I am also referred to the decision of the Full Court in NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 where the phrase "real and meaningful information" was held to allow the Tribunal some capacity to impose a reasonable requirement on the applicant to establish why the hearing should be adjourned, and I will refer to the Full Court's decision at [35] and [36].

  24. It is submitted, and I believe correctly, that an applicant's failure to respond to a reasonable request does not indicate that the Tribunal has breached s.425 of the Act.

  25. In my view, the Tribunal's request for better medical evidence was reasonable in the circumstances.  The Tribunal had acted reasonably in making inquiries of the applicant as to why he had not attended, and it was not unreasonable for the Tribunal to view the medical certificate provided with some scepticism.

  1. In my view, there is no denial of procedural fairness.  I am mindful that the Applicant is not legally represented. Quite clearly, the Applicant has had some advice from someone who has prepared a most extraordinary amended application, but I would be very surprised if that person were the holder of a practising certificate.

  2. I am not satisfied that the Applicant has any arguable case on any jurisdictional error. The application will be dismissed. I will hear submissions on costs.

  3. There is an application for costs on behalf of the First Respondent.


    In my view, the Applicant has been wholly unsuccessful and there is no reason why I should not make an order for costs in those circumstances.  The amount sought is $3,500.00.  To my mind, that is a relatively modest sum, and is certainly an appropriate figure.


    The Applicant is to pay the First Respondent's costs fixed in the sum of $3,500.00.

  4. I note that in the outline of submissions orders were sought to add the Refugee Review Tribunal and to amend the title of the Minister based on the application and the amended application, but both of those things have already been done, so there is no need for me to make a further order.

  5. The Tribunal was joined as Second Respondent by


    Registrar McIllhatton on 12th January 2006, and the title of the First Respondent was amended to The Minister for Immigration and Multicultural Affairs again by Registrar McIllhatton on 17th March 2006. 

  6. I will require a transcript of my reasons for this decision. The application will be removed from the list of cases awaiting finalisation. 

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  13 September 2006

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