SZHUM v Minister for Immigration
[2007] FMCA 2109
•21 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHUM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2109 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicants did not attend Tribunal hearing – no denial of natural justice – impermissible merits review – no failure to comply with s.424A – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.426A, 36(2), 65, 425, 425A, 426, 426A, 441G, 441A, 424A |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32 VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 231 ALR 630; [2006] FCAFC 73 SZHSQ v Minister for Immigration and Multicultural and Affairs [2006] FCA 1295 SZIXM v Minister for Immigration and Citizenship [2007] FCA 268 SZJIP v Minister for Immigration and Multicultural Affairs [2007] FCA 694 SZIEQ v Minister for Immigration and Multicultural Affairs [2006] FMCA 921 SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 SZHSQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1295 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 Tin v minister for Immigration and Multicultural Affairs [2000] FCA 1109 Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 |
| First Applicant: | SZHUM |
| Second Applicant: | SZHUN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3635 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 25 September 2007 |
| Date of Last Submission: | 25 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms Z McDonald |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application made on 12 December 2005, and amended on 5 April 2006, is dismissed.
The applicants pay the first respondent’s costs set in the amount of $4,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3635 of 2005
| SZHUM & SZHUN |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 12 December 2005, and amended on 5 April 2006, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 13 October 2005 and handed down on 8 November 2005, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The first respondent has filed a bundle of relevant documents in this matter (the Court Book (“CB”)) from which the following can be discerned. The applicants – husband (“the applicant”) and wife (“the applicant wife”) – who are citizens of the People’s Republic of China, arrived in Australia on 30 May 2005, and on 24 June 2005 lodged an application for protection visas. On 15 July 2005, a delegate of the respondent Minister refused to grant protection visas, and on 16 August 2005 they applied for review of that decision.
Applicants’ claims to protection
The applicants’ claims to protection are contained in their application for a protection visa (reproduced at CB 1 to CB 31, with annexures), in a statement of the applicant (CB 32), and in the application for review (CB 49 to CB 53 – noting in particular the applicant’s statement at CB 53). Only the applicant made specific claims under the Refugees Convention; the applicant wife depended on the refugee claims made by the applicant.
The applicant claimed to fear religious persecution on the basis of his practice of, and involvement in, Falun Gong in China. He claimed that he and his wife attended a peaceful demonstration in Tiananmen Square where many people were arrested. They escaped but then were arrested at a railway station. He further claimed that he was sent to a forced labour camp for half a year where he was brutally tortured. His wife was released as, he said: “there was nothing about her”. The applicant also claimed their families, afraid that they would be put in gaol again, bribed a government official to issue passports to them.
The Tribunal
By letter dated 13 September 2005, and sent by registered post to the applicants at their address for service (CB 51), the applicants were put on notice that on the material before it the Tribunal could not make a decision in their favour. It therefore invited them to a hearing before the Tribunal on 12 October 2005 for the purpose of giving evidence and presenting arguments in support of their claims (CB 56 to CB 57). Relevantly, the Tribunal advised the applicants that if they did not attend a hearing, and a postponement was not granted, the Tribunal may make a decision without further notice. The Tribunal did not receive a reply to this hearing invitation (CB 58). The applicants did not attend the Tribunal hearing. (See the Tribunal’s decision record at CB 69.8.)
The Tribunal’s decision record is before the Court by way of annexure to the applicant’s affidavit of 12 December 2005, and is also reproduced at CB 66 to CB 75. The Tribunal’s decision record reveals that the Tribunal noted that it had advised the applicants that it was unable to make a favourable decision and gave them the opportunity of attending a hearing. Further, that the applicants did not attend the hearing and no response was received to the hearing invitation. The Tribunal also noted that the letter of invitation was not returned unclaimed, and the invitation was sent to the recipients’ most recent address for service. In these circumstances, pursuant to s.426A of the Act, the Tribunal decided to make a decision on the review without taking any further action to enable the applicants to appear before it (CB 69.8).
The Tribunal’s decision record reveals that due variously to the highly vague, generalised and unsubstantial nature of their claims to Falun Gong involvement, and the equally brief, vague and implausible nature of the claims to have been harmed because of Falun Gong involvement, it found it was unable to reach the requisite level of satisfaction that would mandate protection visas being granted to the applicants (ss.65 and 36(2) of the Act) and affirmed the decision not to grant protection visas (see in particular CB 37.8 and the “summary” at CB 74.2).
Application to the Court
The applicants’ originating application to the Court claims:
“1.There was no evidence or the other materials to justify the making of the decision.
2.I and my wife are Falun Gong practitioners, and we were prosecuted by Chinese Government.
3.We face a risk of being prosecuted if I go back to China.”
The applicants’ amended application filed on 5 April 2006 seeks review on the following particularised sole ground:
“1. The Tribunal failed to give natural justice.”
The applicants particularise this ground by claiming that the Tribunal did not take into consideration that they were still practising Falun Gong even after they arrived in Australia, that the Tribunal did not adequately take into consideration that the applicant “really” faced a risk of being gaoled if he returned to China, and also asserts a number of factual issues which were asserted before the first respondent’s delegate and the Tribunal, in relation to the applicant’s claimed detention.
Hearing before the Court
At the hearing before the Court, the applicants appeared in person. The applicants were assisted by an interpreter in the Mandarin language. Ms Z McDonald appeared on behalf of the first respondent.
The applicant submitted that the Tribunal had notified him: “of the letter”, but he could not find the address of the Tribunal and that was why he did not attend the hearing. Given that he had a reason for not attending, and given that in China Falun Gong practitioners are persecuted by the Chinese government, and that he would face persecution in China if he were to return, the applicant asked that his case be returned to the Tribunal for reconsideration.
The applicant wife had nothing to add to her husband’s submission.
No evidence
In the originating application, the applicants assert that there was “no evidence” before the Tribunal to justify the making of the decision.
It is, as the Minister submits in written submissions, that for the applicants to establish that there was “no evidence” for a finding made by the Tribunal, the applicants must show that there was no evidence whatsoever upon which the finding could have been based. (See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356, Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32, particularly at 232-233, 236, 240 and 259, and VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33]-[35].)
This claim however misunderstands the way the Tribunal is statutorily required to operate in conducting the review. It is for an applicant to put claims before the Tribunal, and in light of the claims and evidence before it, the Tribunal is required to reach a requisite level of satisfaction (with reference to ss.65 and 36(2) of the Act) as to whether it is satisfied, as the relevant decision maker, that the applicants are owed protection by Australia because they satisfy, in effect, the definition of “refugee” set out in Article 1A(2) of the Refugees Convention. The applicants did put their claims before the Tribunal, both by way of seeking review of the delegate’s decision, and in the form of the statement attached to the application for review (reproduced at CB 53). The Tribunal is not required to uncritically accept any, or even all, of an applicant’s claims (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437). Nor for that matter does a Tribunal have to “prove” that an applicant is not a refugee. In the current case, the Tribunal simply found there was inadequate evidence such that it could reach the requisite level of satisfaction. No error is revealed in the Tribunal’s decision in these circumstances.
Factual matters asserted by the applicants
Grounds two and three in the originating application assert that the applicants are Falun Gong practitioners, that they were “prosecuted” by Chinese authorities, and face a risk of being persecuted (as I understand it) if they were to return to China. These claims appear to be expanded in the particulars set out in the amended application. In all, this does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Properly the matters asserted are for the Tribunal to have considered and not for this Court. I say this for the applicants’ benefit in particular, even if the Court were to be persuaded to take a different view of these facts that cannot assist the applicants before this Court as the assessment of their claims to protection are for the Tribunal to make as the “decision-maker par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J).
Natural justice
The applicants’ sole ground of complaint in the amended application is that the Tribunal failed to give them natural justice. This is particularised, as stated above, by reference to the bare claims to be owed protection in Australia, and for the reasons set out above, this ground as particularised does not succeed.
However, given that the applicants appeared unrepresented before the Court, I did consider this ground with reference to Division 4 of Part 7 of the Act (given that this Division, pursuant to s.422B which applies to this case, is the exhaustive statement of the natural justice hearing rule as it applies to the applicants’ case (of course, absent bias)). (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48].)
The Tribunal invited the applicants to a hearing pursuant to s.425. This invitation was not returned to the Tribunal as undeliverable or unclaimed. On what is before the Court now, the Tribunal complied with its obligations pursuant to ss.425 and 425A. The invitation was sent to the applicants’ mailing address as notified by them (CB 51 to CB 56), and the invitation complied with the requirements set out in s.425A. As the first respondent submitted, the Tribunal complied with its statutory obligations in this regard and did not need to take further steps to contact the applicants. (See Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 231 ALR 630; [2006] FCAFC 73 (“SZFHC”) at [39], and SZHSQ v Minister for Immigration and Multicultural and Affairs [2006] FCA 1295 (“SZHSQ”), a matter on appeal from this Court in the Federal Court.)
I noted at the hearing however that the Tribunal did take additional steps to see if any other way of contacting the applicants could be found (see in particular CB 58 and CB 69.4). The Tribunal stated in its decision record that given that the applicants did not appear before the Tribunal on the day, time and place at which they were scheduled to appear, that in those circumstances, and pursuant to s.426A the Tribunal decided to make its decision on the review without taking any further action to enable the applicants to appear before it.
Given that the applicants appeared unrepresented before the Tribunal, I did ask the Minister’s representative as to whether the Tribunal properly exercised its discretion pursuant to s.426A to proceed to a decision without taking any further action beyond what it appears to have taken. In particular, since having embarked on further action in this regard, whether the Tribunal should also have written to the applicants’ residential address which was also plainly provided in the application for review, given that other checks in relation to the applicant’s whereabouts were undertaken (see CB 69.6 and CB 58).
The Minister sought, and was granted, the opportunity to make supplementary written submissions on this issue and these were subsequently filed. A similar opportunity given to the applicants was not taken up.
It is, as the Minister submits, well-established that the Tribunal’s obligations in respect of inviting applicants to hearings are subsumed within the procedures set out in ss.425, 425 and 426A. The Minister relied on authorities such as SZFHC at [39], SZIXM v Minister for Immigration and Citizenship [2007] FCA 268 per Conti J, SZJIP v Minister for Immigration and Multicultural Affairs [2007] FCA 694 per Edmonds J, and SZIEQ v Minister for Immigration and Multicultural Affairs [2006] FMCA 921 per Smith FM at [21].
Further, the Minister also submitted that support for the proposition that the Tribunal had complied with its obligations, and was entitled to proceed absent any other application of the principles of procedural fairness in general, was to be found in SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [5]:
“…However, the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries. See NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184, NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121, VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134, NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162, Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 and Others [2005] FCAFC 73, Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73, SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110 and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. In several of these cases the invitation was allegedly never received by the applicant. See VNAA v MIMIA, MIMIA v SZFHC and SZDPB v MIMIA.”
I also note and apply what was said in this regard in SZHSQ per Rares J at [49]:
“It is well known that a statutory provision which confers a discretion upon a decision-maker in terms unconfined allows the decision-maker to have regard to a range of factors that are similarly unconfined in the exercise of a discretion, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Limited (1979) 144 CLR 45 at 49-50; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24 at 40 per Mason J).”
I note that in SZHSQ Rares J found that a construction of s.426A(1) that imposed additional obligations to afford natural justice to an applicant was contrary to the express terms of the provision, and that in that case, while it was possible that the Tribunal might have considered whether to contact the applicant on her telephone number which had been provided, it decided against it. However, it was found that if in fact it had done so, no possible jurisdictional error could be established.
In the case currently before the Court, the applicants were invited to a hearing by a letter sent in compliance with the relevant statutory obligations set out in ss.425 and 425A of the Act. The applicants did not appear before the Tribunal on the day, and at the time, and place, at which they were scheduled to appear. That the Tribunal subsequently took additional steps (as recorded at CB 69.6 in its decision record and also see CB 58 – “Checklist No Reply to Hearing Invitation”), did not reveal jurisdictional error on the part of the Tribunal given that what is required by statute is that the applicants be invited, and that all requirements attendant to that invitation be complied with, and given the failure of the applicants to appear “on the day on which or at the time and place at which the applicant is scheduled to appear” (s.426A(1)(b)). The Tribunal was entitled at that point to proceed to make a decision without taking further action. Given the authorities above, the fact that it did take further action does not reveal jurisdictional error on its part.
I also agree with the Minister’s submissions that the Tribunal’s discussion in its decision record of the matters relevant to its discretion pursuant to s.426A did not create any additional obligation upon the Tribunal in this regard. In the current case, this “discussion” reflected what was done as recorded in the Checklist set out at CB 58.
The checklist provides for the Tribunal, or an employee of the Tribunal, to properly check as to whether the invitation was sent to the address for service. But also provides: “if there is no authorised recipient check the address for service provided by the review applicant in connection with the review or their mailing or residential or business address”. This part of the form has been ticked by the employee of the Tribunal who apparently conducted these searches. In this regard, the applicants did provide to the Tribunal not only a mailing address (CB 51), but also their residential address in Australia (CB 50). A very simple perusal of the application form would have revealed a residential address available to the Tribunal had it wished to have sent an additional copy of the hearing invitation correspondence to that address.
But I agree with submissions made on behalf of the Minister that when properly read, the Checklist in the relevant part quoted above is to be plainly read as follows. In the first alternative, the relevant correspondence is to be sent to the applicant’s authorised recipient. When no such recipient is nominated, as is the situation in this case, the second alternative is that correspondence should be sent to the address for service nominated by the applicant. Only in the further alternative should the Tribunal check that correspondence has been sent to a business or residential address. The use of the word “or” in the body of the Checklist reinforces this plain reading of the Checklist. In total it is, as the Minister submits, consistent with the requirements set out in ss.441G and ss.441A(4)(i) and (ii).
In all, however, given that the Tribunal complied with its statutory obligation pursuant to ss.425 and 425A, the applicants’ failure to attend at the time, date and place scheduled is sufficient to support the exercise of the Tribunal’s discretion to have proceeded without the applicants actually attending the hearing. That it took some additional steps does not reveal jurisdictional error on its part.
Having properly exercised its discretion in this regard, I also cannot discern jurisdictional error in the Tribunal’s reasons for decision. While it made some reference to the credibility of the applicant’s claims, a plain reading of its reasons for decision reveals that it could not reach the statutorily required state of mental satisfaction that the applicants had a well-founded fear of persecution for a Convention reason. In circumstances where it was not able to be so satisfied, the Tribunal had no option but to refuse the grant of the protection visas (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
In these circumstances also, no obligation pursuant to s.424A arose. While the Tribunal plainly referred to the applicants’ protection visa application, it was clearly the deficiencies in what was claimed, and the inadequate state of the evidence that informed the Tribunal’s reasons for its decision. Further, the Tribunal is entitled to list significant matters that it would have liked to explore at the hearing. (See NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5].)
Further, the absence of information (for example, the absence of a claim to have practised Falun Gong in Australia) is not “information” within the meaning of s.424A (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [18] and [22]). Also, the word “information” (for the purposes of s.424A) does not encompass the Tribunal’s subjective thought processes and appraisals (see Tin v minister for Immigration and Multicultural Affairs [2000] FCA 1109, Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396, VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 and SZBYR at [17] and [18]).
To the extent that the Tribunal referred to some of the applicant’s claims as being “implausible”, that is, the circumstances of his claimed detention and the claim that he continued his Falun Gong practice after his release, such evaluation of aspects of the applicants’ claim is also not “information” for the purposes of s.424A(1).
Applicants’ Explanation
At the hearing before the Court, the applicant submitted that he had received the letter of invitation, and attempted to attend the hearing, but did not know how to find the Tribunal because of his lack of English and understanding. On this basis, he asked that his matter be returned to the Tribunal because he has been subject to persecution in China. The applicant did not provide this statement to the Court in any evidentiary context. Nor has he provided any other evidence to support this claim.
I put to one side the apparent inconsistency in the applicant’s statement to the Court. On the one hand, he submitted that he could not find the Tribunal because of a lack of English and lack of general understanding, yet on the other hand this submission belies (that without the presence of his friend) he was able to understand, or to obtain assistance in understanding, the contents of the letter of invitation to the hearing such that he set out to attend the hearing, on his own submission, apparently on the day of the hearing.
But in any event given, as set out above, that the Tribunal, met its procedural fairness obligations as set out in Division 4 of Part 7 of the Act, the Tribunal was empowered to proceed pursuant to s.426A to make its decision in the applicants’ absence. No jurisdictional error is evident in its decision in this regard.
I should also note that the applicant did not claim, let alone put any evidence before the Court, that even if this attempt was unsuccessful on the day of the hearing that he made any attempt to contact the Tribunal subsequently to tell it of any difficulties that he encountered. While the applicant claimed that his friend who assisted him in preparing his protection visa application had gone back to China prior to the hearing, it is noteworthy that following dispatch of the Tribunal’s decision record to the address for service on 8 November 2005 (CB 65), the applicants were able to arrange the making of an application to this Court on 12 December 2005. Indeed, were subsequently able to successfully find their way to the Court for the hearing. But in any event, as set out below, none of this can affect the situation that the Tribunal was entitled, in all the circumstances, to proceed in the way that it did.
Conclusion
I cannot discern jurisdictional error in what the Tribunal has done, either on the grounds put forward by the applicants in their application, nor otherwise. This application is therefore dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 21 December 2007