SZHVR v Minister for Immigration
[2008] FMCA 198
•18 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHVR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 198 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – applicant did not attend Tribunal hearing – where applicant’s wife had separate application before Tribunal – whether Tribunal refused any application for a combined hearing – whether bias, unfairness or failure to follow statutory procedures. |
| Migration Act 1958 (Cth) ss.422B, 424A, 425, 426A, 427 |
| Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 407 Re Refugee Review Tribunal; Ex parte H [2001] 75 ALJR 982 |
| Applicant: | SZHVR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3696 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 18 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 February 2008 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3696 of 2005
| SZHVR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 22 November 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The background to this application is that the applicant, a citizen of the Peoples Republic of China, arrived in Australia in May 2005. He applied for a protection visa. In his application he claimed that he and his wife were active members of Falun Gong. He claimed “we had certain things happen to us”. However, it is clear that the application related only to the applicant. The applicant stated in that form that his wife was not included because she had her own application. It is apparent from material now before the Court that the applicant’s wife lodged a separate application for a protection visa which contained similarly worded claims and which did not include the applicant in these proceedings.
The application presently before the Court relates only to the Tribunal decision in relation to the applicant. However for reasons that will become apparent, it is necessary to refer at times to aspects of his wife’s application and the processing of that application.
The applicant’s application for a protection visa was unsuccessful. He sought review by application received by the Tribunal on 11 July 2006. In the review application he set out his residential and mailing address contact details. He did not nominate an adviser nor did he provide a contact telephone number. It is clear from the review application that it related only to the applicant.
The Tribunal wrote to the applicant by letter dated 1 September 2005, at the address provided as the mailing address on his application for review, inviting him to attend a Tribunal hearing on 11 October 2005. The letter advised him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.
The Tribunal also advised the applicant that if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice. The applicant was invited to complete an enclosed response to hearing invitation form and advised that he should complete the witnesses part of the form if he wanted the Tribunal to get oral evidence from another person.
In the response to hearing invitation form received by the Tribunal on 13 September 2005 the applicant advised that he wished to attend the hearing. In response to the question: “If your application includes other family members, does any family member want a separate hearing?”, he responded “No”, as he did to the questions “Do you want the Tribunal to take oral evidence from any witnesses?” and “Do you want to bring anyone else with you to the hearing?”. He did not indicate that he had any special needs for the hearing.
The Tribunal recorded, however, that the applicant did not appear before it on the day, time and place at which he was scheduled to appear. Nor did he contact the Tribunal to request a rescheduled hearing date or to explain the reasons for his non-appearance. The Tribunal noted that as there was no authorised recipient no such line of enquiry was possible.
In those circumstances the Tribunal determined pursuant to s.426A of the Migration Act 1958 (Cth) to make a decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal stated that it had before it the Tribunal and Departmental files, which included the applicant’s protection visa application and the delegate’s decision record as well as country information. It summarised the claims made by the applicant in connection with his protection visa application, but found that based on the “insufficient detail” he provided, it was not satisfied that he invoked protection obligations in Australia.
While the applicant claimed to fear persecution arising from the practice of Falun Gong which he said commenced in 1997, the Tribunal found that he did not provide any detail on how he practised Falun Gong. While he claimed that he and his wife had suffered “serious mental and physical torments” from the Chinese authorities, he did not provide any detail in relation to this claim or as to how he continued to practise Falun Gong secretly.
The Tribunal referred to the fact that it is for an applicant to satisfy it that the statutory elements for the grant of protection are made out. It found that based on the claims the applicant had provided it was not satisfied that the statutory elements for the class of visa for which he applied were established. On the evidence before it it was not satisfied that the applicant was a sincere and genuine Falun Gong practitioner as claimed, nor that he was even a mere practitioner. Nor was the Tribunal satisfied that the applicant had been imputed with such practice in China in the past or that he had a real chance of being imputed as a Falun Gong practitioner should he return to China. Hence, it did not accept that the applicant had a well-founded fear of persecution arising from his alleged practice of Falun Gong in the PRC.
As the applicant did not claim and nor did the Tribunal find on the evidence before it that he feared persecution for any other reason should he return to China it did not accept that he would have a well-founded fear of persecution for a Convention reason.
The applicant sought review by application filed in this Court on 15 December 2005. He also swore and filed an affidavit on the same day. In the application the applicant stated:
The Tribunal refused my application for a combined hearing with my wife … NO5/51598, when we applied for a combined hearing in writing. However, when my wife attended the hearing, my wife was pushed to bring me with her for the hearing, she was told that if she did not bring her husband, she would not have a hearing and the Tribunal would send a summon[sic] for me to attend. No one has experienced this before as I asked other people about it, and I did not know why the Tribunal refused the combined hearing and would send a summon for my attendance to my wife's hearing. I was shocked and could not make the right judgment at that moment. My application can not be processed normally. I could not make a decision as what I should do because of being shocked. I believe that the Tribunal made jurisdictional error when considering my application.
In his affidavit the applicant claimed that “they” were scared and could not understand why and/or make the correct decision about attending the hearing.
In written submissions counsel for the first respondent addressed grounds in an application dated 25 April 2006 which appears to have been served but not filed. A copy of this application was provided to the Court by the legal representatives for the first respondent. It again takes issue with whether or not there should have been a combined hearing, albeit that the concern is expressed in a slightly different way. I have considered all of the grounds in both the original application and this document which is as follows:
1) The Tribunal had bias against my wife and me. The Tribunal refused my application for a combined hearing with my wife…
…NO5/51598, but when my wife attended the hearing, the officer asked my wife to leave and pushed my wife to bring me with her for the hearing. She was told that if she not bring her husband, she would not have a hearing, and the Tribunal would send a summon for me to attend. I was shocked and worried about that. Because of the worries, we dared not to attend the hearings and hoped that we could communicate with the officer in writing instead of face to face. The Tribunal officer then had bias against us because we failed to attend the hearing.
2) The Tribunal failed to provide particulars of the information that was the reason, or part of the reason for affirming the decision, s.424A of the Migration Act 1958. The Tribunal therefore failed to carry out its statutory duty.
3) The Tribunal fell into jurisdictional errors when considering my application for a protection visa. The Tribunal could not make a fair decision on my application because of their bias against us. The Tribunal was wrong to force my wife to bring me to the hearing and saying that a summon would be sent, and no hearing otherwise.
4) The Tribunal did not observe Migration Act 1958 properly to making the decision.
In oral submissions the applicant reiterated that he had been scared. A question arose as to whether there was any evidence in the Tribunal files of any letter from the applicant requesting a combined hearing, as referred to in the application for review. The hearing was adjourned to enable the solicitors for the first respondent to put before the Court any further relevant material, including any written request by the applicant to the Tribunal for a combined hearing with his wife and any other relevant material. The parties were given the opportunity to file written submissions in relation to any such material.
The first respondent filed further material including a copy of the Court Book in relation to the most recent judicial review application of the applicant’s wife. She was identified in proceedings in this Court as SZHVS. In addition, an affidavit affirmed by Therese Mary Quinn on 18 February 2008 was filed in Court annexing relevant documents including a copy of orders made by consent in relation to the wife’s first judicial review application remitting her application to the Tribunal for reconsideration. It was noted in those orders that the first respondent had conceded that such orders were appropriate on the basis that the Tribunal had breached s.425(1) of the Migration Act 1958 where the invitation purportedly sent pursuant to that section was rendered “illusory” because the Tribunal gave the wife the impression that she would not be able to give evidence unless her husband also attended to give evidence. The Tribunal carried out such a redetermination.
It is apparent from the wife’s Court Book that her visa application followed a similar format to the separate application by her husband. Her application was refused and she sought review by the Tribunal. The Tribunal (which was constituted by a member other than the member conducting the applicant’s review) wrote to her on 25 August 2005 inviting her to attend a hearing on 28 September 2005. However in that hearing invitation, as distinct from the invitation in relation to her husband (the present applicant), the Tribunal not only noted that the wife could ask the Tribunal to obtain oral evidence from another person or persons (as in the standard form letter) but also went on to request that her husband (the applicant in the present proceedings) be present at her Tribunal hearing as a witness.
On the wife’s response to hearing invitation, dated the same day as the husband's response to his separate hearing invitation, there is a typed notation referring to the husband’s Tribunal file number and stating:
I would like to have the hearing together with my husband. His hearing will be on 11 October 2005.
There is no such notation on the present applicant’s response to hearing invitation. In addition, the wife wrote to the Tribunal stating that she would like to have her hearing together with her husband’s hearing and referring to her husband’s file number. That undated letter appears under the name and file number of the wife as it appears in other documents in relation to her Tribunal review. The copy in the wife’s Court Book is stamped received by the Tribunal on 13 September 2005. She sought a hearing together with her husband’s hearing. She referred to her husband’s Tribunal file number and continued:
Would you please let me know whether it is ok? Please send me a letter letting me know if it is ok. I am looking forward to hearing from you soon.
There is no such letter to the Tribunal from the applicant. This is not disputed by the applicant.
It is apparent from the material before the Court in relation to the wife’s Tribunal review (which includes as an annexure to the affidavit of Ms Quinn a transcript of the initial Tribunal hearing of the wife’s application which commenced on 28 September 2005) that in the absence of the husband on 28 September 2005 her hearing was adjourned until 28 October 2005. The Tribunal wrote to her confirming this on 4 October 2005 and requested that her husband attend her hearing on 28 October 2005.
As indicated above, the applicant did not attend the Tribunal hearing scheduled for him on 11 October 2005. It is also apparent that his wife did not attend the continuation of the hearing in relation to her application on 28 October 2005. There is nothing before the Court to suggest that the applicant appeared on that day either.
While the wife’s initial application for judicial review was successful and the matter remitted for reconsideration by the Tribunal, what is relevant for present purposes is whether the applicant’s contentions establish jurisdictional error on the part of the differently constituted Tribunal in the procedures adopted in relation to his review application. I have summarised the findings and reasons of the Tribunal above. I note that apart from referring to the basis of the original visa application (in which the applicant referred to himself and his wife) there is no mention of the wife’s application or of what occurred in relation to that application in the Tribunal decision that is under review in this case. Nor did the applicant or the Tribunal seek the presence of his wife at the applicant’s scheduled hearing.
A number of possible grounds for review might be raised by the circumstances before the Court. I considered first the claim of bias or apprehended bias. (See generally Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 407 at [72] per Gleeson CJ and Gummow J and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [27] – [28]).
The Tribunal complied with its obligation to invite the applicant to a hearing. There is nothing before the Court to suggest that the applicant attempted to give the Tribunal any explanation for his failure to attend the hearing. In particular, there is nothing to support the contention that he attempted to communicate with the Tribunal officer in writing instead of face to face.
Moreover there is no evidence of any request by the applicant for a combined hearing with his wife. The Tribunal did not request that the wife attend the husband’s hearing. There is no notation on his response to hearing invitation or any indication that he wanted the Tribunal to take evidence from his wife or bring her to the hearing or that he otherwise sought a combined hearing (although I recognise that he may have regarded his wife’s request as sufficient to indicate his wishes).
In contrast, his wife wrote to the differently constituted Tribunal conducting review of her visa application seeking a hearing together with her husband. That request was responded to by the Tribunal in a letter to the wife of 15 September 2005 indicating that her hearing in her case would proceed as scheduled and her husband should attend that hearing “as a witness”.
It was submitted for the first respondent that no bias was apparent in the manner in which the Tribunal reached its decision with respect to either the applicant or his wife. However, the issue before this Court is whether there was any actual or apprehended bias apparent in relation to the manner in which the Tribunal reached its decision with respect to the applicant.
While it may be understandable that people in the position of the applicant and his wife may be somewhat confused and concerned by two different Tribunal members conducting two separate reviews and by what occurred in relation to the applicant wife’s hearing, that does not establish bias or even apprehended bias on the part of the Tribunal conducting the review of the applicant’s application. There is nothing in the material before the Court in to indicate that the applicant asked the Tribunal for a combined hearing with his wife (his wife’s letter is not evidence of such a request by him). There is nothing to suggest that the Tribunal (which was constituted by a member other than the member who conducted the review of the wife’s application) had any regard to what occurred in relation to the wife’s request or application.
These circumstances do not establish that the conclusions of the Tribunal in relation to the applicant’s application were reached “with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly” (see WAKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 32 at [30]) such as to constitute actual bias.
I have also had regard to what the High Court stated in Ex Parte H in relation to the test for apprehended bias and the need to determine whether, from the perspective of a properly informed fair-minded lay observer, whether such an observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided.
The proceeding in this instance was a Tribunal review. The matter in issue was the applicant’s separate application for a protection visa. The conduct which is said to give rise to actual or apprehended bias arose from what occurred in the conduct of his wife’s separate application by a differently constituted Tribunal. The applicant did not ask the Tribunal conducting his review for a combined hearing.
While I appreciate that the applicant may have been confused and concerned because of what occurred in relation to his wife’s separate review application and may have been amenable to a combined hearing as sought by his wife, such subjective concern is not such as to establish apprehended bias constituting jurisdictional error on the part of the Tribunal conducting the review in relation to his application.
While the circumstances in relation to the wife’s application were such as to lead to a remittal by consent on the basis that there had been a failure by that Tribunal to comply with s.425 of the Migration Act 1958, in all the circumstances, bearing in mind the objective perspective of a reasonable bystander properly informed (see Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877 at [65] and authorities referred to therein), I am not satisfied that apprehended bias is established. Nor more generally, insofar as such an argument maybe intended to be raised (subject to the operation of s.422B of the Migration Act 1958), is a lack of procedural fairness established.
Even if there was in this case some confusion and concern on the part of the applicant or a misconception that the Tribunal would treat his wife’s request for combined hearing as a joint request, that does not establish that there was a lack of procedural fairness or a failure to comply with s.425 of the Migration Act such as to constitute jurisdictional error. It may have been otherwise had there been evidence before the Court of any request by the applicant for a combined hearing with his wife if such request had not been considered by the Tribunal. However, that is not the case and, as indicated, there is nothing in the Tribunal reasons for decision to suggest that it had any regard to the circumstances of the processing of the wife’s application by a different constituted Tribunal. There is nothing in the reasons or procedures of the Tribunal conducting the review of the applicant’s application that establishes jurisdictional error.
It is also relevant in relation to both the complaints of bias and the scope of s.425 that there is no evidence that the applicant sought to communicate with the Tribunal member in writing instead of face to face as contended. Rather, in the completed response to hearing invitation the applicant indicated that he wished to attend the hearing but responded “no” to the other relevant questions. There is no evidence that he subsequently attempted to communicate with the Tribunal in any way.
I have also considered more generally, particularly in light of the additional information put before the Court by the first respondent, whether the circumstances are such as to establish any jurisdictional error, whether by way of a failure to comply with s.425 of the Migration Act or otherwise.
As discussed above, in contrast to the position in relation to his wife, it cannot be said that the applicant’s invitation to a hearing was “illusory”. There is no suggestion that it was indicated to him that he could not give evidence unless his wife attended his hearing (as was conceded by the first respondent in relation to the processing of the wife’s application).
In the absence of evidence that the applicant informed the Tribunal that he wished to have his hearing combined with that of his wife, it is not apparent that there was any error on the part of the Tribunal in failing to consider such a possibility in the course of assessing his application for review, or in the course of assessing the circumstances in which he failed to attend the hearing scheduled on 11 October 2005. As indicated, there is nothing in the material before the Court to indicate that the Tribunal member responsible for the applicant’s review had taken into account what was occurring at the same time in the different processing of the wife's review application.
Insofar as the applicant’s complaint is in fact that the Tribunal wanted him to attend his wife’s hearing to give evidence in relation to her application for a protection visa and reflects a concern about the suggestion of a summons to attend, that complaint does not establish jurisdictional error on the part of the Tribunal dealing with his review application. I note in any event that a Tribunal has power to summon a person to appear before it to give evidence (see s.427 of the Act).
The Tribunal did not require or request the applicant to bring his wife to his hearing. The circumstances thereafter show no indication of that being a matter that affected the determination of the applicant’s review application, let alone a matter constituting jurisdictional error.
It is also contended that the Tribunal breached s.424A of the Migration Act 1958. There is no particularisation of this ground. The basis for the Tribunal’s reasoning in relation to the applicant was its inability to be satisfied that he met the statutory requirements for a protection visa on the limited information before it. The Tribunal did not rely upon information obtained from the applicant’s protection visa in reaching a determination adverse to him in such a way as to give rise to a s.424A obligation. Nor, as I have indicated, did it rely on any information in relation to his wife’s claims or on what occurred in relation to the processing of her review application. Rather, the Tribunal found that the applicant had failed to provide it with sufficient information to substantiate his claims. (See SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29] per Alsop J and SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [16] to [21]). No failure to comply with s.424A or other jurisdictional error is established.
In reaching these findings I make no comment on whether or not it might have been preferable for the Tribunal hearings in relation to the separate review applications of the applicant and his wife to be conducted at the same time by the same Tribunal member. I note for the benefit of the applicant that this Court has no power to remit a matter based on such concerns in the absence of jurisdictional error. If he remains concerned as to the manner in which his application and that of his wife were dealt with by the Tribunal then these may be matters that he can raise with the Minister for Immigration. However such concerns are not matters that establish a jurisdictional error on the part of the Tribunal in relation to the review of the applicant’s application for a protection visa. In these circumstances the application must be dismissed.
The applicant has been unsuccessful. There is nothing in the material before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. In all the circumstances of this case I consider that the amount sought by the first respondent is appropriate.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 4 March 2008
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