SZIDP v Minister for Immigration
[2007] FMCA 687
•30 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIDP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 687 |
| MIGRATION – Refugee – applicant did not attend Tribunal hearing – Tribunal did not accept applicant’s claims – Tribunal could not reach requisite level of satisfaction – no s.424A error – application dismissed. |
| Migration Act 1958 (Cth), ss. 36(2), 422B, 425, 425A, 426A, 425A(3), 65, 441A(4), 441C(4), 565, 536(2), 424A, 424A(1), 424A(3), 424A(2) Migration Regulations 1994, Regulation 4.35D |
| Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 SZFVG v Minister for Immigration & Multicultural Affairs [2006] FCA 1179 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Al Shamry v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1679 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 SZFXC v Minister for Immigration and Citizenship [2007] FCA 381 SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 |
| Applicant: | SZIDP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 177 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 30 April 2007 |
| Date of Last Submission: | 24 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms. V. McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The reference to the first respondent to be amended to read “Minister for Immigration and Citizenship”.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 177 of 2006
| SZIDP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Revised
Ex tempore
I have before me an application filed in this Court on 18 January 2006 and amended on 21 April 2006, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 28 November 2005 and handed down on 20 December 2005, affirming the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 21 May 2005. She lodged an application for a protection visa with the first respondent’s Department on 1 June 2005. On 30 August 2005, a delegate of the respondent Minister refused to grant a protection visa. On 4 October 2005 the applicant applied for review of that decision.
Claims to protection
The applicant’s claims to protection are set out in her application to the first respondent’s Department (reproduced at Court Book (“CB”) 1 to CB 26) and in her application for review to the Tribunal (CB 49 to CB 52). The applicant’s claims were that she became a Falun Gong follower in 1997, before the authorities outlawed the sect in 1999, and during this time she actively organised the workers in her factory to practice Falun Gong for their health. She claimed that the group expanded until the crackdown, when the members had to hide to avoid persecution. She further claimed that on one occasion in 2000 she was detained, but did not say for how long, and that she became ‘diseased mentally’ and could not work. She claimed she lived in poverty because of her persecution by the authorities.
Tribunal’s findings
The Tribunal’s “Findings and Reasons” are set out at CB 71 to CB 72. The Tribunal found:
1)As the applicant failed to take the opportunity to attend “an interview” (a hearing) and provide additional evidence in support of her claims, it was “very difficult to assess the very limited evidence.” (CB 71.4 to CB 71.5).
2)There were a number of issues which detracted from the applicant’s claims and it was unable to accept that there was a real chance that on the applicant’s return to China she would face a real chance of Convention based persecution (CB 71.10).
3)Due to a lack of evidence it did not accept her claims that:
i)She was a Falun Gong adherent since 1997, and actively organised the workers at her factory to practice for health reasons. It noted it was unable to test whether the applicant had any knowledge of the philosophy of Falun Gong (Falun Dafa) or of the exercises which are compulsory for all members, nor if she was a bona fide adherent (CB 71.10 to CB 72.2).
ii)She attended Falun Gong activities in Beijing on several occasions and this resulted in her being detained in 2000. It noted it was unable to explore with the applicant further details about her visits to Beijing, their purpose, length and outcomes (CB 72.3).
iii)She was detained in Beijing and this resulted in “mental illness”. The Tribunal noted it would have liked to explore these claims further and seek medical advice, if necessary, on her state of mind as well as information about the length of detention and what happened to her during that period (CB 72.4).
iv)She had lost her employment after detention and found only casual work resulting in poverty. The Tribunal noted that she also claimed she had continuous employment until her departure from China. The Tribunal further noted it would have liked to examine these claims in greater detail (CB 72.5 to CB 72.6).
4)As the applicant did not attend a hearing before the Tribunal, it was unable to explore any of the above issues which were pertinent to her claim. Consequently it was not satisfied that the applicant had a well founded fear of persecution for a Convention reason on her return to China, either now or in the foreseeable future (CB 72.8 to CB 72.9).
Having considered the evidence as a whole, the Tribunal was not satisfied the applicant was a person who satisfied the criterion under s.36(2) of the Migration Act 1958 (Cth) (“the Act”) for a protection visa and therefore affirmed the decision not to grant a protection visa (CB 72.10 to CB 73.1).
Applicant’s claims before the Court
The applicant’s original application to the Court, filed on 18 January 2006, sought review of the Tribunal’s decision on the following grounds:
“(1)The Tribunal misunderstood my claims, the Tribunal officer did not know China very well. In China, even if you are detained, you still belong to the company work for (sic), and you residential address (sic) should still be the same as that of “Hu Kou”, should not be put (sic) the residential address as “detention”, please refer to “According to her visa application she was continually employed up to the time of her departure for Australia, while in her statement she claimed that after 2000 following an unspecified period of detention in Beijing she was mentally unwell and unable to work.” Because of the misunderstanding, the Tribunal easily refused my application without going through the necessary consideration procedure.”
“(2)The Tribunal’s satisfaction that I am not a refugee is not supported by evidence.”
The applicant’s amended application, filed on 21 April 2006, sought review of the Tribunal’s decision in this Court on the following ground (which was particularised):
“(1) The Tribunal failed to carry out its statutory duty.”
Hearing before the Court
At the hearing before me, the applicant was unrepresented and appeared with the assistance of an interpreter in the Mandarin language. Ms. V. McWilliam appeared for the first respondent.
The applicant, when given the opportunity to address the Court, stated that she did not know what to say. She was unable to assist the Court further to what had been put in her application.
Failure to attend at Tribunal hearing
Both the date of application for review to the Tribunal, and the date of the Tribunal’s decision were after the introduction of s.422B to the Act. This makes the provisions set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8]).
Relevantly, s.425 of the Act provides that the Tribunal must invite the applicant to appear before it. Section 425A provides for other matters relevant to the notice to appear. Section 426A provides discretion to the Tribunal to proceed to make its decision if the applicant fails to appear at the scheduled time and place for the hearing.
The applicant’s application for review before the Tribunal is reproduced at CB 49 to CB 52. On 20 October 2005, the Tribunal wrote to the applicant advising that on the information before it, it was unable to make a favourable decision and invited her to attend a hearing to give evidence and present arguments in support of her claims. It further advised that if she did not attend, then the Tribunal could make a decision without further notice. The letter provided a time, date and place for the hearing (see CB 56 to CB 57). It was addressed to the applicant at the applicant’s postal address (“address for correspondence”) (CB 51). The applicant replied by returning to the Tribunal a completed “Response to Hearing Invitation” form, on
27 October 2005. She accepted the invitation to the hearing (CB 58 to CB 59). However, the applicant did not attend the scheduled hearing (CB 62).
The Tribunal was satisfied that the applicant had been invited to attend the hearing, and had been informed of the scheduled date, time and place, but did not appear, nor did she contact the Tribunal to explain her failure to attend. In these circumstances, the Tribunal, pursuant to s.426A of the Act, proceeded to make its decision on the review without taking further action to enable the applicant to appear before it (CB 70).
In Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73, the Full Court found that the Tribunal has the power to proceed with an application pursuant to s.426A of the Act where a hearing invitation has been properly given under the Act. In this regard, I note that with reference to s.425A(3) of the Act (the effect of which is that a period of notice is required in relation to an invitation to appear before the Tribunal, and this period is prescribed by Regulation 4.35D of the Migration Regulations 1994 (“the Regulations”)) the Tribunal complied with the statutory notice period. Pursuant to Regulation 4.35D, the notice period starts when the applicant receives notice of the invitation to appear before the Tribunal (relevantly, by virtue of s.441A(4) and s.441C(4) of the Act, this is taken to have occurred 7 working days after the date of the letter) and ends at the end of 14 days after the day on which the notice is received. The Tribunal’s letter of invitation to the hearing was dated 20 October 2005 and was sent to the applicant’s address for correspondence. The letter complied with the requirements of s.425A of the Act. The hearing was scheduled for 18 November 2005 and therefore the Tribunal complied with the prescribed period of notice.
In all, for the reasons set out above, the Tribunal complied with its relevant obligations in inviting the applicant to a hearing. Despite initially indicating that she would attend the hearing, the applicant did not attend. No request for an adjournment was made to the Tribunal. Nor did the applicant provided any explanation to the Tribunal for her failure to attend in the period between the date of the scheduled hearing (18 November 2005) and the date of the handing down of the decision (20 December 2005). In all the circumstances, the Tribunal was entitled to proceed to making the decision pursuant to s.426A of the Act.
Basis for the Tribunal’s decision
Having decided to exercise its discretion in this regard, the Tribunal proceeded to consider what was before it. Section 65 of the Act provides that a protection visa must only be granted if (in effect) the decision maker is satisfied, amongst other things, that the applicant relevantly satisfies at least the requirement as set out in s.36(2) of the Act. That is, in effect, that the applicant meets the definition of “refugee” contained in Article 1A(2) of the Refugees Convention. On what was put before the Tribunal, it could not be satisfied that the applicant met the requisite criterion for the grant of a protection visa. No jurisdictional error is revealed merely because the facts that were put forward by the applicant did not cause the Tribunal to be satisfied (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VASF”)).
On what is before the Court, any plain reading of the Tribunal’s decision record reveals that the Tribunal was unable to reach, on what was before it, the requisite level of satisfaction (s.65 of the Act) that the applicant met the criterion in s.36(2) of the Act (see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 at [15] to [16] and NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5]).
I also note further that in VSAF 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]:
“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.”
The Tribunal could not reach the requisite level of satisfaction. In this regard I note that similarly, where an applicant failed to appear at a hearing before the Tribunal, having been put on notice that the Tribunal was not able to be satisfied on the material before it, that a Full Federal Court has described rejection of the application as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (“NAVX”) at [5]. The applicant was put on notice as to the Tribunal's preliminary view and given the opportunity to provide further material by way of oral submissions, or written evidence, at a hearing. The applicant did not avail herself of this opportunity. No explanation for this was given to the Tribunal. (For that matter, no attempt at explanation was made to this Court). In these circumstances the applicant can base no complaint on the fact that on what was before it, the Tribunal was not able to be satisfied.
In SZFVG v Minister for Immigration & Multicultural Affairs [2006] FCA 1179 Edmonds J., with reference to NAVX, stated at [11]:
“In similar circumstances, where an applicant failed to appear before the Tribunal in the face of a letter (as here) putting the applicant on notice that the Tribunal was not prepared to make a decision in his favour upon the material already available (AB 41 – 42), the rejection of the application was the ‘inevitable consequence’ of the appellant’s non-attendance: NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]. As a practical matter, this must be so, unless the Tribunal changes its evaluation of the same material already presented.”
The applicant’s complaint in her originating application that the Tribunal’s satisfaction that she was not a refugee was not supported by evidence. The Tribunal did not reach a level of satisfaction that she was not a refugee. Nor was it required to do so. The Tribunal was not satisfied that she met the definition of refugee. This is the level of satisfaction required by s.565 and s.536(2) of the Act.
Section 424A – Tribunal’s “failure to carry out its statutory duty”
In the particulars to the amended application to the Court, the applicant complains that the Tribunal did not comply with its obligations pursuant to s.424A of the Act. The applicant refers to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) and Al Shamry v Minister for Immigration & Multicultural & Indigenous Affairs[2000] FCA 1679 ("Al Shamry")
As I have already noted, the Tribunal’s decision turned on its inability to be satisfied, given the applicant’s failure to attend the hearing scheduled before it, on what was before it, that, in effect, the applicant met the definition of refugee.
It appears the applicant’s reference to, and extracts from, SAAP and Al Shamry is an attempt to argue, with the illumination in mind provided by the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2, that the Tribunal, in making its decision, relied on information not given to the Tribunal for the purposes of the application for review and which fell within the obligation set out in s.424A(1). This appears to be information “contained in the First Respondent’s file”. With reference to SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 (“SZEZI”) per Allsop J., particularly at [28] to [30], and followed in SZFXC v Minister for Immigration and Citizenship [2007] FCA 381 by Collier J. at [13], a matter on appeal from this Court, this complaint would not succeed.
In SZEZI, the reason for the Tribunal’s decision, as in the case before me, was that the Tribunal, on what was before it, was unable to reach the requisite level of satisfaction such that a protection visa “must” be granted. Allsop J. distinguished the situation between a Tribunal relying on information, which if not caught within the exceptions contained in s.424A(3) of the Act, falls within the obligations in s.424A(1) and (2) of the Act, and the situation where a Tribunal’s decision is based on its inability to reach a requisite level of satisfaction that the applicant had a well founded fear because of inadequacies in the information provided or where there was an “absence of detail and extrinsic explanation which had been invited”. In these circumstances it is not the information that is the reason for the decision, but “the lack of requested further assistance and explanation…” (SZEZI at [29]). This is what has occurred in the case before me. The Tribunal’s reason for its decision, its analysis, set out in its decision record, was that it could not reach the requisite level of satisfaction on the “lack of evidence” before it.
In this regard, I also note SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 at [23]:
“As was said by Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16], by Bennett J in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [17] – [19] and [28] – [33] and by Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29], the Tribunal was identifying the deficiencies or inadequacies in the appellant’s case. It was not relying on information communicated to or received by the Tribunal but setting out its thought processes. There was no information that the Tribunal was obliged to give to the appellant by reason of s.424A(1) (VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 206 ALR 471 at [24]).”
Nor does the Tribunal breach s.424A of the Act merely by restating the applicant’s claims. The provisions of s.424A(1) of the Act require that, as a part of its decision, it relies on information.
The Tribunal’s reason for rejecting the applicant’s claims was based on what was before it. The “lack of evidence” (CB 71.10) and the failure to attend the hearing left it unable to explore the claims and consequently could not reach the requisite level of satisfaction. (CB 42.8). I do not see in all the circumstances that the Tribunal breached the requirements of s.424A of the Act.
In all, I cannot see jurisdictional error in the Tribunal’s decision. The application is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
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