SZIMV v Minister for Immigration
[2007] FMCA 1054
•4 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIMV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1054 |
| MIGRATION – Refugee – Review of Refugee Review Tribunal decision – 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 SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 |
| Applicant: | SZIMV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 761 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 June 2007 |
| Date of last submission: | 29 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. Z. McDonald |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application is dismissed.
The applicant pay the first respondent's costs set in the amount of $1900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 761 of 2006
| SZIMV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore: Revised from Transcript)
I have before me an application filed in this Court on 14 March 2006 and amended on 4 July 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 24 January 2006 and handed down on 16 February 2006, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
The applicant is a citizen of the People's Republic of China who arrived in Australia on 30 September 2005. She lodged an application for a protection visa with the first respondent's department on 5 October 2005. On 18 November 2005 a delegate of the respondent Minister refused the grant of a protection visa and on 19 December 2005 the applicant applied for review of that decision. The applicant's claims to protection are set out in her application to the first respondent's Department (reproduced in the Court Book (“CB”) at CB 1 to CB 26), in particular in a statement reproduced at CB 27, and in her application for review to the Tribunal at CB 39 to CB 42.
The applicant's claims were that she was a senior member of Falun Gong and that she set up a branch of Falun Gong in 1996. This was before the authorities banned Falun Gong in 1999. She claimed that she encouraged people in her village to overcome their problems by practising Falun Gong and further claimed that she was detained for two days in 2001 because she tried to approach the Chinese government to be allowed to practise Falun Gong. She also claimed that at that time she was not allowed to stay with her son and in early 2005 she was again investigated by the police. She claims in August 2005, after her home was searched, she realised she had to leave China for her protection.
The Tribunal's “Findings and Reasons” are set out in its decision record (CB 56 and CB 57). The Tribunal found:
1)When broad allegations are made, the Tribunal hearing is the opportunity for the applicant to provide additional information about their claims (CB 56.3).
2)The applicant was put on notice that the Tribunal could not make a favourable decision and her failure to attend the hearing meant that it did not have additional information or the opportunity to explore the veracity of her claims (CB 56.4).
3)A number of relevant questions remained unanswered. The Tribunal listed those questions. (CB 56.5 to CB 56.10)
4)The Tribunal could not be satisfied under the circumstances about the applicant's claims (CB 57.2).
Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant was a person who met the criterion pursuant to s.36(2) of the Migration Act 1958 (Cth) (“the Act”) for a protection visa. It therefore affirmed the decision not to grant a protection visa to the applicant.
The applicant has put an original application before this Court, filed on 14 March 2006. I note the applicant's grounds as stated in that application are:
“1. The Tribunal failed to provide particulars of the information that was a reason, or a part of the reason for affirming the decision (Section 424A)
2. The Tribunal had bias against me and failed to consider my claims.
3. The tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief…”
The applicant's amended application, filed on 4 July 2006, sought review of the Tribunal's decision on the following ground, which was particularised. The ground was that: “the Tribunal failed to carry out its statutory duty”. With regard to what is set out under the particulars, this is an allegation that the Tribunal breached s.424A of the Act.
At the hearing before the Court today, the applicant was unrepresented and appeared with the assistance of an interpreter in the Mandarin language. Ms. Z. McDonald appeared for the first respondent. The applicant was unable to assist the Court in any way whatsoever in support of her application to it. Even after the Court explained the relevant issues for consideration, the applicant maintained that she was unable to respond and said, “I don’t know”. When specifically asked why she did not attend the Tribunal hearing the applicant answered that she did not know about it. Although the applicant stated that she had not received any assistance in preparing her application to the Court, given what is set out in particular in the amended application, the applicant was unable to explain to the Court why she was not in a position to further assist in her application. In all, therefore, the Court could only look to the material that has been put before it by the applicant but was unable to discern jurisdictional error either as asserted in that material or otherwise.
In relation to the applicant's failure to attend at the 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 of 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 39 to CB 42. On 19 December 2005, the Tribunal wrote to the applicant and advised the applicant of the process by which it was going to conduct the review of her application. In particular, that letter emphasised the importance of the hearing and further advised the applicant of the opportunity that the hearing provided to her to provide further information to the Tribunal (CB 43 to CB 44), and was addressed to the mailing address provided by the applicant in her application for review (“address for correspondence”) (CB 41.1).
On 22 December 2005, the Tribunal again wrote to the applicant and advised that on the information before it, it was unable to make a favourable decision and invited the applicant to attend a hearing to give evidence and present arguments in support of her claim. It further advised that if she did not attend, then the Tribunal could make a decision without further notice. The letter provided a time, a date and a place for the hearing (CB 45 to CB 46). Again the letter was addressed to the applicant's address for correspondence.
The applicant was invited to complete an enclosed response to hearing invitation form to advise whether she wished to attend the hearing. No response was received from the applicant (CB 47). Subsequently, the applicant did not attend the scheduled hearing. As I have already stated, the Tribunal found that the applicant had been put on notice that the Tribunal was unable to make a favourable decision and that the applicant's failure to attend the opportunity provided by way of a hearing meant that no further information was provided. The Tribunal was therefore deprived of the opportunity to explore her claims. Plainly, therefore, the Tribunal proceeded pursuant to s.426A of the Act to make a decision in the applicant's case on what had been put before it.
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 22 December 2005, and was sent to the applicant's address for correspondence. The letter complied with the requirements of s.425A of the Act as the hearing was scheduled for 24 January 2006. The Tribunal therefore complied with the prescribed period of notice. In all, therefore, for the reasons set out above, the Tribunal complied with its relevant obligations in inviting the applicant to a hearing.
The invitation was sent to the applicant's address for correspondence. There is no evidence before the Court that it was returned as undeliverable and the applicant, without explanation to the Tribunal, did not attend the hearing. I note in particular in this regard that by letter dated 30 January 2006 the Tribunal wrote to the applicant, again by letter sent to her mailing address, and advised that a decision was to be handed down in her case on 16 February 2006 (CB 49). Again there is no evidence before the Court that this letter was returned as undeliverable to the Tribunal and the applicant again made no attempt to contact the Tribunal to explain her failure to attend, let alone to seek any adjournment of the Tribunal's hearing. In all these circumstances, the Tribunal was entitled to proceed to make its decision pursuant to s.426A of the Act.
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 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 that the applicant was a refugee. As the Minister submitted in written submissions, a legislative regime which requires a positive state of satisfaction as to whether protection obligations exists mandates a refusal decision if that state of satisfaction is not reached. (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 where the Court referred to the Full Federal Court’s decision in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 (“VNAA”) 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.
When pressed before the Court today, the applicant stated that she did not receive the Tribunal's letter. Despite opportunity, the applicant put nothing further to the Court. It is clear that the Tribunal complied with its statutory obligation and, as was said in VNAA, the Tribunal was authorised to proceed to decide the review in the applicant's absence, even if the applicant's failure to attend was through no fault of her own. In any event, the applicant made no statement to the Court that she did not receive the letters of 19 December 2005 or 30 January 2006.
In the particulars to the amended application put before 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").
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.
On this same point, I also note what was said by Bennett J. in 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 claims in its decision record. The provisions of s.424A(1) of the Act require that the Tribunal put to the applicant, in writing, information on which it relies at last as a part of its decision. In the case before me, merely setting out the applicant’s claims was clearly in that sense, not a part of the Tribunal’s reason for affirming the decision under review. The Tribunal’s reason for rejecting the applicant's claims was based on the lack of evidence and the failure of the applicant to attend the hearing to enable the Tribunal to explore the claims. In all the circumstances, therefore, I do not see that the Tribunal breached its obligation pursuant to s.424A of the Act.
Given that the applicant was unrepresented before me today, I also turn to consider whether the matters raised in the original application could assist her before this Court. I have already dealt with the complaint concerning s.424A of the Act. The applicant also complains that the Tribunal was biased against her and did not consider her claims. The relevant authorities state when the complaint is bias, or even the apprehension of bias, it requires evidence to support such claims before such claims can be established. With reference to relevant authorities, Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, there is no evidence whatsoever before the Court now that either the relevant test for bias or the apprehension of bias can be made out. The fact is that the Tribunal did consider the applicant's claims to the extent that they were put before it. Its finding that it could not reach the requisite level of satisfaction on what had been put before it, does not reveal bias on the part of the Tribunal. Nor, in all the circumstances, is there a lack of rational or logical foundation for the Tribunal's finding.
The applicant bears some obligation to put her claims before the Tribunal such that it could reach the requisite level of satisfaction. It was not irrational or illogical of the Tribunal to find that it could not be so satisfied. In the case before me now the Tribunal gave reasons for its lack of satisfaction. These reveal no lack of logic.
In all, therefore, I cannot discern jurisdictional error in the Tribunal's decision either on the basis as put forward by the applicant's applications or otherwise. The application is therefore dismissed.
It is appropriate that an order for costs be made. There is nothing in the material before me that would argue against such an order being made. Despite opportunity after the matter was explained to her, the applicant put nothing to the Court in this regard. So I will make such an order. As the amount of $1900, again the applicant put nothing before the Court to argue that this amount was unreasonable. While I take the view that I am not bound by what is in the Schedule to the Federal Magistrates Court Rules 2001 (“the Rules”) in this regard, I do note Ms. McDonald's submission that the amount sought is less than the amount set out relevantly in the Schedule to the Rules. In any event, I am satisfied that this is a reasonable amount, bearing in mind the work done by the Minister's legal representatives in responding to the applicant's application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 4 July 2007
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