SZIOC v Minister for Immigration - [2007] FMCA 1381

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIOC v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1381

MIGRATION – Review of Refugee Review Tribunal decision – applicant did not attend Tribunal hearing – Tribunal did not deny applicant opportunity to argue his case before Tribunal – applicant claimed he was fearful of attending Tribunal hearing – no evidence that applicant informed Tribunal of claimed fear – Tribunal complied with its statutory obligations and at general law – no jurisdictional error – application dismissed.

Migration Act 1958, ss.426A, 422B, 425, 426, 425A(3), 441A(4), 441C(4), 425A, 36(2), 424A.

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
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287

Applicant:

SZIOC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 876 of 2006

Judgment of:

Nicholls FM

Hearing date:

31 July 2007

Date of Last Submission:

31 July 2007

Delivered at:

Sydney

Delivered on:

31 July 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms N. Johnson

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The reference to the first respondent 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 $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 876 of 2006

SZIOC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore: Revised from Transcript)

This is an application filed 24 March 2006 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 19 January 2006 and handed down on 9 February 2006, affirming the decision of a delegate of the respondent Minister to refuse to grant a protection visa to the applicant.
I also have before me the applicant's affidavit of 24 March 2006 annexing the Tribunal's decision record and I also took into evidence the affidavit of Jonathan Willoughby-Thomas of 16 March 2007, a District Registrar of the Tribunal, also with annexures.

Background

The applicant is a citizen of the People’s Republic of China and first arrived in Australia on 16 June 2002 and most recently arrived in Australia on 9 February 2004. The applicant lodged an application for a protection visa on 11 October 2005. On 14 October 2005, a delegate of the respondent Minister refused the application.
On 21 November 2005, the applicant applied to the Tribunal for review of the decision of the delegate of the Minister. On 5 December 2005, the Tribunal wrote to the applicant and advised the applicant that it was unable to make a favourable decision on the material that was before it and invited the applicant to appear before it on 18 January 2006 to give oral evidence and to make submissions in support of his application for review (reproduced at Court Book (“CB”) CB 46 to CB 47).
In its decision record (reproduced at CB 54 to CB 62), the Tribunal notes that the “Applicant advised the Tribunal that he wanted to give oral evidence” but that the applicant did not attend the hearing, nor did he make contact with the Tribunal to explain his failure to attend (CB 59.4). I note this is also relevantly at annexure A to the affidavit of Mr Willoughby-Thomas, which also provides evidence relevant to the dispatch of this letter and other material that was included with it.
I further note that earlier, on 21 November 2005, the Tribunal had written to the applicant following receipt of the application for review setting out for the applicant the process that the Tribunal would employ in dealing with his application, and this letter is reproduced at (CB 44 and CB 45), and in particular this letter emphasises the importance of a hearing in the process of the Tribunal's consideration of the applicant's claims.
From the material in the Court Book, it appears the applicant responded to the Tribunal's invitation by completing a response to hearing invitation form and indicating in that form that he did wish to attend the hearing (CB 48). Nonetheless, the material shows that the applicant did not attend the hearing and it is not apparent that the applicant provided to the Tribunal any explanation for the failure to attend, nor is it apparent from the material that he made any contact with the Tribunal to explain this failure to attend.
The Tribunal's decision record is before the Court both by way of annexure to the applicant's affidavit of 24 March 2006 and is also reproduced at CB 54 to CB 61. The Tribunal's decision record reveals that the Tribunal noted that it had advised the applicant that it was unable to make a favourable decision and gave the applicant the opportunity of attending a hearing, that the applicant did not attend the hearing, and that the failure to attend was unexplained before the Tribunal. Further, that pursuant to s.426A of the Act the Tribunal decided to make a decision without taking any further action to enable the applicant to appear before it.
The Tribunal made the following findings under the heading “Findings and Reasons”:
1)The material before it contained “brief, vague and incomplete assertions in support of the Applicant’s claims for refugee status” (CB 60.3).
2)It had not had “the opportunity, through a hearing or otherwise, to obtain further information to determine the veracity of his claims” (CB 603).
3)It had insufficient information as to the applicant’s family, residential, financial and personal circumstances, in either China or Australia, insofar as those circumstances were relevant to the applicant’s refugee claim (CB 60.4).
4)It had insufficient information as to the details of the applicant’s adherence to Falun Gong, including the nature of his commitment, his mother’s practice of Falun Gong and the applicant’s familiarity with the precepts and practices of Falun Gong (CB 60.4).
5)It had insufficient information as to the adverse attention paid by authorities in China to the applicant and his family, including any particulars of the detention and monitoring of his mother, the circumstances in which his family had been threatened by a PSB officer, and the details of any evidence the PSB officer claimed to have of the applicant’s adherence to Falun Gong (CB 60.5).
6)It had insufficient information as to the applicant’s travel from China that would indicate that the applicant was “of adverse interest to local authorities,” including any information in relation to the application for an Australian visa, travel documents, ticketing and transport (CB 60.6).
7)It had insufficient information as to the applicant’s current practice of Falun Gong and his involvement with any relevant groups in Australia (CB 60.7).
8)It had insufficient information as to the circumstances of the applicant’s lodgement of an application for a protection visa (CB 60.8).
9)It had insufficient information as to the applicant’s fears were he to return to China, in particular in relation to his practice of Falun Gong (CB 60.9).
10)On the limited information before it, it was “not satisfied” that the applicant was a practitioner of Falun Gong or that his mother was a practitioner of Falun Gong (CB 60.10).
11)It was “not satisfied” that the applicant “has been the subject of adverse attention” for reasons relating to his claimed practice of Falun Gong or any other reason (CB 60.10 to CB 61.1).
On 24 March 2006, the applicant filed an application which put forward the following grounds:
“1. I wasn’t given a fair opportunity to argue with the case officer about my application.
RRT officer failed to put his questions to me before the hearing so that I could prepare for it.
2. RRT officer failed to assure me that I would be safe to attend the hearing. As the fear of being detained by Immigration Department officer and put back to detention (sic) and the experience my mother had experienced in China all left me strong fear (sic).
I have been suffering depression after receiving the letter and lost almost 10 kilos now.”
At the hearing before me today the applicant appeared without representation. He was assisted by an interpreter in the Mandarin language, and Ms Johnson appeared for the respondent.
The applicant submitted to the Court that he did not go to the Tribunal hearing. He gave the Court a lengthy background relating to his fears as to his situation in China and difficulties that he had encountered with the Minister's Department relating to a student visa that he had previously held, and the cancellation of that visa which he alleged had not been dealt with carefully by the Minister's Department. The applicant also submitted that at some point he had been, in his words, located by the Immigration Department, that he had applied for a protection visa after having applied for a bridging visa, and that he was concerned to continue his studies in Australia and also concerned particularly after having received information from his mother that he should not go back to China.
The applicant explained that he did receive the letter of invitation to hearing from the Tribunal but he was afraid that he would be arrested, which I understood to mean that he would be detained by the Minister's Department, and that his personal experience was that he had been treated unfairly in relation to his student visa and that this caused him concern if he were to attend the Tribunal hearing. Further, that this, together with his concern that he would be arrested or detained, was his explanation now for not attending the hearing. The applicant confirmed that he had not contacted the Tribunal to convey any of his concerns to it and that this was also in part due to his lack of understanding as to, as he described it, the correct channels through which he could go to convey his fears.
Looking specifically at the grounds of complaint as raised by the applicant, the first ground is really an assertion that the applicant was denied an opportunity to argue his case before the Tribunal. 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.
On 21 November 2005, the Tribunal wrote to the applicant and advised the applicant of the process by which it was going to conduct the review of his application (reproduced at CB 44 to CB 45). In particular, that letter emphasised the importance of the hearing and further advised the applicant of the opportunity that the hearing afforded him to provide further information to the Tribunal. The letter was addressed to the mailing address provided by the applicant in his application for review (Section D of the application for review) (CB 42.5).
On 5 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 his claim (reproduced at CB 46 to CB 47). It further advised that if he did not attend, the Tribunal could make a decision without further notice. The letter provided a time, date and place for the hearing. Again the letter was addressed to the applicant's address for correspondence.
On 12 December 2005, the Tribunal received the applicant’s response to hearing invitation form (reproduced at CB 48). The applicant indicated that he wanted to attend the hearing and that he would require the assistance of an interpreter in the Mandarin language (CB 48.5 to CB 48.6). The applicant did not attend the hearing and, pursuant to s.426A, the Tribunal proceeded to make its decision on review “without taking any further action to enable the Applicant to appear before it” (CB 59.4).
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 5 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 18 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.
There is nothing in the material before the Court to show that either of the two letters sent by the Tribunal were not received by the applicant and indeed the applicant confirmed to the Court today that the letter of invitation to the hearing had been received by him. In all the 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]).
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 himself of this opportunity. Importantly, no explanation for this was given to the Tribunal. 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.
The applicant's explanation before the Court now, that he was fearful of attending the Tribunal hearing both because of his previous experience with the Minister's Department, and because of his fear of being subsequently detained, may indeed have been based on the applicant's perceptions of his previous dealings with the Minister's Department. The Court makes no comment, adverse or otherwise, in this regard, but there is no evidence before the Court that any of these fears, or that his concerns were put to the Tribunal. Indeed, the applicant confirmed to the Court that he made no contact with the Tribunal. In these circumstances I cannot see that any legal error, let alone jurisdictional error, can be discerned in the Tribunal's decision to proceed to making a decision in this case pursuant to s.426A of the Act.
Before the Court today, the applicant also indicated that he lacked capacity to communicate his fears to the Tribunal and submitted to the Court that in completing the response to hearing invitation form, he had obtained the assistance of a friend.
While the fact remains that no communication was made to the Tribunal and that this ultimately is relevant to showing that no error was made by the Tribunal in proceeding the way that it did, I should note that I have some difficulty in accepting this explanation by the applicant in circumstances where either on his own initiative or otherwise he was able to make an application for review to the Tribunal. It would have been expected that if he had encountered difficulties in feeling that he could not attend the Tribunal hearing, that in the same way that he had communicated to the Tribunal his application for review, he would have similarly been able to communicate to the Tribunal his fears of attending the hearing. But whatever the situation in that regard, what remains is that the Tribunal could only proceed on what had been put before it, and on what had been put before it, both in terms of the exercise of its discretion pursuant to s.426A of the Act, and in terms of its ultimate conclusion, that it could not be satisfied that a protection visa should be granted to the applicant. I can discern no jurisdictional error on the part of the Tribunal.
The applicant also complains in his application that the Tribunal failed to provide him in advance of the hearing with the questions that it proposed to ask him so that he could properly prepare for the hearing. The applicant did not appear to press that issue before the Court today. But nonetheless, in all the circumstances before the Court in this case I can see no obligation on the Tribunal to have put any set of proposed questions to the applicant prior to the hearing. While the relevant statutory regime, in particular, s.424A of the Act, obliges the Tribunal to put certain information to the applicant in writing for comment, the Tribunal's proposed questions are not as of themselves information as that term is understood in the context of s.424A of the Act.

Essentially, there is no obligation on the Tribunal, and I have to say either statutory or, in my view, even if they were to apply as against the principles of procedural fairness at general law, for the Tribunal to put to the applicant a set of questions in advance of the hearing. The applicant was invited to come to the hearing for the express purpose of strengthening and pursuing his claims to protection in Australia. I note that in relevant letters sent to him the applicant was also invited to make submissions in writing and indeed to provide any other material relevant to his claims. In all, the applicant was given the opportunity to advance his case before the Tribunal and I cannot see that the Tribunal failed in its relevant obligations within the relevant statutory context or, with regard to relevant principles at general law.
I should also note that the applicant in his application makes reference to the Tribunal having failed to ensure that he would be safe to attend the hearing. In one sense it must be said that this is an incomprehensible complaint for the applicant to make. The applicant clearly submits that he told nothing whatsoever of his fears to the Tribunal and yet at the same time complains that the Tribunal failed to ensure that he would be safe to attend the hearing. It is difficult to conceive of how the Tribunal could have ensured against any fears that the applicant may be said to have had, if the Tribunal was totally unaware of those fears, because the applicant acted not to tell it. This complaint also does not reveal jurisdictional error on the part of the Tribunal.
The applicant, during the course of submissions before the Court, made some complaint about the panel adviser provided by the Court pursuant to the Court's legal advice scheme made available to those applicants before the Court who are seeking review of a Tribunal decision. The applicant's complaint was that he had been unable to contact the panel adviser. While of course there is no right of the applicant to insist on the Court providing any free legal advice to him, the information in the Court file reveals that a member on the panel of the Court's legal advice scheme was engaged under the scheme and from the report from that adviser, that the applicant failed to attend at a scheduled date of consultation, being 7 June 2006, but that nonetheless the adviser, who had been in possession of the Court Book, had provided written advice to the applicant dated 27 June 2006.
The applicant subsequently submitted that he had not received any such advice. It must be said none of this reveals jurisdictional error on the part of the Tribunal obviously, but in all the circumstances I am satisfied that the applicant was given the opportunity to access the Court's legal advice scheme and that it was appropriate for the hearing to proceed today in the manner that it did notwithstanding the applicant's claim that he had not received the legal advice.
I should also note, as I said to the applicant during the course of the hearing, that it may indeed be that he feels some sense of grievance in the way that he had been dealt with by the Minister's Department in relation to his student visa and the cancellation of that visa. First, it should be noted that beyond the applicant's reliance now on those dealings with the Minister's Department as the explanation for his fear of attending the Tribunal hearing, that is, the partial explanation, none of this is relevant beyond that to the proceedings before this Court today. Nor is it appropriate for the Court to make any comment beyond saying that if the applicant feels truly aggrieved then it is open to him to address that matter in other ways with the Minister for Immigration but it does not reveal jurisdictional error on the part of the Tribunal.
In all therefore, as I explained to the applicant at the hearing, I cannot see that the Tribunal failed in its legal obligations. I cannot discern jurisdictional error in what the Tribunal has done, nor in its decision, and on this basis the application to the Court is dismissed.
It is appropriate that an order for costs be made in this matter and having regard to the work that has been done by the Minister's legal representatives, having regard also by way of guidance to the relevant schedule to the Federal Magistrates Court Rules 2001, I am satisfied that an amount of $3000 is a reasonable amount, noting of course that under the schedule the Minister could have asked for $5000, so I will make the order in the terms sought by the Minister.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Dawnie Lam

Date: 15 August 2007