SZIXH v Minister for Immigration
[2006] FMCA 1690
•18 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIXH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1690 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Christian citizen of the People’s Republic of China – failure to attend Tribunal hearing – claim requested postponement of hearing due to illness – no evidence of request or illness – decision made on the papers – substantive justice – allegation of bias – further investigations – no right to free legal advice – no jurisdictional error – privative clause decision – application dismissed. |
| Migration Act 1958 (Cth), s.426A |
| Abebe v Commonwealth of Australia; Re Minister for Immigration & Multicultural Affairs (1999) 197 CLR 510 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 NAVXv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 143 FCR 434 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 SZECIv Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1201 SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 |
| Applicant: | SZIXH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1598 of 2006 |
| Judgment of: | Mowbray FM |
| Hearing date: | 18 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Advocate for the First Respondent: | Ms A Nesbitt |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
ORDERS
The first respondent’s name in these proceedings be amended to Minister for Immigration & Multicultural Affairs.
The Migration Review Tribunal be removed as a party to these proceedings.
The application filed on 5 June 2006 be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1598 OF 2006
| SZIXH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal signed on 19 April 2006 and handed down on 11 May 2006.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 5 December 2005. He lodged an application for a protection visa on 13 December 2005. That application was refused by a delegate of the Minister on 16 February 2006. On 13 March 2006 the applicant lodged an application for review with the Tribunal.
Claims before the Department and the Tribunal
The applicant's claims centred on his concerns as a Christian living in China. These claims are set out in his statement to the Department dated 8 December 2005 and reproduced in the Court Book on pages
1 and 2. He briefly amplified these claims in his response to the delegate’s decision in a statement dated 6 March 2006 and reproduced in the Court Book at page 42.The applicant says he fears persecution from the authorities in the People’s Republic of China because he practised Christianity and was a member of an underground church. He said in his statement of
8 December 2005 that:As Christians are mistreated by the authorities back in China, we can only secret gathering at some members' home.
He claims that in November 2005 the police raided a religious gathering at one of these homes and that he was put in detention with the others. He says he was physically tortured and denied food and forced to work. With the help of friends he was later released by the police.
As he continued to spread the Gospel, a member told him the police still intended to arrest and imprison him. He consequently went into hiding at a home of a friend. The police went to his home several times with an arrest warrant intending to arrest him. With the help of religious friends he was able to flee to Australia.
Tribunal consideration
The applicant was advised by the Tribunal that he may be invited to a hearing and why that hearing would be important. This was in a letter to him on 14 March 2006.
On 23 March 2006 he was invited to a hearing on Tuesday 18 April 2006. He did not attend that hearing. In his affidavit sworn on 2 June 2006 and filed on 5 June 2006 he says:
The RRT invited me to give oral evidence and present arguments at a hearing. However, due in personal reasons I miss the hearing. I did send a letter to postpone my hearing one 14th April 2006, but I did not receive any letter other than the refuse letter.
Today from the bar table the applicant said that he could not attend the hearing because he was sick on that day. He sent his letter by post, but he could not remember on what date. He notes that the Tribunal denied that they received the letter.
As a consequence of the failure of the applicant to attend the hearing the Tribunal proceeded to make a decision on the papers. The reasons of the Tribunal for dismissing the application are accurately summarised in the first respondent's outline of submissions at [3 – 5]:
3. The Tribunal found that the applicant's claims were “vague and incomplete”: It found that it did not have the opportunity, through a hearing or otherwise, to obtain further information to determine the veracity of the applicant's claims and whether they established persecution within the meaning of the Convention and the Act such that the Tribunal could be satisfied the applicant met the criteria for recognition as a refugee.
4. The Tribunal outlined several matters on which it was unable to be satisfied that the applicant met the visa criteria. Those matters included details of the applicant's religious beliefs; details of the alleged harm which the applicant claimed to have suffered in the PRC; details of the applicant's passport and travel details; and further details on what the applicant feared may happen to him if he were to return to the PRC.
5. On the limited evidence before it and in circumstances where the applicant failed to attend the hearing, the Tribunal was not satisfied that the applicant was a Christian and a member of an underground church, that he was harmed in the past for reason of his religion or any other reason or that the applicant had a well founded fear of persecution. (References to Court Book pages have been omitted)
Issues
There are a number of issues or grounds that appear to be raised by the applicant in his amended application:
·the failure of the Tribunal to invite him to give oral evidence and present arguments at a hearing
·the Tribunal being required to do substantial justice
·bias
·an obligation on the Tribunal to investigate the matters and refer to resources about China and its democratic system
·concern about not receiving legal advice under the Legal Advice Scheme.
Consideration
I will now deal with each of these issues in turn.
Failure to invite the applicant to a hearing
The Tribunal sent a letter to the applicant on 23 March 2006 inviting him to attend a hearing on 18 April 2006. This letter indicated the importance of the hearing and that the Tribunal would only postpone the hearing for good reasons. If the applicant did not attend the hearing and the Tribunal did not postpone it, then the Tribunal could make a decision on the applicant's case without further notice.
It is not in dispute that the applicant did not attend the hearing on 18 April 2006. However the applicant says that he sent a letter by post to the Tribunal on 14 April 2006 saying that he was sick and that he would not be able to attend. The respondent points out that there is no evidence in support of the applicant's claim made in his affidavit. There is no evidence on the Tribunal file. There is no evidence from the Tribunal hearing record which was received into evidence today and marked as exhibit “R1”. That record records “No response, No show.”
The applicant has not tendered any copy of the letter that he says he sent to the Tribunal as evidence to the Court today. Furthermore the applicant has provided no medical evidence either to the Tribunal or to the Court.
On the basis of only his assertions and no evidence by the applicant that he was sick on that day – though I have evidence that he says he sent a letter – I am not persuaded that his claim that he requested a postponement from the Tribunal is made out. I have no evidence before me that he was sick and unable to attend.
The invitation the Tribunal sent on 23 March 2006 was validly given and complied with the statutory requirements. In these circumstances, by virtue of s.426A of the Migration Act 1958 the Tribunal was entitled to proceed to make a decision without hearing further from the applicant.
The Tribunal found that it could not be satisfied on a number of issues material to the claims before the Tribunal, such as details about the applicant’s:
·family
·residential, employment and financial circumstances
·religious beliefs and practices
·alleged harm suffered
·passport and travel details.
These were all matters on which the Tribunal would have had the opportunity to question the applicant had he attended the hearing.
The Tribunal was therefore obliged to reach the decision it did, which was to affirm the decision made by a delegate of the Minister to refuse the applicant a protection visa.
Such a decision was inevitable in the circumstances (NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 143 FCR 434, SZECIv Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1201 and NAVXv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287). No jurisdictional error is revealed from this approach.
Tribunal required to do substantive justice
The applicant further claims that the Tribunal is required to do substantial justice. He does not however give any detailed reasons why substantial justice was not provided in this case. There is no jurisdictional error here.
Bias
The amended application also refers to "some bias." No particulars are provided.
The courts have made clear that an allegation of bias is a serious one and it should not be lightly made. It must be clearly alleged and proved (Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749). The material before the Court does not provide any basis for a claim of bias.
Obligation on Tribunal to conduct further investigations
A further claim is made that there are obligations on the Tribunal to conduct further investigations, in particular:
To refer to resources about China and its democratic system.
Decisions of the High Court in matters such as Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 and Abebe v Commonwealth of Australia; Re Minister for Immigration & Multicultural Affairs (1999) 197 CLR 510 make it clear that while the Tribunal has a discretionary power to conduct further investigations it is under no duty to do so. In Abebe Gummow and Hayne JJ said at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Legal advice
The last claim by the applicant is one of unfairness because he says he did not receive the letter regarding legal advice from the Legal Advice Scheme. I have no evidence before me in relation to this particular matter. However procedural fairness does not necessitate access to the Legal Advice Scheme. As Gyles J said in SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4]:
… there is no right to free legal advice.
Conclusions
The applicant has put to me a number of grounds for setting aside the Tribunal decision. The principal one relates to his non-attendance at the Tribunal hearing. I have already indicated that I do not accept, on the evidence before me, that the factual claim he has made.
The Minister has submitted that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is clear the Tribunal was unable to reach a decision favourable to the applicant because of the limited evidence available to it on the critical issues.
These findings by the Tribunal and its conclusions were inevitable in view of the applicant's failure to attend the Tribunal hearing. I am satisfied the Tribunal made no legal error going to jurisdiction in coming to its decision.
In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers, the decision clearly related to the subject matter of the Migration Act 1958 and related to the powers conferred on the Tribunal. The decision of the Tribunal is a privative clause decision having regard to the High Court authority in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
In the circumstances the application must be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 18 January 2007
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