SZJPV v Minister for Immigration
[2007] FMCA 576
•2 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJPV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 576 |
| MIGRATION – Two reviews conducted by RRT – applicant invited to attend first review to give evidence and make submissions – no response or attendance – rejection of the application is the natural consequence of a failure to attend – remittal for determination according to law does not invalidate an invitation to attend – second RRT review – no new invitation to attend sent – new invitation not required. |
| Migration Act 1958 (Cth), ss.424A, 425, 425A, 441A, 474 |
| SZIGQ v Minister for Immigration & Citizenship [2007] FCA 328 Attorney-General (NSW) v Quin (1990) 170 CLR 1 |
| Applicant: | SZJPV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3191 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 28 March 2007 |
| Date of last submission: | 28 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr J. Mitchell |
| Solicitors for the Respondent: | Mr B. Cramer of Blake Dawson Waldron |
ORDERS
The application is dismissed pursuant to Rule 44.12(1)(a).
The name of the first respondent is amended to the Minister for Immigration and Citizenship.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3191 of 2007
| SZJPV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 1 November 2006 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 September 2006 and handed down on 19 October 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 23 September 1968 and claims to be from China and of Hanzhu ethnicity (“the Applicant”).
The applicant is married with two children.
The applicant arrived in Australia on 12 December 2004 on a business visa, which had been issued in Guangzhou on 25 November 2004.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 25 January 2005. In this application he claimed that he would be persecuted in China as he had breached China’s ‘one-child’ policy. The applicant claimed this was not intentional, as after the birth of his first child the Chinese authorities had forced the applicant’s wife to undergo a sterilisation procedure. That was not effective and his wife became pregnant again. They decided to keep the second child, but when the authorities found out about the pregnancy they tried to force the wife to have an abortion, and she was forced to leave the family home and go into hiding. After the child was born the family were punished and fined by the Family Planning Committee. He could not pay the fine in its entirety and claimed that at the end of 2003, the authorities stormed his house, taking anything of value, including crops. The applicant tried to raise his case with the authorities, but was detained for disrupting the official’s work. During this time the applicant met another man in the same position as himself and began protesting against the government (CB 26).
This application was refused by a delegate of the first respondent on
28 February 2005.
On 29 March 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. On 16 May 2005 the Tribunal wrote to the applicant inviting him to appear at the hearing to give oral evidence and present arguments. He was also advised in the letter that if he did not attend, a decision could be made in his absence (CB 68.4). No response was received. On 9 June 2005 a Tribunal hearing was held, which the applicant did not attend (CB 68). When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, the inevitable consequence was the rejection of the application, see SZIGQ v Minister for Immigration & Citizenship [2007] FCA 328 at para [4]. Pursuant to s.426A of the Act, the Tribunal made its decision without taking any further action to enable the applicant to appear before it. On 21 July 2005 the Tribunal handed down its decision, affirming the decision not to grant the applicant a protection visa.
The applicant applied for judicial review by the Court, and on
15 August 2006, Federal Magistrate Emmett made orders by consent quashing the decision of the Refugee Review Tribunal made on
28 June 2005 and handed down on 21 July 2005, and requiring the matter to be remitted to the Tribunal to be reviewed according to law (CB 53).
On 19 October 2006 the Tribunal handed down its decision, dated
28 September 2006, affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa. The applicant did not attend the hearing. In considering the applicant’s claims, the Tribunal found (CB 70.5 – CB 71.6) (emphasis added):
I accept that the applicant is a citizen of China.
The letter the Tribunal sent to the applicant raised with him the fact of his past failure to avail himself of the opportunity to provide oral evidence to the Tribunal in support of his application. In his reply, he does not mention this or provide any reason at all as to why he failed to reply to the Tribunal’s invitation or to attend the hearing to which he was invited by the Tribunal previously constituted. I believe that the Tribunal has discharged its obligation to enable the applicant to attend a hearing. In addition, for the reasons set out below, I do not consider that any useful purpose would be served by inviting him again to a hearing, in light of the applicant’s reply to the Tribunal’s letter.
The applicant, in his reply, has not addressed the possible implications which could be drawn from the fact that, in 2003, the applicant visited Cambodia for 4 months, returning voluntarily to China in October of that year. The fact that he did so indicates that he had the financial resources to do so and that, at the time he returned, he had no fear of persecution in China. It was also a strange time to be travelling, if his wife had just given birth to their second child and if he was trying unsuccessfully to raise the money to pay a resulting fine.
Neither has he addressed the possibility – particularly open to him as a farmer – of seeking permission to have a second child.
In the circumstances, I do not accept the applicant’s claims in their entirety. He lacks any credibility. I do not accept that his wife gave birth to their second child in June 2003. I do not therefore accept that he was fined for having a second child or that he was threatened with sterilisation.
Even if I were wrong, which I do not believe, the policy to which the applicant objects is incorporated in a law of general of general application, designed to serve a social purpose in a country with a population which is already huge. Country information available to the Tribunal indicates that the law is not generally administered in a discriminatory manner. Abuses in the past such as forced sterilisation are frowned on by the Government and local officials who attempt such measures are prosecuted. I do not accordingly accept that the policy in and of itself is persecutory either intrinsically or in its administration. The applicant has not provided convincing evidence of that its administration was abusive or in any other way persecutory in his particular case, even if I were to accept the facts he claims, which I do not.
Accordingly, I find that the applicant does not have a well founded fear of persecution in China for reason of his membership of a particular social group, his real or imputed political opinion or for any other Convention reason.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore she does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
The Tribunal affirms the decision not to grant a protection visa.
The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out three grounds as follows:
(1)The RRT had jurisdiction errors in the letter on 16 May 2005. They subjectivism.
(2)The RRT did not give me a chance to give details for a hearing before they did a decision on 19 October 2006.
(3)The fact in China “One Child Policy” still available. If I go back to China I still have dangerous. No evidence before me say I’m safe if I go back now.
Findings of the Court as to the grounds of the application
Ground 1 is a general claim of “jurisdiction errors in the letter on
16 May 2005, They subjectivisim”. Nothing has been put to the Court to establish jurisdictional error. The Tribunal found at CB 68:On 16 May 2005 the Tribunal previously constituted wrote to the Applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The Tribunal previously constituted invited the Applicant to give oral evidence and present arguments at a hearing on 9 June 2005. The Applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. The Applicant did not appear before the Tribunal previously constituted on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal previously constituted decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.
The Court refers to the decision in SZIGQ (ante) in support of the proposition that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend the reason for non-attendance is irrelevant. (Obviously the applicant received the invitation as he replied to it (CB 70.7)). When he failed to attend the inevitable consequence was the rejection of the application.
Ground 2 alleges that the Tribunal did not give the applicant “a chance to give details for a hearing before they did a decision on 19 October 2006”. This ground appears to raise allegations of breach of ss.425, 425A, and 441A of the Act.
Section 425 provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The applicant was given an invitation to attend the hearing on 9 June 2005 (CB 68) before the Tribunal as previously constituted. The matter was remitted to the Tribunal for determination according to law by order of Emmett FM on 16 August 2006. That remittal did not invalidate the letter of invitation sent to the applicant on 16 May 2005. The Tribunal was merely reconstituted; it had not finished dealing with the matter until it determined it according to law. The Court finds no breach of s.425.
Section 425A provides:
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
By s.425A the Tribunal must give the applicant notice of the day on which, and the time and place at, the applicant is scheduled to appear.
Section 441A provides:
Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient ); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:
(a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c)to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.
Transmission by fax, e‑mail or other electronic means
(5) Another method consists of a member, the Registrar or an officer of the Tribunal, transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review.
Section 441A deals with the method by which the Tribunal may give documents to persons other than the Secretary. There is no allegation that the invitation to appear at the hearing on 9 June 2005 was not properly given. As an invitation to appear before the Tribunal on the date of the second hearing was not given, the requirements of s.441A do not arise for consideration.
For the purposes of s.424A, a notice by the Tribunal which conducts a first review is taken to be a notice under that section for purposes of a second review, as the Tribunal still has before it the materials that were obtained when the decision that has been set aside was made: SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at 39.
“…there is nothing in the scheme of Part 7 of the Act to suggest that the steps required by s.424A(1), as explained by s.424A(2), must be taken at any particular time. So long as the applicant has been given information that the member of the Tribunal who is to make the decision considers would be the reason, or part of the reason, for affirming the decision under review and so long as the applicant understands why the information is relevant and has been invited to comment on the information, s.424A will be satisfied.” Ibid at 42.
Section 424A is directed to the Tribunal notifying the applicant of any information that in considers would be the reason, or part of the reason, for affirming the decision under review, ensuring as far as is reasonably practicable that the applicant understands why it is relevant to the review and inviting the applicant to comment on it.
Once the Tribunal has a response from the applicant, that response is open for consideration by the Tribunal making the first decision on the application, or making a subsequent decision on the application. Therefore, once the information has been put to an applicant in accordance with s.424A it does not have to be put again for purposes of a second Tribunal hearing.
Section 424A is vastly different from s.425A. The decision in SZEPZ (ante) is not determinative of whether a second invitation to attend should have been given. Section 425A requires that the applicant be invited to attend before the Tribunal on a specified day (by implication being a day on which the Tribunal conducts a hearing on the review). In the present case an invitation to appear before the Tribunal on 9 June 2005 (CB 68) was sent on 16 May 2005; no invitation was sent to the applicant inviting him to attend the hearing before the Tribunal as reconstituted. It set out its reasons for failing to invite the applicant to attend that hearing at CB 70 (3rd last para):
The letter the Tribunal sent to the applicant raised with him the fact of his past failure to avail himself of the opportunity to provide oral evidence to the Tribunal in support of his application. In his reply, he does not mention this or provide any reason at all why he failed to reply to the Tribunal’s invitation or to attend the hearing to which he was invited by the Tribunal previously constituted. I believe that the Tribunal has discharged its obligation to enable the applicant to attend a hearing. In addition, for the reasons set out below, I do not consider that any useful purpose would be served by inviting him again to a hearing, in light of the applicant’s reply to the Tribunal’s letter.
Section 425 relevantly requires only that the Tribunal invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The decision under review is the decision of the delegate of the Minister on 28 February 2005 to refuse to grant a protection (Class XA) visa to the applicant.
The Court holds that the applicant was on 16 May 2005 invited to give evidence and present arguments relating to the decision under review. There is no requirement to invite the applicant a second time. There is no breach of Division 4 of Part 7 of the Act which is an exhaustive statement of the natural justice hearing rule.
Therefore the failure to invite the applicant to appear to give evidence and present arguments to the reconstituted Tribunal was not a breach of the Act, and was not a denial of natural justice. No breach of s.425 has been established.
Ground 3 seeks to challenge findings of fact by the Tribunal that the applicant does not have a well-founded fear of persecution in China for reason of his membership of a particular social group, his real or imputed political opinion, or for any other Convention reason (CB 71.4). Those findings of fact were properly open to the Tribunal. The Court accepts the submission by the first respondent that the findings cannot be reviewed: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.
The respondents have shown cause why orders should not be made for the relief claimed.
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed pursuant to Rule 44.12(1)(a).
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 17 April 2007
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