SZJQP v Minister for Immigration
[2007] FMCA 336
•22 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJQP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 336 |
| MIGRATION – Whether time should be extended pursuant to s.477(2) of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal properly exercised its discretion under s.426A of the Migration Act 1958 (Cth) in making its decision without taking any further action to allow or enable the applicant to appear before it – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 414A; 425; 425A; 426A; 477; 477(1); 477(2); pt.8 div.2 |
| Applicant: | SZJQP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3270 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 March 2007 |
| Date of last submission: | 12 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Killalea |
| Counsel for the Respondent: | Ms V. Mc William |
| Solicitors for the Respondent: | Ms Z. McDonald, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3270 of 2006
| SZJQP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application that this Court extend time, pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), to the applicant for the filing of an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Act for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 September 2006 and handed down on 26 September 2006.
The applicant was born on 31 March 1965 and claims to be from The People’s Republic of China (“the PRC”) and a Falun Gong practitioner (“the Applicant”).
The Applicant arrived in Australia on 25 March 2006, having legally departed from the PRC on a passport issued in his own name and a visa issued on 8 March 2006.
On 10 April 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the authorities in the PRC because he is a Falun Gong practitioner. The Applicant claimed that, in 2005, he was issued with a warning to stop practicing Falun Gong or he would be detained and sentenced to prison. The Applicant claimed that, in July 2005, police searched his home and questioned him about his involvement in Falun Gong. The Applicant claimed that he was then detained by police for two nights and was not given any food or water during this time. The Applicant claimed that the police threatened him and told him next time he would be sent to a labour camp and he was made to sign a document saying he would no longer practice Falun Gong.
On 15 May 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 19 June 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 26 September 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 8 November 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 28 June 2006, the Tribunal invited the Applicant to attend a hearing on 23 August 2006. The Applicant was requested to complete a Response to Hearing form and return it to the Tribunal. No reply was received by the Tribunal from the Applicant.
On the 24 August 2006, the Applicant forwarded a medical certificate to the Tribunal requesting another hearing date.
On 29 August 2006, the Tribunal wrote to the Applicant advising him that the Tribunal would not reschedule the hearing date and, pursuant to s.426A of the Act, the Tribunal would proceed to make a decision without taking further action to allow the Applicant to appear before it.
In the Tribunal’s letter, dated 29 August 2006, the Tribunal referred to its letter of 28 June 2006. In its letter dated 29 August 2006, the Tribunal noted that no reply to the Tribunal’s letter, dated 28 June 2006, had been received from the Applicant.
The Tribunal’s letter noted that the Applicant had not made any contact with the Tribunal either in response to its letter of 28 June 2006, nor in providing to the Tribunal a response to hearing by 14 July 2006. The letter noted the Applicant’s first contact with the Tribunal was a facsimile sent after office hours on 24 August 2006, the day after the scheduled hearing. The Tribunal’s letter noted that the Applicant claimed he had been ill for over a week and hoped to have another hearing. The letter then referred the Applicant to the terms of its letter dated 28 June 2006 in which it informed the Applicant that, if he thought he may not be able to attend the hearing he should contact the Tribunal immediately.
The Tribunal’s letter noted that, if the Applicant was ill for over a week prior to 24 August 2006, he could have contacted the Tribunal and sought to postpone the hearing.
The letter also noted that the Applicant did not attend a doctor until
23 August 2004, being the day of the hearing, and that the doctor’s certificate stated the Applicant would be ill only for 2 days due to a “viral illness”. The letter noted that the Applicant lived in Ashfield, yet travelled to Blacktown to attend a medical practice on the day of the hearing and, observed that it would have been a shorter and less arduous trip to go from Ashfield to the City to attend the hearing.
The Tribunal’s letter concluded that, in considering all the circumstances, the Tribunal decided to exercise its power under s.426A of the Act to make a decision on the Applicant’s case without taking any further action to allow or enable the Applicant to appear before it.
In its decision, the Tribunal recited the text of the letter and noted that the Applicant did not contact the Tribunal upon receipt of that letter.
In the “Findings and Reasons” section of its decision, the Tribunal again had regard to the correspondence that it had with the Applicant, culminating in the Tribunal presiding to make its decision without taking any further action to allow or enable the Applicant to appear before it.
In its decision, the Tribunal referred to the legislation that obliged a Tribunal to complete its hearing within 90 days of receipt. The Tribunal noted that if it were to reschedule the Applicant’s hearing it would not be for some 2 months after it was originally set down with the consequence the decision making process would extend beyond the prescribed 90 days. Because the Applicant had failed to respond to the Tribunal’s letter dated 28 June 2006 and failed to provide a response to hearing, the Tribunal did not accept that the Applicant would come to a latter scheduled hearing. The Tribunal noted that the Applicant did not have any new documents or arguments that he wished the Tribunal to consider.
The Tribunal noted the Applicant’s claim of a fear of persecution by reason of being a Falun Gong practitioner however found that the material lacked detail and that there was “no evidence before the Tribunal to indicate that the applicant has any knowledge of the practice of Falun Gong, nor its history or philosophy.” The Tribunal also observed that the Applicant did not provide any evidence of having undertaken Falun Gong practice or associated activities in Australia and that one would have expected such evidence from a genuine practitioner.
The Tribunal concluded on the material before it that it was not satisfied that the Applicant has a well founded fear of persecution for a Convention reason and was therefore not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The proceeding before this Court
The Applicant was represented by counsel, Mr Killalea, before this Court.
By consent, the Applicant was granted leave to file in Court and rely upon an amended application. The amended application was in the following terms:
“1. The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT erred in law in finding that it could not reschedule a hearing of the RRT beyond the period set out in 414A unless it had “cogent reasons”.
Particulars
Decision Record CB 69.2
S.414A Migration Act
2. The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT erred in law in taking into account irrelevant considerations in finding that would not reschedule a hearing of the RRT
Particulars
Decision Record (CB69.2)
“given the way he has failed to respond to invitations in the past, there is no reason to believe that he would come to a later-scheduled hearing”
Decision Record (CB 69.3)
“he has not indicated that he has any new documents or arguments he wants the Tribunal to consider”
Decision Record (CB 69.4)
“in the Tribunal’s experience, people who believe that they have genuine claims for a protection visa are anxious to come to hearing If they are taken ill, they contact the Tribunal immediately…… Tribunal correspondence.””
Ground 1
Mr Killalea contended that the Tribunal erred in law by finding that it could not reschedule a hearing of the Tribunal beyond the 90 day period, unless there were “cogent reasons”. Mr Killalea submitted that s.414A of the Act did not speak of cogent reasons and that, in the circumstances, the Tribunal misunderstood the relevance and applicable law.
Mr Killalea submitted that there was an inconsistency between s.414A that required a review to be completed within 90 days and s.426A that allowed for a hearing to be rescheduled. Mr Killalea did not contend that the Tribunal was not entitled to exercise its discretion under s.426A of the Act.
A fair reading of the Tribunal decision makes it clear that the Tribunal observed that it had an obligation to conduct its review in a “fair, just, economically, informal and quick” manner and that recent legislation obliged the Tribunal to complete the case within 90 days of receiving it. Having made that observation, the Tribunal went on to qualify “unless there is a cogent reason why this cannot be achieved.”
A fair reading of the decision makes it clear that the Tribunal was doing no more than observing the legislation to complete its review within 90 days and that, if the Tribunal was to reschedule in accordance with s.426A of the Act, the decision making process would be in excess of the prescribed 90 days. The Tribunal was making clear that its own timetable would not allow it to reschedule until some 2 months after the matter was originally set down with the effect that the decision making process would extend beyond the prescribed 90 days. That is a matter that it was perfectly proper for the Tribunal to consider in exercising its discretion whether to reschedule. A fair reading of the decision in context does not suggest that the Tribunal was stating that s.414A of the Act provided a discretion of compliance.
Section 426A of the Act preserves in the Tribunal a discretion to reschedule. In exercising its discretion, the Tribunal was entitled to have regard to the failure of the Applicant to respond to the Tribunal’s letter of 28 June 2006 or to return the response to hearing invitation. Further, it was open to the Tribunal to find that, in the light of that conduct, there was no reason to believe the Applicant would come to a later scheduled hearing, particularly, where the Applicant had not provided any new documents or arguments.
The Tribunal made some observations about its own experience with applicants who are taken ill and contact the Tribunal with satisfactory medical certificates as to why they cannot attend the scheduled time. The Tribunal is entitled to have regard to that experience and the fact that such persons ring the contact person listed on the Tribunal correspondence. The Tribunal noted that its letter dated 29 August 2006 contained the name and contact details of a person whom the Applicant may contact with any queries and noted that the Applicant made no such contact.
The Tribunal did not make any concluded finding arising out of those matters, rather, the Tribunal simply made the observations.
The failure of the applicant to respond to the Tribunal’s letter, dated 28 June 2006, and to fail to return the Response to Hearing form is information that the Tribunal was entitled to have regard to in considering whether to exercise its discretion pursuant to s.426A of the Act to make a decision without taking any further action to allow or enable the Applicant to appear before it.
Counsel for the Applicant agreed that the matters referred to by the Tribunal, in the “Findings and Reasons”, section of its decision merely amplify those matters referred to in its letter, dated 29 August 2006.
There is no error in the exercise by the Tribunal of that discretion. I reject the contentions of the Applicant that the Tribunal misunderstood its obligations under s.414A of the Act merely because it observed that a “cogent reason” was necessary for any extension beyond the 90 days as an error of the Tribunal going to jurisdiction.
Ground 2
Counsel for the Applicant contended that the Tribunal erred by taking into account irrelevant considerations, namely those identified in the particulars. However, it is a matter for the Tribunal the considerations to which it has regard in the exercise of its discretion. The Tribunal gave reasons as to why each of the matters to which it referred was relevant to its decision to exercise its power under s.426A of the Act to make the decision on the Applicant’s case without taking any further action to allow and enable him to appear before it. Each were matters open to the Tribunal to consider in the exercise of its discretion and there is no error going to the Tribunal’s jurisdiction established by the Tribunal’s regard to those matters.
In short, the Tribunal issued the Applicant with a valid invitation in accordance with ss.425 and 425A of the Act. The Applicant failed to respond to that invitation and failed to attend the hearing or make any contact prior to the hearing with the Tribunal. The Tribunal on the day of the scheduled hearing noted that it checked to see if everything possible had been done to notify the Applicant correctly about the hearing and was satisfied that it had. The Tribunal then noted the facsimile received from the Applicant the following day and on
29 August 2006, made its decision to proceed under s.426A of the Act to make its decision without taking any further action to allow or enable the Applicant to appear before it.
The Tribunal then had regard to the Applicant’s claims and noted that they lacked detail. In particular, the Tribunal noted there was no evidence before it to indicate that the Applicant had any knowledge of the practice of Falun Gong nor its history or philosophy.
The conclusions made by the Tribunal were open to it on the material before it and for which it provided reasons.
Conclusion
The Tribunal otherwise complied with its statutory obligations both in the conduct of its review and the making of its decision.
The decision of the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision.
I note that the Applicant requires leave for the filing of his application for judicial review because the 28 day period provided for in s.477(1) of the Act has passed. The Applicant was notified of the decision of the Tribunal on 5 October 2006 and did not file his application for judicial review of that decision until 8 November 2006. Section 477(2) of the Act allowed the Court to extend time up to a maximum of 84 days from notification where it is satisfied that it is in the interest of justice to do so.
The Applicant’s application has no reasonable prospect of success and for that reason it is not in the interest of justice that time be extended to the Applicant to allow him to file the application.
Accordingly, the Applicant’s application for an extension of time pursuant to s.477 of the Act is refused and the proceeding before this Court is dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 21 March 2007
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