SZJSC v Minister for Immigration
[2007] FMCA 195
•1 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 195 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss 91X, 422B, 425, 425A, 426A, 441A, 441C Migration Regulations 1994, reg.4.35D |
| VNAA & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 450 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 |
| Applicant: | SZJSC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3376 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 20 February 2007 |
| Date of Last Submission: | 20 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3376 of 2006
| SZJSC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 15 November 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated
22 September 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 1 July 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
In the application for the visa the applicant gave her age as 34. She set out that she belonged to the Chinese ethnic group and that her religion is Christian. She revealed that she was married on 10 March 1990. Her occupation is salesperson. She left China on 25 May 2006. Her address where she has lived outside Australia for 12 months or more in the last ten years is given as Liangxu Village, Qiantan Town, Zhanjiang, Guangdong, China. She had
6 years of education between January 1981 and July 1987. She has worked as a salesperson from October 2000 until May 2006. She arrived in Australia on a visitor visa.
… she has a husband, father and mother living in China. She also sets out that she has 5 children aged between 16 and 7 living in China. (Court Book (“CB”) page 67)
The applicant claims to have been persecuted and to fear future persecution in China because she has 5 children, contrary to China’s one-child family planning policy.
The facts alleged in support of the applicant’s claim for a protection visa are set out on page 4 of the Tribunal’s decision (CB 67). Relevantly, they are in summary:
a)the applicant claims that she has been suffering discrimination and persecution because she has 5 children in China, which is a breach of the family planning policy in China which has been in place for 26 years;
b)the applicant was penalised by the local government because she had more than one child. She was fined more than once. Because she did not pay the fines the local government took away her household contents, which she claims made her suffer a miserable life; and
c)three of the applicant’s children are not registered with hukou which impacts on their welfare now and in the future. It impacts on their education, health care and employment. The applicant’s statement attached to her protection visa application form describes a hukou as a birth certificate. (CB 28).
The Tribunal’s decision and reasons
After discussing the claims made by the applicant in the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s reasoning was expressed as follows:
The Tribunal is satisfied, and finds, that the applicant is a national of China.
The applicant’s claims essentially relate to the application for [sic] China’s family planning policy to her and her children. The claims she has made about her circumstances were expressed extremely briefly and lacked crucial details. Her complaints about her experiences were very vague and limited. Given the limited evidence before it, and in the absence of an opportunity to explore the detail and veracity of the applicant’s claims, the Tribunal is unable to establish the relevant facts.
The Tribunal is not satisfied, on the evidence before it, that Ms Chen has a well-founded fear of persecution within the meaning of the Convention. (CB 68).
Proceedings in this Court
The application pleads that the Tribunal breached s.425(1) of the Act by not inviting the applicant to attend a hearing before the Tribunal.
In her oral submissions to the Court the applicant said that she had not received an invitation to attend a Tribunal hearing or, at least, had not received it until “later”.
Breach of s.425(1)
Section 425 is part of div.4 of pt.7 of the Act in which s.422B also sits. Section 422B(1) provides:
This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Section 425(1) provides:
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.
Section 425A relevantly 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) …
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period …
In respect of s.425A(3), reg.4.35D prescribes 14 days as the notice period in respect of applicants not in detention, and 7 days for applicants in detention.
Section 441A relevantly provides:
(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.
(2) …
(3) …
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.
Section 441C relevantly provides:
(1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).
(2) …
(3) …
Dispatch by prepaid post or by other prepaid means
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document; or
(b) in any other case--21 days after the date of the document.
Section 426A(1) provides:
If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
In the application for review submitted by the applicant to the Tribunal, the applicant specified an address in Pitt Street, Sydney to which she wanted all correspondence sent (“Pitt Street address”). In its letter of
11 August 2006, addressed to the applicant at the Pitt Street address, the Tribunal advised her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone and invited her to attend a hearing at the Tribunal at a specified address at 10am on 19 September 2006
(CB 53). No issue has been raised that the letter was not sent on or about the date which it bears and the Tribunal’s decision at CB 67 says that:
The Tribunal file reveals that on 11 August 2006 the Tribunal wrote to the applicant advising that it had considered the material before it relating to her application but was unable to make a favourable decision on that information alone.
It appears from the document headed “No Reply – Check List” at
CB 56 that no response was received to that letter. The “RRT Hearing Record” reproduced at CB 57 indicates that the applicant did not attend the scheduled hearing.
Having written to the applicant in the fashion required by the statute, and to the address given by the applicant, no error occurred by the Tribunal proceeding to determine the application. As Sundberg and Hely JJ said in VNAA & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 at 414 [15], Gyles J agreeing:
There was no breach of s 425, as alleged in the notice of appeal. The Tribunal invited the appellants to appear to give evidence and present arguments. The invitation and the notice of the time and place of the hearing were embodied in the one document, as ss 425 and 425A contemplate. See NAOZ. They were sent to the appellants' address for service at their last residential address appearing on their application for review. By force of s 441C(4) they are taken to have received the document seven working days after the date it bears. As the primary judge said, the fact that they did not become aware of the invitation does not displace the effect of s 441C. A Full Court so decided in NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184. Section 426A empowered the Tribunal to decide the review in the absence of the appellants and without taking any further action to allow or enable them to appear before it. We agree with the primary judge when he said:
"If the applicants' argument were right, the Tribunal would be required in each case to be affirmatively satisfied that the invitation under s 425 had actually come to the notice of the applicant. To proceed in the absence of such affirmative satisfaction would, on the applicants' argument, convict the Tribunal of jurisdictional error. That argument flies in the face of the statutory scheme discernible in ss 441A and 441C and must, I consider, be rejected."
Similarly, in SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 at [17], the Full Court of the Federal Court said:
In our judgment, Nicholls FM was correct in his conclusion that there was no want of procedural fairness arising from the claimed late receipt of the hearing letter. Section 425 of the Migration Act 1958 (Cth) requires the Tribunal to invite an applicant to a hearing. This can be done by adoption of the process referred to in s 425A. This was done in this case. It is not to the point that actual notice was not received by the child until after the date for hearing. Compliance with the regime referred to in ss 425, 425A, and 441G satisfies the requirements of procedural fairness to an applicant: s 422B.
Section 422B of the Act provides that the common law natural justice hearing rule is excluded to the extent of the operation of div.4 of pt.7 of the Act. Consequently, to proceed to a hearing pursuant to s.426A, once the Tribunal had complied with its notice obligations under s.425, did not involve any error on the part of the Tribunal.
Although it is not strictly necessary to consider the following issue in light of the conclusion I have reached on the ground raised by the applicant in relation to s.425, the first respondent has submitted that, in any event, the Tribunal’s decision itself was not affected by jurisdictional error. The first respondent points out that the decision was based upon the Tribunal’s inability to reach the requisite level of satisfaction on the basis that the materials before it were inadequate for it to reach that level of satisfaction. The basis for this was explained by the Full Court of the Federal Court in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [14] – [15] where their Honours said:
A decision to grant or refuse a visa is conditioned upon satisfaction as to the matters specified in s 65(1) of the Act which, so far as is relevant, provides;
‘After considering a valid application for a visa, the Minister:
(a) if satisfied that:
... ...
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; ...
... ...
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.’
It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. A criterion for a protection visa specified in s 36(2) of the Act is;
‘...that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol …
Further, as Gummow and Heydon JJ said in Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 450 [57], Gleeson CJ agreeing at 438 [1]:
Those proceedings [in the Tribunal] are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by the applicant. The Tribunal Member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The Tribunal Member has no "client", and has no "case" to put against the applicant … Here … it was for the prosecutrix [i.e. the visa applicant] to advance whatever evidence or argument she wished to advance, and for the Tribunal to decide whether her claim had been made out … (footnotes omitted).
As the Tribunal expressed in its reasons quoted above in paragraph 6, the Tribunal was unable to establish relevant facts in circumstances where the applicant’s claims were expressed extremely briefly and lacked crucial details and she did not attend the hearing which the Tribunal had listed. In NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 the applicant declined the Tribunal’s invitation to attend a hearing and the Tribunal then determined the matter on the limited information which had been provided. On appeal, the Full Court of the Federal Court said at [5]:
In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
In circumstances where the Tribunal has written to the applicant indicating that it was unable to make a decision in her favour on the information then before it, and invited her to come to a hearing of the Tribunal to give oral evidence and present arguments in support of her claims (CB 53) and which she did not attend, it is unsurprising that the Tribunal had insufficient material on which to be satisfied that the applicant met the criteria for a protection visa. As Allsop J explained in SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 at [12]:
In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason [f]or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain. The Tribunal concluded that on the material the absence of information was such that it was not able to reach the requisite state of satisfaction. In SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195, I said the following at paragraph 29, which is equally applicable to the matter here:
On one view it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of section 424A(1) by section 424A(3)(b) it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis ... whilst in some cases an 'unbundling is necessary' in order sensibly to apply section 424A to the expressed reasons of the Tribunal, here the reason for the decision is plain. The Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply, and no more than, evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was a reasonable part of the reason for the decision. It was the lack of requested further assistance and explanation that was the reason.
For these reasons, I accept the first respondent’s submission that the Tribunal’s decision discloses no jurisdictional error.
Conclusion
For the above reasons, jurisdictional error on the part of the Tribunal has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Angela Chong
Date: 1 March 2007
0
8
2