SZJUP v Minister for Immigration
[2007] FMCA 1990
•27 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1990 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJUP”. |
| Migration Act 1958 (Cth), ss.36(2), 91X, 424A, 426A |
| Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR 982 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 |
| Applicant: | SZJUP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3586 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 27 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Ms Z McDonald of DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 4 December 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3586 of 2006
| SZJUP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant is a married man from Gaocheng city, Henan province, the People’s Republic of China. His wife and daughter are currently resident in China. He seeks protection in Australia on the basis that he was persecuted because of his adherence to and practice of Falun Gong.
He claims he became a Falun Gong member in 1997 and learnt from his uncle. When the authorities banned Falun Gong in 1999, his activities became illegal. He claims he went to Beijing several times to “appeal for Falun Gong”. As a result people from the 610 office sent him to camp for education twice and he suffered mental and physical torture. He could not practice Falun Gong openly and had to hide. He claims he could not enjoy freedom of belief in China.
The applicant arrived in Australia on 25 May 2006 and applied for a Protection (Class XA) visa on 7 June 2006. A delegate of the first respondent refused to grant the visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention. The applicant was invited to an interview with the Department on 10 July 2006 but did not attend the interview. The registered letter of invitation to the applicant was not returned to the Department unclaimed.
The applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 15 August 2006 for review of the delegate’s decision. On
1 September 2006the Tribunal 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 invited him to give oral evidence and present arguments at a hearing on 11 October 2006. On 13 September 2006 the applicant notified the Tribunal that he wished to give oral evidence. However, the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In the circumstances, and pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”), the Tribunal made decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal found that the claims before it lacked essential detail. On the evidence before it, it was not satisfied that the applicant had suffered persecution in the past, or that he had a well-founded fear of persecution if he returned to China in the foreseeable future.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence and is the only evidence before the Court.
At the first Court date, the applicant indicated that he wished to participate in the scheme to give unrepresented applicants in refugee independent legal advice. The Court file indicates that the applicant was allocated a panel adviser received advice. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon. This order was complied with and the amended application contains the following grounds:
(a)Ground one – The Tribunal’s satisfaction that I am not a refugee was not based on a rational and logical foundation. The decision was not based on evidence. The decision was biased.
(b)Ground two – The Tribunal failed to consider my application according to s. 424A of the Migration Act 1958. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision.
(c)Ground three – I did not have hearing for my application to the Tribunal for some reason beyond my control. I hope that I can be given an opportunity to explain my case.
Consideration
The applicant appeared in person as an unrepresented litigant assisted by a Mandarin interpreter. The applicant confirmed that he had not complied with the order to prepare written submissions. When invited to make oral submissions, he indicated that he wished this matter to be reconsidered by the Tribunal because he had an injured leg on the date of the hearing. When asked if he had contacted the Tribunal to notify it of this injury and seek an alternate hearing date, the applicant said that he had not. He also confirmed that he did not have a medical certificate or document confirming the injury.
I also brought to the applicant’s attention that the Tribunal decision recorded that he had failed to attend the interview with the delegate on 10 July 2006 and that the invitation had not been returned unclaimed. The applicant did not give any explanation for his non-attendance.
The Tribunal letter dated 1 September 2006 and addressed to the applicant clearly states:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone. (CB 51)
The letter also clearly set out the time, date and place of the hearing and what steps that the applicant could take to present any new documents or written arguments, together with the opportunity to bring any witnesses to give oral evidence. The letter also informs of the procedure to be adopted if there is a problem in attending on the scheduled date. The applicant returned the “Response to Hearing Invitation” indicating that he wished to attend but did not wish to bring any witnesses.
In circumstances where an applicant fails to attend a Tribunal hearing the inevitable consequence is the rejection of the application, see NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] per French, Emmett and Dowsett JJ:
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.
The applicant raised the issue of non-attendance at the Tribunal hearing in ground three of his amended application, stating that his failure to attend was for reasons beyond his control. However, as discussed at [9] and [11] above, the applicant made no attempt at any time to notify the Tribunal of the problem and seek an alternative hearing time. I am satisfied that the Tribunal pursued the only course open to it in proceeding in accordance with s.426A and that no jurisdictional error results from this.
Ground one
The Tribunal’s satisfaction that I am not a refugee was not based on a rational and logical foundation. The decision was not based on evidence. The decision was biased.
I agree with the written submissions of the first respondent that when an applicant was advised of the inadequacy of his application but did not attend the scheduled hearing, it was not irrational or logical for the Tribunal to consider there to be insufficient evidence to satisfy the applicant’s claims. The Tribunal was not satisfied on the information before it that the applicant met the criteria for a protection visa as specified in s.36(2) of the Act and had no other option but to affirm the delegate’s decision.
In SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 at [15]-[16], Ryan, Jacobson and Lander JJ considered the legislative regime which requires a decision-maker to reach a positive state of satisfaction:
15. 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; or
(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.’
16.It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention. As Gummow and Hayne JJ observed in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister;
‘The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. 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.’In ground one the applicant makes a claim of bias. This allegation is made without identifying which aspect of the decision or the decision-maker’s actions is included in the claim. There is also no indication whether this is a claim of actual or apprehended bias. A party alleging actual bias on a decision-maker’s part carries a heavy onus which must be clearly proved: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 531.
The existence of actual bias may be inferred from facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias on factual errors or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]. A case of bias is not made out by reference solely to the reasons for decision. No inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38].
The applicant in this matter failed to attend the meetings with both the delegate and the Tribunal and faces a substantial hurdle in proving actual bias on the part of the Tribunal. If the allegation is of apprehended bias, it is also extremely difficult to suggest that a fair minded lay observer, who is properly informed of the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR 982 at [27].
I am satisfied that the applicant’s use of the term “bias” is nothing more than his expressing dissatisfaction with the decision.
Ground two
The Tribunal failed to consider my application according to s. 424A of the Migration Act 1958. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision.
Ms McDonald, for the first respondent, submits that no s.424A obligation arose in this matter because the reason for the Tribunal’s decision was the lack of information before it. Ms McDonald referred to SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29]-[30] where Allsop J stated in a case similar to this that the Tribunal’s reason for the decision was the “evaluative conclusion founded on the perceived inadequacy of the information” due to an “absence of detail and extrinsic explanation which had been invited”.
In NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4]-[5], it was observed that the Tribunal is entitled to list significant matters which it would have liked to satisfy itself of at the hearing. If the Tribunal is not satisfied that an applicant has a well-founded fear of persecution, it is bound to affirm a decision to refuse to grant a protection visa.
I accept Ms McDonald’s submissions and supporting authorities. The applicant’s claim as to a breach of s.424A appears to be an attempt to raise grounds of review commonly seen in judicial review applications before this Court but which bear little reference to the actual decision being challenged. Ground two cannot be sustained.
Conclusion
The applicant appeared at the hearing as a self-represented litigant assisted by a Mandarin interpreter. He appears to have been assisted in the preparation of his application and amended application by someone with limited knowledge of migration law. Although given an opportunity to participate in the Court-sponsored panel advice scheme, the applicant filed an amended application with vague and unparticularised claims bearing little relevance to the Tribunal decision. The problem faced by the applicant is that he failed to attend the Tribunal hearing after being notified that the Tribunal was unable to make a decision in his favour on the limited information he had provided.
Despite the warnings in that letter about failing to attend the hearing, the applicant made no attempt to contact the Tribunal. In the circumstances, the Tribunal was entitled to proceed in its
decision-making in accordance with s.426A. The other grounds raised by the applicant have no relevance to the Tribunal decision. The application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application fixed in the sum of $2,700.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 5 December 2007
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