SZJYD v Minister for Immigration - [2007] FMCA 452

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJYD v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 452

MIGRATION – RRT decision – Chinese applicant fearing persecution for illegal departure and asylum claim – invitation to hearing served while in detention – hearing conducted by video link – no jurisdictional error found in procedures – application dismissed.

Federal Magistrates Court Rules 2001 (Cth), r.16.02
Migration Act 1958 (Cth), ss.412, 425(1), 425A, 425A(1), 425A(2)(b), 425A(3), 429A, 441AA, 441A, 441A(5), 474(1), 476

Migration Regulations 1994 (Cth), regs.4.35D(a), 5.02

Applicant:

SZJYD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3910 of 2006

Judgment of:

Smith FM

Hearing date:

26 March 2007

Delivered at:

Sydney

Delivered on:

26 March 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.
These orders shall not take effect until 23 April 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3910 of 2006

SZJYD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 28 December 2006, which has been set down for a final hearing on whether the applicant is entitled to relief under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 December 2006 and forwarded to the applicant in the Villawood Detention Centre on 14 December 2006. The Tribunal affirmed the decision of a delegate made on 29 November 2001, refusing to grant a protection visa to the applicant.
The applicant’s application for review of the delegate’s decision was first lodged with the Tribunal on 13 June 2006 after he was taken into immigration detention. The documents before me show that consideration was given by the Tribunal to whether the applicant’s application was out of time under s.412 of the Migration Act, and a decision was made that it was not. The reason for this conclusion is not clear, but it may have been that the delegate’s decision was posted to a residential address which had not been given with the protection visa application. The decision of the Tribunal which I am reviewing has assumed that it had jurisdiction, and the Minister has not challenged this assumption. I therefore do not need to address this issue further.
The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but the Court’s powers are confined by s.474(1), so that I do not have power to remit the matter to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant is a refugee under the Refugees Convention or qualifies for a protection visa or any other permission to stay in Australia.
The applicant presented his application for protection visa on 10 July 2001. In this, he indicated that he had arrived in Australia in May 1999 on a false Thai passport. He attached a typed statement which, in a rambling fashion, presented claims to fear return to the country of his claimed nationality, the Peoples’ Republic of China, for reasons covered by the Refugee Convention. Without any particulars, the statement claimed that he had suffered as a result of “my role in the Pro‑democracy Movement” in 1989, and that he had in 1992 and 1999 encountered unspecified persecution by reason of “printing the Bible” and “my articles which spread religious belief”. He claimed that he would be mistreated if he went back:
Because my previous case in China (practiced religious belief in secret family church, was involved in the 1989 Movement and wrote dissident articles, etc.) is still pending and is not finalised yet, the Chinese authorities will certainly charge me and imprison me). (emphasis in original)
He claimed that he was a Christian who regularly read the Bible and distributed copies of it, and as a result had been detained and kept under “close scrutiny by the authorities”. His statement concluded with a claim:
In the eyes of the Chinese authorities, applying for refugee status in a foreign country is considered as treason. If I were not granted protection in Australia, I would certainly be persecuted upon return to China …
The applicant presented no supporting details or evidence for these claims.
In his reasons, the delegate did not consider that the possession of a false passport would lead to the applicant “be[ing] subjected to treatment amounting to persecution should he return to China”. The delegate was not satisfied that the applicant had a well‑founded fear of persecution based on his Christian belief. The delegate noted that the applicant had neither attended an interview to which he was invited, nor had he responded to an invitation to comment on country information which he had been sent.
After his application for review was lodged with the Tribunal, and after it was decided that the Tribunal would accept jurisdiction, a facsimile transmission was sent on 3 October 2006 to the manager of the Villawood Detention Centre informing the manager:
A hearing has been arranged for [the applicant], and any other related applicants listed above [of which there were none], on 11 October 2006 at 10:00 at Administrative Appeals Tribunal in SYDNEY.
Please hand the attached hearing invitation and ‘Response to Hearing Invitation’ form to the applicant immediately.
A car spot number 6 has been reserved for your parking at the AAT.
The hearing invitation, which was addressed to the applicant at the same facsimile number as was shown as the manager’s number, informed the applicant that the Tribunal had been unable to make a decision in his favour on the material before it and invited him to attend a hearing on the date, time and place indicated to the manager. The letter also said: “Please Note: This hearing will be conducted by video conference. The Member and interpreter will be in Melbourne”.
The documents before the Court indicate that the applicant was in attendance at hearing room 4 when the hearing was conducted between 11.18 am and 12.53 pm on the day appointed. The Tribunal gave a description of the hearing in its statement of reasons. A transcript has not been tendered by either party and I have no reason not to accept the Tribunal’s description.
According to the Tribunal, the applicant disclaimed the claims made in his protection visa application on the basis that “a migration agent completed the protection visa application and the statement in support” and “the information submitted to the Department in his Statutory Declaration was incorrect”.
The applicant gave the Tribunal a history of employment in China as a truck driver until losing that work “because he had been prosecuted by the traffic police and he couldn’t make a profit”. He then moved around China “taking labouring jobs in various parts of China”, before departing China with the assistance of a smuggler who arranged for him to walk over the border into Thailand. He then “travelled to Indonesia and eventually to Australia on a false Thai passport”.
The applicant claimed that he feared return to China because “government departments are still looking for him and will persecute him. They will persecute him because he is now a traitor and escaped from China. He was previously a Communist Party member and left the party”. He also claimed that he had not been able to get his driver’s licence renewed, and “he could be charged with disclosing secrets or charged with being a Falun Gong practitioner”, although the applicant had never been a Falun Gong practitioner.
The Tribunal said in its statement of reasons that it discussed with the applicant country information about punishment for illegal departure from China. The Tribunal also set out information concerning that matter in its statement of reasons. This indicated that “leaving China without exit permission or a passport is a criminal offence in China punishable of up to one year in prison. Only repeat offenders would get a sentence approaching the maximum”.
Under the heading “Findings and Reasons”, the Tribunal accepted that the applicant was a Chinese national, and that his oral evidence rather than his protection visa application statement “represents his claims to refugee status”. It did not accept that he had been mistreated or discriminated against for imputed religious or political beliefs, and did not consider that the applicant’s employment history indicated difficulties due to a Convention reason. It accepted that the applicant had left China illegally in 1998 without a passport and that he “may be required to pay a fine if he is deported back to China”. However, after referring to country information, it concluded:
In such circumstances the Tribunal is not satisfied that any punishment that he would receive for illegal departure would be affected by his previous profile in China. There is also no evidence before the Tribunal that would indicate the applicant is a member of a particular social group, or that there is another Convention related reason, that would lead to him being differentially treated when being punished for illegally departing. As a result the Tribunal finds that the applicant does not face a real chance of persecution for a Convention reason as a result of his illegal departure. In the Tribunal’s view, if the applicant is prosecuted on return to China, it will [be] because he breached China’s migration laws, laws of general application and not for a Convention reason.
The Tribunal considered the applicant’s fear of persecution because he had applied for asylum in Australia, but it was not satisfied that there was any reason to conclude that the Chinese authorities would be aware that the applicant had applied for asylum.
The Tribunal considered that the applicant’s fear of being falsely charged with being a Falun Gong practitioner was not well‑founded. It made a general conclusion that it was not satisfied that the applicant has a well‑founded fear of persecution for reasons of religion, imputed political opinion or for any other Convention reason.
I have considered the reasoning of the Tribunal and its procedures, and am not satisfied that the Tribunal’s decision was affected by any jurisdictional error.
The applicant’s application to this Court had three grounds:
1.I am a Chinese, I applicate of the protection. My applicate was lodged. If I go back to China, I will be persecuted.
2.The RRT is the Decision to cancel my grant my protection visa application without any proper grounds and proper investigate.
3.Member of RRT failed to understand my claims and failed to consider relevant matters. Further particulars to be provided.
The first ground does not provide a ground of jurisdictional error.
The second ground is unparticularised and without any apparent substance in my opinion. I consider the Tribunal did investigate the claims ultimately pressed by the applicant of fears to return to China.
In relation to Ground 3, I am not satisfied that there was any failure by the Tribunal to properly understand the applicant’s claims and to consider relevant matters.
The applicant has not filed an amended application nor any written submission. Nor has he filed any evidence on affidavit, as was directed under orders I made on 17 January 2007.
He has, however, shortly before today’s hearing sent to the Court a brief handwritten submission. This includes the sentences:
At the hearing, it turned out that my case has been proceeding in Melbourne and the hearing was conducted through cable system. Since I have lived in Sydney all these years, I wondered how this had happened. I believe the inconvenience caused by this directly related to my failure on the hearing and the adverse decision of RRT. I hope you would take this into account when you consider my review application.
In the light of that request, which was repeated to me by the applicant when he attended today, I did explore with counsel for the Minister the legality of the Tribunal’s proceedings using a video connection at the hearing.
Under s.425(1) of the Migration Act, the Tribunal was required to “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”. Under s.425A(1) the invitation was required to “give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear”. Under s.425A(2)(b) the invitation was required to be given to the applicant in immigration detection “by a method prescribed for the purposes of giving documents to such a person”. Regulation 5.02 of the Migration Regulations 1994 (Cth) gave the Tribunal a general discretion as to the manner of service of documents on a person in immigration detention, since it provided only that “a person in immigration detention may be served by giving it to the person himself … ”. Under s.441AA, where “(a) a provision of this Act or the regulations requires or permits the Tribunal to give a document to a person”, and there is no prescription of one of the methods in ss.441A or 441B as with the present case, the Tribunal “may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in [those sections])”.
Section 441A includes provision for service by fax to “(5) … the last fax number … provided to the Tribunal by the recipient in connection with the review”. However in the present situation, it is unclear to me that the applicant ever provided a fax number “in connection with the review”. I am not therefore satisfied that the Tribunal has proceeded under s.441A(5) in the present case. However, as I have indicated, it was not obliged to.
The Tribunal appears to have concluded that it could give the applicant notice of the hearing by way of its request to the manager at the Villawood Detention Centre that he should arrange for it to be personally delivered to the applicant. There is no evidence before me presented by the Minister, or on affidavit by the applicant, establishing that he was not given the invitation as requested by the Tribunal on the day that the transmission occurred. On the evidence before me, I am not satisfied that it was not open to the Tribunal to conclude that the applicant had been properly and sufficiently given notice of an invitation to attend a hearing at a hearing room in the AAT in Sydney pursuant to the requirements of notice under s.425A, including the requirement under s.425A(3) and reg.4.35D(a) of a period of seven days notice for a person in detention.
In relation to the fact that the Tribunal member conducted the hearing by video link from Melbourne to that place of hearing, counsel for the Minister submitted that the Tribunal was empowered to follow that procedure under s.429A. This provides:
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a)telephone; or
(b)closed‑circuit television; or
(c)any other means of communication.
I accept that submission. In my opinion, s.429A is an empowering provision allowing the Tribunal on its own motion to arrange a hearing in which the member constituting the Tribunal is physically separated from the hearing room at which the applicant has attended, and to conduct the hearing by way of “closed‑circuit television”. This appears to have occurred in this case. I therefore do not consider that the concern raised by the applicant has raised a jurisdictional error in the procedures of this Tribunal.
For the above reasons I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.
Although the applicant was present today when I gave the above ex tempore reasons, I consider that it is desirable that he should have an opportunity to receive them in written form and to obtain legal advice on them, before my order formally concluding his application takes effect. The Minister did not oppose my fixing a later date under r.16.02 of the Federal Magistrates Court Rules 2001 (Cth) for this purpose.

I certify that the preceding thirty‑two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 3 April 2007