SZKGV v Minister for Immigration
[2007] FMCA 1959
•23 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1959 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no appearance before the Tribunal – Tribunal proceeded pursuant to s.426 – no denial of natural justice – no s.424A obligation arose – Tribunal did not rely on independent country information – no denial of natural justice – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.424A, 425, 425A, 426, 426A, 441C, 91R, 65, 36 Migration Regulations 1994, reg.4.35D |
| SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 SZCIC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1194 SZFWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 SZIDH v Minister for Immigration and Citizenship [2007] FCA 369 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZKGV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 720 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 23 November 2007 |
| Date of Last Submission: | 23 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms M Mafessanti |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed 1 March 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 720 of 2007
| SZKGV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”) on 1 March 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 12 January 2007 and handed down on 1 February 2007, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The first respondent has filed a bundle of relevant documents in this matter which I will refer to as the Court Book (“CB”). What can be discerned from this material is that the applicant is a national of the People’s Republic China (“China”) who arrived in Australia in July 2006 and applied for a protection visa on 25 August 2006. This was refused on 19 October 2006 and the applicant sought review by the Tribunal on 20 November 2006. I note that the application for review is relevantly reproduced at CB 43 to CB 46.
Applicant’s claims to protection
The applicant’s claims to fear harm in China, and in respect of which he sought protection in Australia, arise from the situation as claimed, that he was the vice-manager of a real estate development company which ultimately had been the subject of an audit investigation relating to the source of money involved in a real estate joint development venture with a company from Hong Kong. The applicant claimed that this occurred between April and July 2005 and that his company was accused of engaging in money laundering. Subsequent to this, the applicant accused government officials, and reported government officials as being corrupt. He was then arrested and company properties were seized and he was required to attend before security officials where he was questioned about the company’s operation.
The Tribunal
Upon receipt of the applicant’s application for review, the Tribunal acknowledged the application by letter dated 22 November 2006 (reproduced at CB 47 to CB 48) which on its face reveals that it was addressed to the address for service provided by the applicant in the application for review which was a post office box in Haymarket, New South Wales (see CB 45).) This letter set out the process by which the Tribunal would conduct the review and relevantly, notified the applicant of the possibility of being invited to a hearing before the Tribunal and of the importance of the hearing in the conduct of the review because it would enable him to give the Tribunal evidence to support his application.
A week later, on 29 November 2006, the Tribunal again wrote to the applicant. This letter is reproduced at pages 49 to 50 of the Court Book. By way of this letter the Tribunal invited the applicant to attend a hearing before the Tribunal scheduled for 12 January 2007. The letter advised the applicant that the Tribunal was unable to make a decision in his favour on the material that was before it and that therefore the purpose of the hearing was to enable the applicant to provide oral evidence and arguments to the Tribunal in support of his claims. The applicant did not appear before the Tribunal at the time, date and place scheduled for the hearing. Nor from the material that is before the Court does it appear that the applicant responded to the Tribunal’s invitation by way of completing and returning the response to invitation hearing form that the Tribunal had provided to him, nor that he had otherwise made any response to the Tribunal in relation to this invitation.
The Tribunal’s decision record is set out at CB 56 to CB 61. Given the applicant’s unexplained failure to attend at the hearing, the Tribunal proceeded to make its decision pursuant to the power given to it by s.426A of the Act. Any plain reading of the Tribunal’s decision record shows that the reason that the Tribunal affirmed the delegate’s decision was that, bearing in mind the statutory context within which the Tribunal is relevantly required to operate (ss.65 and 36(2) of the Act), the Tribunal was unable to reach the requisite level of satisfaction that, in effect, the applicant met the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention in circumstances where, if it had reached that level of satisfaction, the protection visa must be granted to the applicant.
As appears from the Tribunal’s analysis, reproduced at CB 60, the Tribunal formed the view that the applicant’s claims were lacking in essential detail, that there was no detail in the application as to anything that had happened to him since October 2005, that there was insufficient detail as to whether the applicant’s claimed fear had any Refugees Convention nexus and that, as the Tribunal had been unable to question the applicant in relation to the veracity of his claims, his claims were left unverified. In these circumstances, therefore, the Tribunal was not satisfied that the applicant had suffered persecution in the past, nor that he had a well-founded fear of persecution for any Convention reason if he were to return to China in the foreseeable future.
Application to the Court
The application made by the applicant to the Court puts forward three grounds:
“(a)The applicant was denied natural justice as the Tribunal failed to take into account all relevant matters.
(b)The Tribunal breached s.424A of the Migration Act as it failed to invite the applicant to comment on adverse information.
(c)The country information the Tribunal relied on was insufficient and incorrect.”
Hearing before the Court
Before the Court today the applicant appeared unrepresented. He was assisted by an interpreter in the Mandarin language. Ms M Mafessanti appeared for the first respondent. I also have before me written submissions filed on behalf of the first respondent. The Court took into evidence today the affidavit of Ms Mafessanti of 3 July 2007, with annexures.
Before the Court this morning the applicant recounted his circumstances in China, and briefly outlined his responsibility in the building industry in China, the joint venture with the Hong Kong company and the subsequent bankruptcy. The applicant stated that he came to Australia to do business because there was a fairer business environment in Australia.
When I explained to the applicant the difference in the role and function of the Tribunal and the Court in relation to the issue as to whether he should be granted a visa, relevantly, a protection or any other visa in Australia, the applicant explained that it was unfair that he had not appeared before the Tribunal, that he had applied for a protection visa, the Tribunal had refused it and that it was unfair because in Australia there were human rights. The applicant emphasised that he had lost money in business dealings in China, and further, that there was not enough evidence before the Tribunal to show that he could not become a refugee. I will return to these matters in a moment.
Ground One – Failure to consider relevant matters
The first ground in the application is that the Tribunal failed to take into account all relevant matters. I can only agree with the first respondent’s submissions that the Tribunal did have regard to all the information before it and did consider the applicant’s claims to fear persecution in China, both from government and security officials. The Tribunal set out in full in its decision record the applicant’s claims, but without anything further, and in circumstances where the applicant had been provided with the opportunity to provide something further, the Tribunal was unable to be satisfied. Due variously to the lack of essential detail, the insufficient detail and the unclarified and unanswered questions about his claim, it was unable to be satisfied that the applicant was a person to whom Australia owed protection obligations.
As noted above, the relevant statutory regime that applies to applications of this type provides that a protection visa must be granted if the Tribunal is satisfied that the applicant meets the requirements as set out in s.36(2) of the Act. In effect, this means that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. If this level of satisfaction is not reached, then the protection visa must not be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
The applicant was put on notice that on what was before it the Tribunal could not make a decision favourable to him. The applicant was also put on notice as to the importance of attending a hearing to provide evidence and further argument in support of the claims that he had put forward. Even today, let alone before the Tribunal, the applicant’s failure to attend the hearing remains unexplained. As has been described by a Full Federal Court in the matter of NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5], the inevitable consequence of that circumstance is that the application is refused.
Before the Court today the applicant stated that he had not appeared before the Tribunal. He said this was unfair but despite opportunity, the applicant gave no explanation as to any difficulty or indeed to otherwise explain his failure to appear. The applicant made no claim, let alone provide any evidence, as to any failure by the Tribunal to not only notify him but to properly notify him of the hearing. I note that ground (a) also claims a denial of natural justice, a matter to which I will return more fully in a moment.
Ground Two – Breach of s.424A of the Act
The second ground in the application, “ground (b)”, in the application asserts that the Tribunal breached s.424A of the Act as it failed to invite the applicant to comment on adverse information. The application itself is silent on what adverse information the applicant claims the Tribunal should have put to him for comment pursuant to s.424A. Nor has the applicant otherwise sought to explain this complaint before the Court. Plainly, in the circumstances of this case the obligation contained in s.424A(1) of the Act was not enlivened. The reason for the Tribunal’s decision was a lack of evidence or details necessary for the Tribunal to achieve the requisite mental state of satisfaction as to whether the applicant’s claimed fear was “well-founded” in a Refugees Convention sense.
In these circumstances, this complaint does not succeed. I note at para.12 of the first respondent’s written submissions the references to relevant authorities in support of what I have just said and I adopt these references for the purposes of this judgment (SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29], SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [22]-[23], SZCIC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA at [28]-[29], SZFWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238, SZIDH v Minister for Immigration and Citizenship [2007] FCA 369 at [17]-[21]).
Ground Three – Tribunal relied on insufficient country information
The third ground, “ground (c)”, asserts that the country information that the Tribunal relied on was insufficient and incorrect. Plainly, this complaint is simply not referrable to the Tribunal’s decision. In making its decision and reaching its conclusion the Tribunal did not have regard to any independent country information. It did not rely on any such information in its analysis and reasoning. This ground also does not succeed.
Further considerations
None of the applicant’s grounds as set out in the application succeed. To the extent that the applicant makes reference to a denial of natural justice as referred to in ground (a), this is explained above under ground one as being a failure to take into account relevant matters, an issue with which I have already dealt. But I should note that given that the applicant appears unrepresented before the Court today, and lest it should be said that what is set out in ground (a) is a general claim of a denial of natural justice, a matter touched on by the applicant today in terms of his claim that it had been unfair that he did not appear at the Tribunal hearing and that it was unfair that he was refused because there are human rights in Australia, in this context this is clearly a case to which s.422B of the Migration Act applies.
Section 422B provides that the matters set out in Division 4 of Part 7 of the Act are the exhaustive statement in relation to the natural justice hearing rule, of course absent bias (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).
In this context, as I have already said, s.424A is not enlivened, given the circumstances in which the Tribunal addressed the applicant’s claims. Further, the Tribunal did discharge its obligation pursuant to s.425 of the Act to invite the applicant to a hearing. I am satisfied from what appears in the Court Book, and on the evidence of Ms Mafessanti, that the applicant was invited to a hearing pursuant to s.425 by letter sent to him at the address for correspondence which he himself provided in his application for review to the Tribunal. The letter complied with the Tribunal’s obligations as set out in ss.425A and 426.
The letter was sent by one of the methods for such communication as set out in s.441A(4)(c) of the Act in that the document was sent by prepaid post within three working days of the date of the document to the last address for service provided to the Tribunal. Pursuant to s.441C(4), the applicant is deemed to have received this invitation to the hearing seven working days after the date of the letter. This means, as is correctly submitted at para.21 of the first respondent’s submissions, the applicant was deemed to have received the letter by 8 December 2006. The period of notice prescribed in reg.4.35D of the Migration Regulations1994 (“the Regulations”), that is, the prescribed period of notice for the scheduling of the hearing, would have expired on 23 December 2006, not October as stated in the first respondent’s submissions. In fact the hearing was scheduled for 12 January 2007, which plainly exceeded the requisite and relevant periods.
The Tribunal therefore complied with its obligations in terms of this prescribed period (and I refer here to s.425A(3) of the Act and reg.4.35D of the Regulations) in the setting of the scheduled date for the hearing. The letter also complied with the requirements of s.426 of the Act relating to the calling of witnesses. Further and relevantly, the letter complied with the obligation in s.425A(4) that the notice must contain a statement as to the effect of s.426A. That is, if an applicant is invited to appear before the Tribunal pursuant to s.425 and does not appear on the date on which, and 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 enable the applicant to appear before it.
In these circumstances, the Tribunal was clearly entitled to proceed pursuant to s.426A to make its decision when the applicant did not appear at the hearing. Nor is there anything before the Court now to show that the applicant sought any adjournment of that hearing date or that he put any explanation whatsoever to the Tribunal for any inability to attend. That the applicant therefore did not appear before the Tribunal, as I said earlier, remains unexplained even before the Court today. I cannot see on what is before me that the Tribunal acted unfairly in this regard, given the statutory context within which it was required to operate or indeed even if one were to apply concepts of fairness at general law. Nor was it unfair of the Tribunal to refuse the applicant simply on the basis, as the applicant asserts, that there are human rights in Australia.
The situation is that it is for an applicant to put his claims to protection before the Tribunal. It is for the Tribunal to provide the opportunity to an applicant to properly and fully explain their claims. As has been often held, the Tribunal does not have to uncritically accept anything, or indeed everything, that an applicant may put before it (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437). It is the case, as I have emphasised in the case before me today, that simply, on what was put before it, the Tribunal, as it is statutorily required to do, could not reach a level of satisfaction that the applicant in effect met the definition of a “refugee.” Given what I have just said, the applicant’s complaint before the Court today, that there was not enough evidence to show that he was not a refugee, or he could not become a refugee, also does not succeed.
The Tribunal is not obliged to disprove that an applicant is, or is not, a refugee. It is not for an applicant to make a mere assertion that he is a refugee and for the Tribunal then to have to find evidence to disprove an applicant’s mere claims. The relevant test, as I have now said on a number of occasions this morning, is whether the Tribunal as the relevant decision-maker is satisfied or not satisfied that in effect the applicant meets the definition of “refugee.” In this case, for reasons which it very clearly gave, the Tribunal could not reach that requisite level of satisfaction and found, therefore, that as it could not be satisfied, that the applicant was not a person to whom Australia owed protection obligations.
I cannot discern jurisdictional error in the Tribunal’s decision either by way of what has been put by the applicant or said by the applicant, or indeed otherwise. This application made to the Court is accordingly dismissed.
I am of the view that a costs order should be made in this matter. The applicant has put before the Court that it is difficult for him at the moment to pay a large amount of money. I can well understand that this may indeed be the case, but a lack of funds and the difficulty to pay amounts in costs is not a sufficient reason or such a sufficient reason, in my view, that a costs order should not be made. It was clearly the applicant’s right to come to this Court with his application and the applicant properly exercised that right, but as with the exercise of any right, there come consequences. The consequence for the applicant in this case is should his application have been unsuccessful, as it has been today, then he may be called upon to reimburse the first respondent for at least some of the costs that have been incurred in responding to what was his own application. It is therefore appropriate that a costs order be made today.
As to the amount, what the Court is guided by is what is reasonable in all the circumstances. I note that these matters are addressed in a relevant schedule to the Rules of this Court. I take the view that while I am not bound by what is set out in that schedule, it is a useful guide as to the range of costs that may apply in matters of this type. In any event, in all the circumstances, taking into account the work that would have been done and has been done by the Minister’s legal representatives, I am of the view that $2,600 is a reasonable amount and I will make an order in that amount.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 26 November 2007
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