SZKHY v Minister for Immigration
[2007] FMCA 1771
•19 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1771 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – notice of change of address not provided to the Tribunal – Tribunal complied with obligations pursuant to s.425 of the Act – no failure pursuant to s.424A of the Act – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.425, 441A(4), 441C(4), 424A Migration Regulations 1994, reg.4.35D |
| 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 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; (2004) 140 FCR 572 Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 SZEZI v Minister for Immigration and Multicultural 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 SZIDHv Minister for Immigration and Citizenship [2007] FCA 369 |
| Applicant: | SZKHY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 781 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 19 October 2007 |
| Date of Last Submission: | 19 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Mr M D Snell |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 7 March 2007, as amended on 31 May 2007, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,730.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 781 of 2007
| SZKHY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court under the Migration Act 1958 (Cth) (“the Act”) on 7 March 2007, and amended on 31 May 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), which was signed on 18 October 2006 and appears to have been handed down on 9 November 2006. This decision affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
I have before me a bundle of relevant documents, which I will refer to as the Court Book (“CB”), filed by the first respondent’s solicitors in this matter on 24 April 2007 in accordance with orders made by a Registrar of this Court. This documentation reveals that the applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 24 November 2005, and applied for a protection visa on 28 November 2005 (reproduced at CB 1 to CB 27). On 20 February 2006, a delegate of the respondent Minister refused to grant the protection visa. On 27 March 2006, the applicant applied to the Tribunal for review of that decision.
The applicant’s claims to protection
The applicant’s claims to protection are set out in a statement attached to her application for a protection visa (CB 27). The applicant claimed to be a Falun Gong practitioner in China. She claimed to have participated in activities protesting against the Chinese government’s “crackdown” on Falun Gong practitioners. She claimed that she was taken by police and interrogated for 24 hours during which she was tortured and deprived of sleep and food. She claimed to have obtained a Chinese passport in June 2003 but claimed that she was not successful in leaving China until November 2005. In all, the applicant claimed to fear persecution by the Chinese government.
Background to the Tribunal
By way of background to the Tribunal’s decision, I should note the following events because they are relevant in understanding the applicant’s complaints as put before the Court now:
1)On 30 January 2006, the Department received a “Change of Address” form from the applicant, signed on 27 January 2006, advising that her address for correspondence had changed to an address in Pitt Street, Sydney (CB 28 to CB 29). This document contains a second date stamp indicating date of receipt of 20 February 2006 (CB 28).
2)On 20 February 2006, the delegate’s decision was signed and was sent to the applicant’s address for service on 21 February 2006 (CB 37 [and CB 38]).
3)On 27 March 2006, the Tribunal received the applicant’s application for review (CB 40 to CB 43). The address for service given to the Tribunal was a post office address in Haymarket, New South Wales.
4)On 4 September 2006, the Department, not the Tribunal, received a “Change of Address” form from the applicant, signed on 30 August 2006 advising that her address for correspondence had changed to an address in Fairfield, New South Wales, which was also her residential address (CB 44 to CB 45). Again, I note that both “date received” stamps appearing on the face of this document (see CB 44) are date stamps by the Minister’s Department.
5)On 14 September 2006, the Tribunal wrote to the applicant at her Haymarket address inviting the applicant to a hearing before it on 17 October 2006 (CB 46 to CB 47).
6)The applicant did not appear before the Tribunal on 17 October 2006 (see the Tribunal Hearing Record reproduced at CB 48 to CB 49 and its decision record at CB 57.3).
7)On 20 October 2006, the Tribunal wrote to the applicant at Haymarket post office address inviting the applicant to attend the handing down of its decision on 9 November 2006 (CB 50 to CB 51).
8)On 9 November 2006, the Tribunal wrote to the applicant at her Haymarket address notifying her of its decision and enclosing the decision record (CB 52).
9)On 12 February 2007, the Tribunal received, via facsimile transmission, a “Change of Details” form that appears to be signed by the applicant and dated 30 August 2006 (CB 60). Handwritten at the top of this form is the following:
“Please send a copy of my decision to the new address To: Tony from …”
The address that is notified in this document is a Fairfield, New South Wales, address.
The Tribunal
The Tribunal’s decision record reveals that it found that the material put forward by the applicant in her original application to the Department was “scant and lack[ing in] detail” (CB 57.7). It found that the brevity of the applicant’s statement was not such as could satisfy the Tribunal as to the truth of her claims (CB 57.8). It noted that having been deprived of hearing the applicant in person in relation to her claims (CB 57.9), it concluded that the applicant was not a Falun Gong member, nor that the applicant had experienced adverse attention from authorities in China (CB 58.3).
While the Tribunal acknowledged country information that indicated that there had been a government (presumably, the Chinese Government) “crackdown” on Falun Gong and that this had caused difficulties for practitioners in China, it ultimately found that the lack of detail from the applicant and the inability of the Tribunal to obtain from the applicant details, for example, that could have been given at the oral hearing, left it unsatisfied as to the applicant’s claims. In all, therefore, it found that the applicant did not have well-founded fear of persecution in China for a Refugees Convention reason and affirmed the delegate’s decision.
The application to this Court
The amended application filed on 31 May 2007 puts forward two grounds (with particulars):
“1. The Tribunal erred in law by proceeding in its decision on the basis that the Applicant had been offered a proper opportunity to appear at a hearing before the Tribunal and had given no reason for failing to appear. The requirement that an Applicant be offered the opportunity to attend a hearing before the Tribunal is mandatory, subject to the limited exceptions of section 425 of the Migration Act 1958 which do not apply in the present case. The purpose of the obligation is, in part, to allow the Applicant an opportunity to put her case before the Tribunal and to allow the Tribunal to test the Applicant’s claims and evidence.
The Tribunal was wrong in fact in assuming and then finding that the Applicant had been offered the opportunity to attend a hearing as required by the Act. In her Application for Review to the Tribunal lodged on 27 March 2006 the Applicant gave her mailing address (being the address for service) as ‘K910, Haymarket Post Office, Haymarket, NSW. However on 5 September 2006 (as date stamped) the Applicant lodged with the Department of Immigration and Multicultural and Indigenous Affairs a ‘Change of Address’ form by which she changed her address for correspondence and service to ’26 Cathcart St, Fairfield, NSW, 2165’, being the same as her new residential address. The document is signed by the Applicant on 30 August 2006 and the change of service address is effective from that date. This document is at pages 44 and 45 of the Court Book, but is not listed in the Index to Court Book after document No: 9. However document No: 9 is described in the index as a ‘Letter from the RRT to the Applicant acknowledging receipt of the Applicant for Review’, but no such document appears to be in the Court Book. The Tribunal’s letter to the Applicant inviting her to attend a hearing at the Tribunal is dated 14 September 2006, being 9 days after the change of address form was lodged, but was sent to her old address and therefore to an incorrect address. As a consequence the Applicant asserts that she did not receive that invitation to attend the hearing in accordance with the Tribunal’s obligation.
In addition, the document at page 60 of the Court Book is a ‘Change of Contact Details’ form in respect of the Tribunal. It is also dated 30 August 2006, but there is no ‘date stamp’ of the Tribunal. It also gave ’26 Cathcart St, Fairfield, NSW 2165’ as the new address for service. Despite the undated handwritten note at the top of that document, it is the Applicant’s understanding and submission that this document was lodged on her behalf by a person filed by a person known to her as a ‘Migration Adviser’ at or about the same time as the other document was filed in the Department on 5 September 2006. Given that the document is not date stamped by the Tribunal, the Applicant argues that in this jurisdiction she should be given the benefit of the doubt and her submission accepted. Even if this document was not filed on or about the date claimed by the Applicant, it is submitted that the Tribunal was sufficiently and constructively advised of her new address for service on 5 September 2006 when the change of address form was lodged with the Department. The Tribunal’s failure to send the letter of 14 September 2006 to her new and correct address amounts to a total failure by the Tribunal to invite the Applicant to a hearing as required by the Act.
It is apparent from the whole of the Tribunal’s ‘Findings and Reasons’ that the assumption the Applicant had been invited to the hearing but chose not to attend to give evidence was central to its determination that the Applicant is not a refugee on the basis of her claimed membership of Falun Gong. In reaching this conclusion the Tribunal proceeded on an incorrect finding of fact, and therefore applied the relevant law incorrectly to the Applicant’s circumstances. In particular, the Tribunal accepted that ‘…there is clearly material which could indicate a well-founded fear of harm amounting to persecution for some Falun Gong Practitioners’ (see page 6 of the decision, being page 58 of the Court Book), but was not satisfied on the evidence before it of the Application’s involvement and interest in Falun Gong. In reaching this conclusion the Tribunal placed significant weight on the Applicant’s non-attendance at the hearing.
The Tribunal erred in reaching its findings of fact and therefore its conclusions, and as a consequence its determination that the Applicant is not a refugee on the basis of her being a Falun Gong practitioner is affected by jurisdictional error.
2. The Tribunal acted in breach of section 424A of the Migration Act 1958 and in breach of the rules of procedural fairness and/or natural justice by failing to put to the Applicant for comment the independent country information on which it actually relied in making its determination. As a consequence the decision is affected by jurisdictional error and must be set aside.
By way of particulars it is evident from the Tribunal’s references at paragraph 8 page 4 and paragraph 1 page 5 of its decision (pages 56-57 of the Court Book) that it took into account country information possibly adverse to the Applicant regarding the situation for Falun Gong practitioners in China and the treatment of Falun Gong practitioners by the Chines authorities. This evidence included specific reports from Human Rights Watch 2002; DFAT Report 162; and the US Department of State Country Report on Human Rights Practices 2004: China. The Tribunal did not provide copies of these reports or this evidence to the Applicant, failed to put such information to the Applicant for comment, and failed to provide a proper opportunity for the Applicant to respond to that information. As a consequence the Tribunal’s decision is affected by jurisdictional error.
The Applicant relies in this regard on the decisions of SZAGF v MIMIA (2004) 82 ALD 364 and MIMIA v NAMW & Others [2004] FCAFC 264 (23 September 2004, especially at pars. 144-145), and on the decision of Re Minister for Immigration and Multicultural Affairs and Anther; Ex Parte Mia (2001) 206 CLR 57 to the effect that the presence of section 424A does not, of itself, preclude the continued existence of the common law requirements of natural justice.”(Errors in Original)
I note that the amended application is signed by “A Nicholl” on behalf of the applicant.
At the hearing before the Court
At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Mandarin language. [Mr M D Snell appeared for the first respondent. I also have before me written submissions filed on behalf of the first respondent on 10 October 2007.]
I note that in preparing the amended application, the applicant has obviously had the benefit of legal assistance. It was always open to the applicant and to the legal adviser who assisted her to put the matters set out in the amended application in a proper evidentiary context so that these matters could be properly tested. If a migration agent had been involved, or if communications had been made, these are all matters that could have been, and should have been, put to this Court in some evidentiary context. But even further, and in any event, on the material that has been put before this Court (in the Court Book), there is no reference to any migration agent acting for the applicant, either appearing in the application for review or otherwise. I should also note in this regard, that beyond a mere reference by the person drafting the amended application to the applicant’s understanding that the migration agent had been involved, there is no other notification to the Tribunal of any such person having played a role in proceedings before the Tribunal.
Ground One – Failure to invite the applicant to a hearing (s.425 of the Act)
[The first ground in the amended application complains that the Tribunal failed to afford the applicant the opportunity of a hearing before it.] In light of the absence of any notification to the Tribunal that a migration agent was acting for the applicant, and taken together with the Tribunal’s letter (reproduced at CB 61), a clear inference can be drawn that the document reproduced at CB 60 (see above at [5], item 9) was sent to the Tribunal on a date well after the date of the letter of invitation to the hearing and well after the date the Tribunal made its decision, irrespective of whenever the document may have been signed by the applicant. Further support for this inference can be drawn from the handwritten notation at the top of the document at CB 60 asking that “a copy of my decision be sent to the new address.” In all, therefore, the Tribunal did comply with its obligation to invite the applicant to a hearing. On what is before the Court, the letter complied with all the obligations set out in s.425A of the Act and with the relevant notice periods imposed by ss.441A(4) and 441C(4) of the Act and reg.4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”). Ultimately, the applicant did not attend at the time and date scheduled for the hearing and in those circumstances the Tribunal was entitled to exercise the discretion available to it pursuant to s.426A of the Act to proceed to making a decision on the review without taking further action to enable the applicant to appear before it.
The applicant submits that the Tribunal should be taken to have had constructive knowledge of the change of address either because this notification was sent to the Minister’s Department or because in some way it arose out of the change of contact details reproduced at CB 60. Such a proposition ignores the separate entities involved in that matter. In any event, this proposition was put to the Court without reference to any relevant authority in support. As was also submitted on behalf of the Minister, such a proposition is contrary to the provisions and the plain language of s.441A(4)(c)(i) of the Act.
To the extent that this ground seeks to rely on assertions that the rules of common law procedural fairness (procedural fairness at general law), I note that this is a case to which s.422B of the Act applies making Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (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].) It is of note that the amended application, prepared by a lawyer, appears silent on the authorities in support of the proposition just put.
The applicant asserts that the common law rules of natural justice apply and cites Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; (2004) 140 FCR 572 (at [140]-[144]), Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57. The reliance on these authorities in this regard is, as I have indicated, misconceived in that the circumstances before the courts in those authorities were concerned with situations to which s.422B of the Act did not apply.
Ground Two – Failure to invite the applicant to comment (s.424A of the Act)
Ground two in the amended application complains that the Tribunal failed to invite the applicant to comment on certain independent country information upon which the Tribunal relied in making its decision to affirm the decision to refuse a protection visa to the applicant. This is said to be with reference to s.424A of the Act.
What can be seen from the Tribunal’s decision record is that it did make reference to country information in its analysis (see for example, CB 58.1). However, in my view, this reference does not enliven the obligation set out in s.424A(1) of the Act in that such information does not come within the understanding of the word “information” as explained by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) (at [17] and [22]). The reason, or a part of the reason, for affirming the decision under review was that the Tribunal was unable to reach the requisite level of satisfaction that the applicant was a person to whom Australia owed protection obligations.
The country information referred to by the Tribunal, which confirmed the Chinese Government’s crackdown on Falun Gong and the difficulties for Falun Gong practitioners, cannot itself be said to be information that the Tribunal considers to be a reason or a part of the reason for affirming the decision under review. As with the situation in SZBYR, this country information on its terms and in its terms did not go to reject the applicant’s claims; if anything, it was supportive of the applicant’s claims. Even if the material was “information” for the purposes of s.424A(1) of the Act, then in my view, as the Minister submits, it squarely falls within the exception set out in s.424A(3)(a) of the Act. The information was not specifically about the applicant or another person but was just about a class of persons of which the applicant claimed to be a member (QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]-[14], endorsed by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; (2004) 140 FCR 572 at [71]).
I should also note that the Tribunal’s reference to the applicant’s claims as they were put in the protection visa application lodged with the first respondent’s Department does not enliven s.424A(1) of the Act (SZEZI v Minister for Immigration and Multicultural 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, SZIDHv Minister for Immigration and Citizenship [2007] FCA 369). Plainly, the reason for the Tribunal’s decision was the lack of evidence, that is, the lack of detail provided by the applicant in her claims, such that the Tribunal was not able to reach the requisite mental state of satisfaction that the applicant had a well-founded fear of persecution for a Convention reason. In all, therefore, the Tribunal, having complied with its statutory obligation to invite the applicant to a hearing, proceeded to make a decision on the review pursuant to s.426A of the Act when the applicant did not appear at the scheduled time, date and place for the hearing. As I have already said, no error is revealed by the Tribunal’s conduct in this regard.
The Tribunal was unable, on what was before it, to reach the statutorily required level of satisfaction that the applicant was owed protection obligations by Australia. It gave reasons for this which were plainly open to it on what was put before it, and it affirmed the decision under review on this basis. I cannot discern jurisdictional error in what the Tribunal has done. The application is therefore dismissed.
I should also just note that to the extent that I have made comments about deficiencies in the way that the applicant’s case has been put before the Court by way of the amended application, I do appreciate the assistance that lawyers in the panel scheme provide to applicants such as the applicant appearing before me today. Nonetheless, I do not resile from comments made earlier but merely note the difficulties that may be faced by members of the legal advice panel in providing assistance to applicants in these matters.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 1 November 2007
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