SZKJY v Minister for Immigration
[2007] FMCA 1717
•12 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1717 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – applicant declined invitation to hearing before Tribunal – s.424A obligations not engaged – no denial of procedural fairness – application dismissed. |
| Migration Act 1958, ss.425, 425A, 441A, 426A, 65, 32 Migration Regulations 1995, reg.4.35D |
| Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152; (2006) 154 FCR 572 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 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 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 SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 |
| Applicant: | SZKJY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 963 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 12 October 2007 |
| Date of Last Submission: | 12 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms S Kantaria |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 21 March 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 963 of 2007
| SZKJY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application filed in this Court under the Migration Act 1958 (Cth) (“the Act”) on 21 March 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 30 January 2007 and notified to the applicant by letter dated 20 February 2007, which affirmed the decision of the delegate of the first respondent Minister to refuse the applicant a protection visa.
Background
The applicant is a citizen of the People’s Republic of China (“China”) who, it appears, arrived in Australia with her son (who is not an applicant before the Court) on 16 September 2006 and who, together with her son, applied for a protection visa on 29 September 2006 (reproduced in the Court Book (“CB”) at CB 1 to CB 35, with annexures). On 21 October 2006, a delegate of the respondent Minister refused the application for a protection visa. On 22 November 2006, the applicant applied to the Tribunal for review of that decision.
For reasons which will become apparent, I note, relevantly, that in the application for protection visa, the applicant provided an address for correspondence (CB 50) which was the same as her residential address (CB 49). Further, in answer to the question as to whether the applicant had a migration agent to act for her, the applicant indicated at CB 49 that she did not have a migration agent.
The applicant’s claims to protection
The applicant’s claims to protection are set out in what appears to be a signed statement in Chinese characters, reproduced in the original (CB 28) and in translation (CB 27). The applicant put forward a number of hardships that she claimed had befallen her in China. She claimed that she commenced the practice of Falun Gong, that she came to the attention of the authorities, that she was advised by a director of her residential committee that her name was on a list of persons who were practising Falun Gong and that she would soon be visited by police. The applicant claims that she was aware of the killing of Falun Gong members so she decided to “bring my son to Australia.”
The Tribunal
By letter dated 29 November 2006, the applicant was put on notice that on the material before it, the Tribunal could not make a decision in her favour and was invited to attend a hearing before the Tribunal on 23 January 2007. (The invitation is reproduced at CB 53 to CB 62, with annexures.) I note that the letter was sent to the only address for service provided by the applicant, which was also her residential address. Enclosed with that invitation was a “Response to Hearing Invitation” form which the applicant was invited to complete. The Tribunal received a completed “Response to Hearing Invitation” form signed by the applicant on 22 December 2006, indicating that she did not wish to attend a hearing (reproduced at CB 63). The applicant did not attend a hearing before the Tribunal (CB 72.4).
The Tribunal’s decision record is before the Court by way of annexure to the applicant’s affidavit made on 16 March 2007 and is also reproduced at CB 69 to CB 74. The Tribunal’s decision record reveals that it noted that the applicant had been invited to a hearing and that she had advised the Tribunal that she did not wish to attend a hearing and consented to the Tribunal proceeding to make a decision on the application without taking any further action to enable the applicant to appear before it. The Tribunal proceeded to make a decision on the evidence available to it.
It is quite plain from the Tribunal’s reasons in its decision record that the applicant was ultimately unsuccessful before it because the Tribunal could not be satisfied, on what was before it, that the applicant was owed protection obligations by Australia (CB73.6). The Tribunal noted that the applicant had provided little detail to support her claims, that she had not provided enough information regarding her Falun Gong activities and beliefs, that she provided little detail of the nature and extent of her Falun Gong practice and that it could not determine from the evidence before it that the applicant was a person of interest to the authorities in China.
In all, therefore, as it had already notified the applicant by way of its letter of invitation to the hearing, the Tribunal found that given the absence of detail in the applicant’s claims, their general nature, and the fact that it had not been able to test the veracity ofs the applicant’s claims, it could not reach a level of satisfaction that the applicant had a real chance of persecution in China for any Refugees Convention reason (CB 74.2).
Application to the Court
The application filed on 21 March 2007 puts forward three grounds (without particulars):
“1. Jurisdictional error has bee made.
2. Procedural Fairness has been denied.
3. RRT did not give me letter to explain doubts.”
[Errors in Original]
The applicant asks this Court to make orders as follows:
“1. Order to set aside RRT’s decision.
2. Review my case again by RRT, I will attend interview.”
I understand this to mean that if the matter were remitted to the Tribunal, on this occasion, the applicant would choose to attend a hearing before the Tribunal. I also note that the applicant’s affidavit filed with her application annexing the Tribunal’s decision record asserts that the applicant would be persecuted were she to return to China.
Hearing before the Court
The applicant appeared in person with the assistance of an interpreter in the Mandarin language. Ms S Kantaria appeared for the first respondent. [I also have before me written submissions filed on behalf of the first respondent on 5 October 2007.] I note also the affidavit of Ms Saloni Kantaria, a solicitor in the employ of the first respondent’s solicitors, sworn 4 October 2007, which annexes documentation (“Annexure A”) relevant to the second communication from the Tribunal to the applicant, that is, its letter of 29 November 2006 inviting the applicant to attend a hearing (reproduced at CB 55 to CB 56).
The applicant told the Court this morning that:
1)She did not go to the Tribunal hearing because her agent told her that could either choose to go or not go, ad therefore did not go.
2)That she was associated with Falun Gong and one of her masters was detained, and therefore she came to Australia.
3)That her younger sister also practised Falun Gong with her. She escaped because she was sought by the authorities and is still in hiding and that the applicant is scared to go back to China.
As I have already noted, the Tribunal put the applicant on notice by its letter of 29 November 2006 that on what was before it, it could not make a decision in her favour. It therefore invited her to a hearing for the express purpose of giving evidence and explanations in support of her claims. On the evidence before the Court today, this letter was sent to the only address for service, indeed the only address provided by the applicant to the Tribunal. I note in particular that the date of the letter was 29 November 2006 and that the hearing was scheduled for 23 January 2007.
On the material that is before the Court today, I agree with submissions made by the respondent's representative that the Tribunal's letter and its action in sending the letter complied with the Tribunal's obligations pursuant to ss.425, 425A, and 441A(4) of the Act, and reg.4.35D of the Migration Regulations 1995 (“the Regulations”). That the applicant received this letter can be seen by her reply (reproduced at CB 63) that, amongst other things, notified the Tribunal that she did not wish to attend the hearing. The applicant has not put anything before the Court to challenge this conclusion. In fact, implicit in what the applicant told the Court today is that she did respond to the Tribunal's invitation to hearing.
The Tribunal's decision record does not specify with reference to any part of the Act whether the Tribunal proceeded to make a decision pursuant to s.426A of the Act or whether it proceeded in light of what is set out in s.425(2)(b) of the Act. From what is set out at CB 72.4, it appears that the Tribunal proceeded in circumstances where the applicant was said to have consented to the Tribunal proceeding to make a decision without taking any further action.
In any event, whatever the situation, the applicant certainly did not appear at the scheduled time, date and place for the Tribunal hearing, and in those circumstances the Tribunal was entitled to exercise its discretion and to proceed to a decision pursuant to s.426A of the Act. In the alternative, in my view, the applicant's advice to the Tribunal was that she consented to the Tribunal proceeding to make a decision without her appearing before it. With reference to Full Federal Court authority in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152; (2006) 154 FCR 572, the Tribunal's obligation in relation to s.425(1) of the Act at that time ceased. That is, its obligation to invite the applicant to a hearing ceased to exist when the applicant consented to the Tribunal deciding the review without her appearing before it.
The absence of any specific reference in the Tribunal’s decision record to the power in the Act to proceed does not in my view detract from the validity of its actions. The Tribunal's reasons for deciding to proceed in the way that it did, and the circumstances relevant to that decision, are plainly set out at CB 72. On any plain reading of its decision record, the Tribunal could not be satisfied that the applicant was a person to whom Australia owed protection obligations (SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 (“SZEZI”) at [29]). In my view, the Tribunal was entitled to reach this view on what was before it. I have already made reference to a lack of detail.
Ground One – Jurisdictional error
Ground one in the application asserts jurisdictional error, but no particulars whatsoever are provided. Simply, I cannot discern jurisdictional error on the material that has been put before the Court now.
Ground Two – Denial of procedural fairness
Ground two in the application asserts, again without particulars, that the applicant was denied procedural fairness. I note in this regard that this is a case to which s.422B of the Act applies, making the matters set out in 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]). In any event, I cannot discern any denial of procedural fairness.
As noted above, the applicant was invited to the hearing, was told about the importance of the hearing, and chose not to come to the hearing. The result, as has been described by the Full Federal Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287, is the inevitable consequence that the Tribunal could not reach the requisite level of satisfaction. I note also that the relevant statutory regime in this regard is to be found in ss.65 and 32(2) of the Act, which mandates that a protection visa be granted where a Tribunal is satisfied that, in effect, an applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees' Convention. Conversely there is authority that in these circumstances where the requisite level of satisfaction cannot be reached then a refusal is mandated (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).
I should also just note, as submitted by the first respondent with reference to s.424A of the Act and to what was said in SZEZI (at [29]), that there is no breach of any obligation pursuant to s.424A(1) of the Act in circumstances where the reason for the Tribunal's decision was its inability to reach the requisite level of satisfaction on what had been put before it. Simply, in these circumstances the obligation set out in s.424A(1) of the Act is not engaged.
Ground Three – No opportunity to explain doubts
Ground three in the application asserts that the Tribunal did not give her a letter to explain doubts. To the extent then that this may be some reference to a failure pursuant to s.424A(1) of the Act, then I have dealt with that above. I note that, in any event, the Tribunal, by way of its letter of invitation to the hearing, told the applicant of its preliminary view of her claims and that it was for the applicant to attend the hearing and provide evidence and argument such that she could persuade the Tribunal to reach the requisite level of satisfaction.
Matters raised at the hearing by the applicant
In relation to the matters raised by the applicant today, that is, her statements from the Bar table relating to her association with Falun Gong, her fears, and her younger sister's situation, do not, in the circumstances, rise above a request for this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Similarly, the applicant's statement from the Bar table that she did not go to the Tribunal hearing because her agent told her that she could choose whether to go or not to go, and therefore she did not go, do not raise any concern in light of the matters set out by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35.
There is no evidence before the Court of any fraud on the part of any migration agent such as could be said that such fraud affected the exercise of the Tribunal's jurisdiction as set out in Division 4 of Part 7 of the Act. So far as the allegation of fraud goes, there is no indication as to what constituted the alleged fraud given that the applicant's statement from the Bar table is simply that she was advised that she could go, or not go, to a hearing before the Tribunal, that she could choose, and ultimately, she did not go. If anything, this would support the inference that the applicant acted with informed consent. That is, that the consent given was based on information as to the choice available to her.
Even putting this to one side, and accepting the applicant's statement at face value that she had received advice, there is nothing in the material before the Court to show that the applicant had in fact engaged any migration agent. Indeed, in her application to the Tribunal there is a very clear indication in answer to the question of whether she had an advisor to act for her, the answer is given as “no.”
But even accepting the applicant's statement to the Court today that she did have a migration agent, as I have said there is nothing before the Court to show that the applicant's response to the Tribunal that she chose not to go to the hearing was given in any circumstances such as to reveal jurisdictional error in the Tribunal's decision.
In addition, I note that the applicant stated to the Court today that she could not read English and that therefore she used the migration agent to assist her. As I have already noted, and as Ms Kantaria submitted, the claim to have used a migration agent was not raised in the application, was not even raised before the Tribunal, and was raised for the first time today. As to the applicant's claims that she could not read English, the relevance of this is that she therefore could not understand what it was that she was doing in filling out the relevant communications and forms to the Tribunal. I note Ms Kantaria's submission that the Tribunal's invitation to a hearing had annexed to it relevant advice in a number of languages which, from what appears at CB 61 in English is as follows:
“This letter is important and requires your urgent attention. If you do not understand this letter please call the Translating and Interpreting Service (TIS) on 131450 so they can help you to contact the Tribunal.”
This advice is translated, relevantly for the applicant, in both a Chinese simplified and Chinese traditional format, as reproduced at CB 62.
If the applicant could not speak English, and did not have assistance, the Tribunal had clearly pointed her in the direction that she could take. If she did have assistance by way of some agent, albeit not one that she notified to the Tribunal, what remains from what the applicant has told the Court today (and I note that this is not by way of any evidence but by way of statements from the Bar table), was that in relation to the invitation to hearing she was advised that she could either go or not go, that there was a choice, and that on that basis, therefore, she did not go to the hearing.
In all therefore, neither by way of what is set out without particulars in the application before this Court, nor by what the applicant has told the Court today, nor otherwise from the material before the Court, can I discern jurisdictional error in the Tribunal's decision. Accordingly, the application to the Court is dismissed.
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: 23 October 2007
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