SZKUI v Minister for Immigration
[2008] FMCA 126
•8 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKUI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 126 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China because of her practise of Falun Gong – applicant failing to respond to hearing invitation – Tribunal concluding that the applicant had chosen not to attend and that this was inconsistent with a genuine fear of persecution – Tribunal incorrectly finding that it had only one means of contacting the applicant – whether the Tribunal should have telephoned the applicant and whether it made an adverse credibility finding based on no evidence considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 425, 426A, 441A, 441C, 476 |
| Minister for Immigration v Mohammed [2000] FCA 1275 SZHSQ v Minister for Immigration [2006] FCA 1295 SZKUI v Minister for Immigration & Anor [2007] FMCA 1387 |
| Applicant: | SZKUI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1910 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 8 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2008 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr P Cleary |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1910 of 2007
| SZKUI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 28 November 2006. Background facts relating to the applicant's protection visa claims and the Tribunal decision on them are set out in the Minister's outline of submissions filed on 31 January 2008. I adopt as background for the purpose of this judgment, with minor amendments, paragraph 3 through to paragraph 21 of those submissions:
The applicant is a citizen of the People’s Republic of China (“PRC”). She arrived in Australia on 7 May 2006.
On 1 June 2006 the applicant lodged an application for a protection (class XA) visa (“PVA”) with the Department of Immigration and Multicultural and Indigenous Affairs as it was then known (“Department”).
In her PVA the applicant claimed she would be persecuted in the PRC by the Chinese authorities as she claimed to be a practitioner of Falun Gong and was being investigated by Chinese authorities.
On 31 August 2006 a delegate of the Minister refused to grant a protection visa to the applicant.
Proceedings in the Tribunal
The applicant filed an application for review of the delegate’s decision in the Tribunal on 27 September 2006[1].
[1] Green Book (“GB”) at 62-66.
On 10 October 2006 the Tribunal sent a letter pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) inviting the applicant to comment on certain information contained in her PVA (“s.424A letter”)[2]. The s.424A letter gave the applicant until 2 November 2006 to reply.
[2] GB at 71.
The applicant did not reply to the s.424A letter.
In an affidavit sworn on 4 September 2006 on behalf of the Minister, Mr Jonathan Willoughby-Thomas gives evidence that on 10 October 2006 the Tribunal sent the applicant a hearing invitation pursuant to s.425 of the Migration Act (“invitation to hearing”) dated 10 October 2006 inviting the applicant to attend a hearing at the Tribunal on 3 November 2006[3].
[3] See the affidavit of Jonathan Willoughby-Thomas sworn 4 September 2007 at paragraphs 4, 7, 10, annexures “E” and “D”, and in particular annexure “D” at page 16.
The invitation to hearing also requested the applicant send back to the Tribunal a completed ‘Response to Hearing Invitation’ form by 26 October 2006[4].
[4] GB at 72-73.
The applicant did not send the Tribunal a completed ‘Response to Hearing Invitation’ form.
A case officer from the Tribunal completed a ‘No Reply – Check List’ in respect of the invitation to hearing on 27 October 2006[5]. The case officer noted the Tribunal had not received a response to the invitation to hearing by 26 October 2006, and that the invitation had been sent to the correct address of the applicant.
The Tribunal scheduled the oral hearing on 3 November 2007. The applicant did not attend the hearing[6].
The Tribunal’s decision
On 3 November 2006 the Tribunal Member signed his decision and affirmed the delegate’s decision to refuse a protection visa.
In coming to its decision to affirm the decision of the delegate the Tribunal reviewed at length the claims and evidence. First, it reviewed the applicable law. It then set out the applicant’s claims. Finally, it set out its findings and reasons.
The Tribunal was not satisfied on the material before it that the applicant was a refugee.
The Tribunal was not satisfied the applicant was, as she claimed, a Falun Gong practitioner or that she is under investigation by the Chinese authorities[7].
Further, the Tribunal was not satisfied the applicant had any real chance of coming under investigation or suffering persecution should she return to China and therefore concluded the applicant did not have a well found fear of persecution for a Convention reason.
The ultimate reason for the Tribunal’s lack of satisfaction was the inadequacy in the applicant’s material and the lack of opportunity by the non-appearance of the applicant to explore the applicant’s assertions further[8].
On 19 June 2007 the applicant filed an application for judicial review in this Court.
[5] GB at 74.
[6] GB at 75.
[7] GB at 87
[8] GB at 87
The applicant continues formally to rely upon her application to this Court filed on 19 June 2007 and her supporting affidavit, which I received as a submission. However, I have already dealt with the issues raised in that application in an interlocutory judgment given on 15 August 2007: SZKUI v Minister for Immigration & Anor [2007] FMCA 1387. As I said in that judgment, there is no arguable case of jurisdictional error raised by the applicant in her application. Nevertheless, in a show cause hearing conducted by me on 15 August 2007, I identified two issues upon which I ordered the Minister to show cause why relief should not be granted. Those issues are referred to in the Minister's submissions.
The issues are, first, whether the Tribunal erred in proceeding in the absence of the applicant in reliance upon the discretionary power conferred by s.426A of the Act. In that connection, it is necessary to resolve whether the discretion was properly enlivened and, if so, whether the Tribunal erred in its exercise of the discretion. A related issue is whether the Tribunal should have telephoned the applicant on a mobile telephone number she had provided but which the Tribunal appears to have overlooked. The presiding member said (GB 84):
On 10 October 2006, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 3 November 2006. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. No response was received. The letter of invitation was not returned. No other information was held on either the tribunal's file or on the Departmental file to enable the Tribunal to contact the applicant. (emphasis added)
As I pointed out in my interlocutory judgment at [17], in fact, the applicant had provided a mobile telephone number both to the Department and to the Tribunal. The number was written on a form completed by a Tribunal officer for the purposes of the Tribunal hearing (GB 75).
The other issue is whether the Tribunal erred in drawing an adverse inference from the applicant’s failure to attend. The presiding member said (GB 87):
The applicant was warned by virtue of the Tribunal's letter of 10 October 2006 that it had concerns about her statement of claims. She has chosen not to reply or to attend a hearing, where she could have responded to those concerns. This is not the behaviour of a person with a genuine fear of persecution.
I have before me as evidence the green book filed on 13 July 2007. I also received the affidavit of Jonathan Willoughby-Thomas, a district registrar of the Tribunal, filed on 10 September 2007, and the documents exhibited to that affidavit. The affidavit is directed to the question of dispatch of the Tribunal's hearing invitation. Mr Willoughby-Thomas was not required for cross‑examination.
The orders that I made on 15 August 2007 included an order giving the applicant the opportunity to file affidavit evidence in reply no later than 30 November 2007. My intention was to give the applicant the opportunity to present evidence relating to the circumstances of her non‑attendance before the Tribunal. She has not taken up that opportunity.
The applicant has not filed written submissions, but took the opportunity to make oral submissions today. The applicant contends that the Tribunal should have telephoned her because she was waiting to hear about a hearing invitation, which she now claims not to have received. The applicant also submits that the Tribunal should not have drawn any adverse inference from her failure to attend. Further, the applicant contends that I should not accept the evidence of dispatch of the Tribunal's hearing invitation as proof that the hearing invitation was dispatched within three working days of the date that it bore, or at all.
The first issue is whether the Tribunal's discretion to proceed in the absence of the applicant was enlivened. The Minister's submissions deal with that issue at paragraphs 33 to 38. I agree with those submissions and adopt them for the purposes of this judgment:
The first issue concerns whether the Tribunal sent the invitation to hearing to the applicant within three days of the date that it bore as required by s.441A of the Act.
The first issue is a question of fact.
To answer this issue the Minister relies upon an affidavit sworn by Mr Willoughby-Thomas on 4 September 2007.
Mr Willoughby-Thomas is a District Registrar of the Tribunal. Mr Willoughby-Thomas gives evidence that the invitation to hearing was dispatched to the applicant by the Tribunal on 10 October 2006, being the date of the letter, to the last address for service provided to the Tribunal by the applicant in connection with the review: see in particularly paragraphs 4, 7, 10 and annexures “E” and “D” of the affidavit.
Based on the evidence of Mr Willoughby-Thomas the Court can be satisfied that the requirements of s.441A(4) of the Migration Act have been met. As the Tribunal gave the invitation to hearing in accordance with the requirements of s.441A(4) of the Act, the Tribunal was entitled to rely upon the presumption in s.441C(4) of the Migration Act and any presumption contained in the Evidence Act 1995 was thereby displaced by s.441C of the Act.
The discretion under s.426A is not enlivened unless the Tribunal sends the hearing invitation in accordance with s.425 of the Act. It follows from the operation of ss.441A(4) and 441C(4) in the present case that the applicant had been properly “invited under section 425 to appear before the Tribunal”: see s.425(1)(a). Consequently the discretion to proceed to make a decision on the review in the absence of the applicant under s.426A of the Migration Act was properly enlivened.
It is open to me to draw the inference from annexure D to Mr Willoughby‑Thomas' affidavit that the hearing invitation was dispatched on 10 October 2006. That was the same date that the letter bore. I draw that inference. It follows that the Tribunal met its obligations under the Migration Act to invite the applicant to a hearing, and the discretion conferred on the Tribunal by s.426A was enlivened. Although the decision of the Tribunal makes no positive finding as to the dispatch of the Tribunal letter, it appears that the presiding member, in stating that on 10 October 2006 the Tribunal “wrote” to the applicant, was prepared to draw the same inference that I have.
As a matter of good administration, where an applicant does not appear at a hearing and has not responded to a hearing invitation but has provided a telephone number for use by the Tribunal, it is, in my view, desirable for the Tribunal to seek to contact the applicant in order to clarify the circumstances. That is not, however, a legal obligation. I am bound by the decision of Rares J in SZHSQ v Minister for Immigration [2006] FCA 1295. His Honour deals with this issue between [46] and [68]. In that case the applicant had responded to the hearing invitation stating that she wished to appear and provided a telephone number. Rares J found no jurisdictional error in the Tribunal not attempting to contact the applicant by telephone to enquire about her non‑attendance. In this case, the applicant had not responded to the hearing invitation, and there would have been even less of an incentive for the Tribunal to make the attempt. While, as Rares J notes, many and possibly most decision makers would make an attempt to contact an applicant by telephone in circumstances of non‑attendance where a telephone number was provided, there is no jurisdictional error in failing to make that attempt where an applicant has been invited to attend by one of the means prescribed and has failed to respond or attend. It was open to the Tribunal to proceed in the applicant's absence pursuant to the discretion conferred by s. 426A and no jurisdictional error arises because of the failure of the Tribunal to telephone the applicant.
It does appear to me that the presiding member made a mistake of fact in stating that, apart from the address for service provided by the applicant, no other information was held on either the Tribunal's file or on the Departmental file to enable the Tribunal to contact the applicant. Counsel for the Minister suggested an interpretation of the sentence in bold at [3] above which would have restricted it to a reference to an alternative address for service. I do not think that interpretation is open in terms of the general words used by the presiding member. I find that the presiding member was mistaken in overlooking the telephone number provided by the applicant to both the Department and to the Tribunal. However, that error of fact cannot invalidate the exercise of discretion under s.426A of the Migration Act where there is no obligation on the Tribunal to make an attempt to contact the applicant by telephone.
The other issue concerns the adverse inference drawn by the Tribunal on the applicant's non‑attendance at the Tribunal hearing. I have some concern about the manner in which the Tribunal approached that issue. There is no evidence that the Tribunal knew that the applicant had chosen not to reply or to attend the hearing. She had simply not responded. It was a bold assumption by the presiding member that the applicant's non‑attendance was a matter of choice. It is particularly unfortunate that an adverse inference was drawn where the Tribunal had a simple means of attempting to check the circumstances but had overlooked it. If the adverse inference was material to the Tribunal decision, it would point to jurisdictional error for the reason that there was no evidence or other material supporting it. I agree, with respect, with the observations by Branson J in Minister for Immigration v Mohammed [2000] FCA 1275 at [55]‑[57]:
It accords both with common sense and legal principle that an unexplained failure by a party to give evidence, to call a witness or to tender documentary evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party's case (Cross on Evidence, Australian Edition, Butterworths para 1215). Whether the inference does arise in a particular case will depend upon whether, in the circumstances, it is to be inferred that the reason why the party did not give evidence, or call the witness or tender the documentary evidence was because the party feared to do so (Smith v Samuels (1976) 12 SASR 573 (FC)).
Plainly, if the reason why a party fails to give evidence is that he or she was not notified of the occasion on which it would have been appropriate for him or her to do so, no inference adverse to the party can be drawn from the failure to give evidence. This will be the case whether or not a statute provides that the party is to be taken to have received notification of the occasion.
If the Tribunal in this case drew an inference adverse to Mr Mohammad by reason of his failure to give evidence before it, it would have treated him unfairly. Mr Mohammad was not in fact given an opportunity to give evidence before the Tribunal because he received no notification of the scheduled hearing. If the adverse inference formed an essential link in the Tribunal's chain of reasoning, the decision of the Tribunal would be open to review on the basis that "there was no evidence or other material to justify the making of the decision" (ss 476(1)(g) and (4)(b) of the Act).
However, the adverse inference drawn by the Tribunal was not, in my view, determinative of the outcome of the case before the Tribunal. In the Tribunal decision (GB 86-87) under the heading “Findings and Reasons” the presiding member said:
Generally, where broad allegations are made, the Tribunal hearing is an opportunity for the Tribunal to gather detail about the claims with the applicant. The applicant had been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of her claims despite ample opportunity to do so. Nor has she given the Tribunal the opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered.
The applicant claimed that she started practicing Falun Gong three years ago and became a leader. However, she also claimed to have practiced at home to avoid detection. Had she come to the hearing to which she was invited, I would have wished to inquire as to what appear to be contradictory claims.
Her claims include no reference to her suffering in any way for her practice prior to her departure from China to visit Australia. She claimed that, since she arrived in Australia, her family told her that the Chinese authorities were investigating her. I would have wished to ask her why this should have happened. I would also have wished to find out if she had suffered any other form of persecution for her practice of Falun Gong. More fundamentally, I would have wished to satisfy myself that she is indeed a practitioner of Falun Gong.
I accept from those statements that, on the limited material before the presiding member, he was unable to reach the state of satisfaction required by the Migration Act in order to support a decision favourable to the applicant. The adverse inference drawn by the presiding member in the paragraph immediately following the passages I have quoted did not add anything to that lack of satisfaction. It would, in my view, have been better if the inference had not been drawn at all. However, the inference does not support a finding of jurisdictional error in the circumstances of this case.
I find that the Tribunal decision is free from jurisdictional error. It is, therefore, a privative clause decision, and the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs in the sum of $5,000. The applicant did not wish to be heard on costs. I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 February 2008
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