SZLCG v Minister for Immigration
[2008] FMCA 22
•31 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLCG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 22 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – invitation to applicant to attend Tribunal hearing returned to Tribunal prior to decision – nevertheless, invitation taken to have been given by virtue of statutory provisions concerning service – applicant did not attend the Tribunal hearing – Tribunal proceeded to decision knowing that applicant had not actually received invitation – no error in proceeding to decision – exercise of discretion whether to reschedule hearing did not miscarry. |
| Migration Act 1958, ss.36, 65, 360, 420, 422B, 425, 425A, 426A, 441A, 441C, 474 Migration Regulations 1994, reg.4.35D |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 |
| Applicant: | SZLCG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2272 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 December 2007 |
| Date of Last Submission: | 12 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2272 of 2007
| SZLCG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was a Falun Gong practitioner. He alleges that while in China he practised and spread Falun Gong and that this subsequently led to him being forced to attend re-education courses where he was treated badly both mentally and physically. The applicant arrived in Australia on 18 January 2007.
The applicant claims to fear persecution in China because he is a Falun Gong practitioner.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
24 February 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 5 of the Tribunal’s decision (Court Book (“CB”) pages 57 – 58). Relevantly, they are in summary:
a)in 1998 the applicant began to study and practise Falun Gong after being introduced to it by friends. Many of his friends became interested in learning Falun Gong in order to improve their health;
b)the applicant practised with friends in parks and at home;
c)when Falun Gong was banned in July 1999, Falun Gong organisations were forced to close in China and many Falun Gong members and practitioners were arrested and imprisoned or had their movement restricted;
d)in 2001 the applicant was called to the local police station to confess his “misdeeds” in learning, practising and “spreading” Falun Gong;
e)the applicant refused to make any admissions and a month later he was dismissed and forced to attend re-education courses for Falun Gong practitioners. He was treated badly both physically and mentally. The applicant and others were forced to confess that they wanted to subvert the government and to conduct illegal activities by practising Falun Gong; and
f)borrowing money from friends, the applicant managed to obtain a passport by bribing the “passport issuing police”. The applicant feared that he would be punished even more severely if he returned to China.
The Tribunal’s decision and reasons
On 2 April 2007 the Tribunal wrote to the applicant to advise that it had considered all the material before it in relation to his application but was unable to make a favourable decision on that information alone (CB 43). The Tribunal invited the applicant to a hearing on 2 May 2007 to give oral evidence and present arguments. The applicant was advised that if he did not attend then the Tribunal might make a decision on his application without further notice. No response was received from the applicant who did not appear before the Tribunal on the day and at the time he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal was not satisfied that the applicant was or is a Falun Gong practitioner or that he was involved in promoting or “spreading” Falun Gong, noting that the applicant gave only a brief outline of his claims which were lacking in crucial detail and gave few details of the extent and nature of his practice;
b)the Tribunal was not satisfied that the applicant was questioned by police in 2001 and subsequently forced to attend re-education, noting that the applicant gave few details of:
i)the circumstances in which he was questioned by police in 2001;
ii)the circumstances leading to him being required to undertake re-education; and
iii)the circumstances of the physical and “spiritual” harm that he claimed he suffered.
Consequently, the Tribunal was not satisfied that the applicant suffered serious harm in China amounting to persecution for a Convention reason or that there was a real chance that he would be so persecuted in China in the reasonably foreseeable future.
Proceedings in this Court
The grounds of the application were pleaded as follows:
1. I would be persecuted if I go back to China because I was a Falun Gong practitioner.
2. The Tribunal failed to consider the current situation in China.
3. The making of the decision was an improper exercise of the power conferred by the Migration Act.
Dealing with each of these grounds in turn:
The applicant would be persecuted if he returned to China
This asserted ground of review invites the Court to embark on a review of the applicant’s claim to be entitled to a protection visa. That is not possible in judicial review proceedings such as these. It is for the Tribunal to inquire into and make findings on the facts alleged by the applicant and the merits of his claim. It is for the Court to determine whether the Tribunal has applied the law correctly and has followed proper procedures.
This ground also ignores the fact that it is for the applicant to satisfy the Tribunal that he meets the criteria for a protection visa. Although concepts of onus of proof, as understood in the context of litigation, are not appropriate in the context of the Tribunal’s review, it is nevertheless incumbent on the applicant to put before the Tribunal such evidence and arguments as will lead it to the satisfaction required by ss.65 and 36 of the Act. In this case, the Tribunal’s s.425A letter dated 2 April 2007 indicated to the applicant that it was not in a position to make a decision in his favour based on the material then in its possession. As the applicant did not appear at the Tribunal hearing, it is hardly surprising that the Tribunal reached the conclusion that it did.
Consequently, jurisdictional error has not been demonstrated in respect of this asserted ground of review.
The Tribunal failed to consider the current situation in China
As already considered in the context of the first asserted ground of review, it is for the applicant to satisfy the Tribunal that he meets the criteria for a protection visa. In this case, the applicant did not put before the Tribunal information concerning “the current situation in China” other than what was contained in his statement accompanying his visa application which information was referred to by the Tribunal in its decision.
To the extent that this asserted ground of review might be suggesting that the Tribunal had a duty to inquire into “the current situation in China”, it is misconceived. Except possibly in very limited circumstances, which do not exist here, the Tribunal has no duty to make inquiries. The corollary of this is that the Tribunal was under no obligation to inquire into “the current situation in China” with the result that its failure to consider such circumstances does not amount to jurisdictional error.
Improper exercise of the powers conferred
This asserted ground of review suggests that, in the circumstances, the Tribunal should not have proceeded to a determination under s.426A. However, all the statutory criteria permitting a decision to be made under s.426A were satisfied.
Section 425(1) provides:
(1)The Tribunal must 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.
Section 425A provides:
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies–by one of the methods specified in section 441A; or
(b)…
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4)The notice must contain a statement of the effect of section 426A.
The s.425A notice reproduced at CB 43 and the envelope reproduced at CB 47, show that the notice, addressed to the applicant at the address given by him in his application to the Tribunal, was dated 2 April 2007 and was dispatched by post by the Tribunal on that day. Further, in this regard, the Tribunal said at p.4 of its decision (CB 57) that it wrote to the applicant on 2 April 2007 and this is confirmed by Annexure A to the affidavit of Megan Louise Palmer sworn 24 September 2007. I find that the letter in question was sent to the applicant on 2 April 2007 and invited the applicant to a hearing on 2 May 2007.
In relation to the dispatch of the s.425A notice, s.441A(4) provides that the notice may by effectively sent to the applicant by prepaid post to the last address for service provided by the applicant to the Tribunal as long as it is posted within 3 working days of the date of the letter. By dispatching the s.425A letter on 2 April 2007 to the address given by the applicant in his application to the Tribunal, the Tribunal satisfied the requirements of this section.
Section 441C(4) provides that if a notice is sent to an applicant in accordance with s.441A(4) and is sent from an address in Australia to an address in Australia, then it is taken to have been received 7 working days after the date of the document. Because the Tribunal complied with s.441A(4), the notice dated 2 April 2007 is, by virtue of s.441C(4), taken to have been received by the applicant on 11 April 2007.
Section 425A(3) provides that the applicant must be given appropriate notice of the Tribunal hearing. The notice period is prescribed in reg.4.35D of the Migration Regulations 1994 (“Regulations”). That regulation provides that the notice period starts when the applicant receives the s.425A notice and ends at the end of 14 days after the date of receipt of that notice. As the s.425A notice invited the applicant to appear on 2 May 2007, the notice had to be received no later than 17 April 2007. As already noted, the notice is deemed to have been received on 11 April 2007 and consequently the requirements of this regulation have been met.
Section 426A(1) provides:
(1) If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at 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 allow or enable the applicant to appear before it.
In the circumstances, the Tribunal discharged its statutory obligation to invite the applicant to the hearing and its decision to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it would, therefore, not appear to be affected with error: VNAA v Minister for Immigration & Multicultural & IndigenousAffairs (2004) 136 FCR 407; Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 231 ALR 630.
However, a matter of significance in these proceedings is that the Tribunal knew that its s.425A notice had not actually been received by the applicant. This is because that notice was returned to the Tribunal prior to the handing down of its decision (CB 47 and 57). The question then arises whether, notwithstanding that the procedural requirements associated with the giving of the notice had been complied with, the substantive requirements of s.425(1) had, nevertheless, not been satisfied. In Minister for Immigration & Multicultural Affairs v Mohammad (2000) 101 FCR 434, Branson J discussed the wording of s.425 in its current form, comparing it with its earlier wording, and noted that the section no longer provided that the Tribunal “must give the applicant an opportunity to appear before it to give evidence” and instead now provides that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments” (at 449 [43]). As her Honour said:
This change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement. (at 449 [43])
Her Honour continued:
That is, the amendments effected by the Amending Act changed the requirement that the Tribunal notify the applicant that he or she is entitled to appear before the Tribunal to a requirement that the Tribunal give the applicant, by a specified method, a notice in writing containing certain information. (at 450 [43])
In De Silva v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 364, the Full Court of the Federal Court said that the purpose of the invitation pursuant to s.425 (in its current form) is to enable an applicant to attend the hearing so that he or she can give evidence and present arguments relating to the issues in the case:
On the plain words of the subsection the obligation is to invite the applicant to appear. (at 367 [8])
Their Honours further said:
… [the] purpose [of s.425] is to ensure that the applicant has an opportunity to appear before the Tribunal to give evidence and present arguments in cases where the Tribunal cannot decide in favour of the applicant “on the papers”. The section is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear and give evidence and present arguments. (at 368 [9])
Goldberg J said in Mazhar vMinister for Immigration & Multicultural Affairs (2000) 183 ALR 188 at 195 [31]:
I agree with the observations of Wilcox J in Xiao… that events subsequent to the invitation, which must remain open, are not necessarily immaterial. The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s.425(1).
Hely J said in Applicant NAHF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 at [35] and [36]:
The RRT is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31]. Failure to give the applicant wife an opportunity to attend such a hearing will give rise to a breach of the rules of natural justice, even if the procedural requirements of s.425 have been complied with.
To invite the wife to a hearing which she is unable to attend because of ill health would be an empty gesture, and a denial of procedural fairness. Refusal of an adjournment can amount to a denial of procedural fairness, although whether or not to grant an adjournment of proceedings is a matter which is ordinarily within the discretion of the person charged with the conduct of the proceedings.
In Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553, the Full Court of the Federal Court held that s.425 required the Tribunal to extend an objectively meaningful invitation to the applicant to attend the Tribunal’s hearing which would not be achieved if the respondent was not in a fit state to represent himself at the hearing. The Court said that s.425 imposed an objective requirement on the Tribunal to provide a “real and meaningful” invitation whether or not the Tribunal was aware of the actual circumstances which would defeat that obligation.
In SZFDE vMinister for Immigration & Citizenship (2007) 81 ALJR 1401 at 1409 [31] – [32], the High Court said:
The importance of the requirement in s.425 that the Tribunal invite the applicant to appear to give evidence and present arguments is emphasised by s.422B. This states that Div 4 “is taken to be an exhaustive statement of the requirement of the natural justice hearing rule in relation to the matters it deals with”.
An effective subversion of the operation of s.425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review. Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s.75(v) of the Constitution, the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act.
In that case, the High Court held that the fraud of the applicant’s agent had the consequence of stultifying the operation of the legislative scheme to afford natural justice to the applicant and that although the Tribunal was accepted as having acted on an assumption of regularity, in truth, by reason of the agent’s fraud, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review.
The obligation on the Tribunal was to invite the applicant to attend a Tribunal hearing. The Act is not concerned with whether the invitation is actually received by an applicant. If the procedures mandated by s.425A(2) are followed, it is taken that the invitation has been “given to the applicant”. The structure of the legislative provisions discussed at [17] – [25] above seem clearly designed to avoid any need for the Tribunal to demonstrate that the s.425 invitation contained in the s.425A notice is, in fact, received by an applicant. Although SZFDE’s case demonstrates that fraud on the part of an applicant’s agent may disable the Tribunal from the due discharge of its s.425 obligations, notwithstanding that the hearing invitation had been “given to the applicant” in the manner required by the Act, no allegation of fraud by an agent has been raised in these proceedings.
Absent evidence falling within that very narrow exception to the assumption of regularity in the giving of the notice, it cannot be concluded that the failure of the invitiation to reach the applicant can support a finding of jurisdictional error.
The fact that the Tribunal was aware, prior to the handing down of its decision, that the invitation had not been received does not, without more, amount to a basis to set the Tribunal’s decision aside. De Silva, Mazhar, Applicant NAHF and SCAR all dealt with s.425 invitations which had been issued in the period prior to the commencement of s.422B and its codification of the natural justice hearing rule for proceedings before the Tribunal. In relation to s.422B, and its equivalent provisions in other parts of the Act, the Full Court of the Federal Court said in Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214 at 225 [66] that such provisions had the effect that those sections found in Div.4 of Pt.7 of the Act provide a comprehensive procedural code containing detailed provisions for procedural fairness which exclude the common law natural justice hearing rule. The application of that reasoning to s.422B was expressly adopted by the same Full Court bench in SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62.
Nor does the fact that the Tribunal’s invitiation was returned to it present a situation such as seen in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 where, under the former wording of s.360 of the Act (the Migration Review Tribunal equivalent of s.425), it was held that the Tribunal’s mistaken failure to consider a request for an adjournment because of the applicant’s ill health and its decision to proceed to make a determination on the review application was one which was affected with jurisdictional error. The determination was erroneous because the Tribunal failed to give Mr Bhardwaj a reasonable opportunity to present evidence and argument as s.360 (the Migration Review Tribunal provision equivalent to s.425) then provided. The section now provides different rights and thus Bhardwaj’s case is distinguisable from this one.
However, armed with knowledge prior to handing down its decision that its invitation had not actually reached the applicant even if the Act deemed that it had, the Tribunal was presented with a choice of whether to proceed pursuant to s.426A(1) or to reschedule the hearing under s.426A(2).
Part of the Tribunal’s task is to act in accordance with substantial justice and to provide a mechanism of review which is fair and just (s.420). Those obligations are not limited by s.422B, which is concerned with procedure. Consequently, when presented with a need to decide, on a discretionary basis, which course should be adopted under s.426A, regard should be had to the imperative duties found in s.420. A failure to recognize the existence of the need to make such a decision would involve a failure to exercise jurisdiction.
Consequently, in this case, a failure of the Tribunal to recognize that it had a discretion whether or not to reschedule the hearing, and a failure to exercise that discretion by proceeding to a determination without reference to the discretion, would amount to jurisdictional error. In this case, although the Tribunal’s decision is not as explicit as it might have been on this point, it does refer to the power under s.426A to proceed to a decision “without taking any further action to enable the applicant to appear before it” (CB 58) which impliedly refers to the power under the same section to reschedule. This passage demonstrates that the Tribunal knew that it had the power to reschedule the hearing but decided to exercise its discretion to not do so.
The Tribunal was under no obligation to give reasons for this discretionary decision and no reasons are expressed. Consequently, it is not apparent that the exercise of the discretion has miscarred and I do not conclude that it did.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 31 January 2008
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