SZLCZ v Minister for Immigration

Case •

[2015] FCCA 1044

•

22 April 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZLCZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1044
Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

Legislation:  

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 425, 476
Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33
Kovalev v the Minister for Immigration & Multicultural Affairs [1999] FCA 557
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Applicant: SZLCZ
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 529 of 2015
Judgment of: Judge Street
Hearing date: 22 April 2015
Date of Last Submission: 22 April 2015
Delivered at: Sydney
Delivered on: 22 April 2015

REPRESENTATION

The Applicant appeared in person
Counsel for the Respondent: Ms R. Francois
Minter Ellison

ORDERS

  1. The application be dismissed.

  2. No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 529 of 2015

SZLCZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 29 January 2015, affirming a decision of the delegate not to grant the applicant Protection (class XA visa). 

  2. The application identifies the following grounds:

    1. The Delegate of the Minister (the First Respondent) failed to make proper facts findings and relied on incorrect evidence, collected by the Department of Foreign affairs and Trade, in relating to the persecution on the members of underground Christian Churches in FuQing.

    2. The Tribunal denied crucial evidence pertaining to the prevalence of forcible sterilization and abortion in FuQing, which constituted a judicial error for failing to comply with the s422B(3) of the Migration Act, 1958.

    3. I offered the Tribunal to take oral evidence from two witnesses who not only would attest my attendance at Church and involvement in Church activities, they would also attest the severe persecution facing underground church members in Fuqing and other places across China.

    In reference of section 426(3) of the Migration Act, 1958, it is stipulated that If the Tribunal is notified by an applicant under subsection (2), the Tribunal is must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

  3. The matter was fixed for hearing yesterday and was stood over to today part-heard. No submissions were advanced by the applicant. The Court has before it, the Court book which identifies the applicant’s claims at the time of lodging her application for a Protection (class XA visa), and the decision of the delegate on 16 April 2014.  The circumstances of the adverse findings of credibility of the applicant were set out: 

    While available country information indicates that genuine Falun Gong practitioners in some circumstances are at risk of persecution in the PRC, the applicant has provided no detail or evidence to substantiate a claim that she is a genuine Falun Gong practitioner. In her written statement the applicant claims to have been involved in Falun Gong activities in Australia and fears having been photographed by Chinese spies. The applicant also claims such activity will have added her existing file due to her activities prior to coming to Australia.

    I find the applicant’s claims are lacking in specified details and are unsubstantiated. For example, the applicant has not submitted any evidence to demonstrate her attendance at any Falun Gong practice site or involvement in any Falun Gong activity since her arrival in Australia. 

    As the applicant has not attended an interview I have also been unable to tests whether the applicant’s knowledge of Falun Gong belief and practices is commensurate with her claims. I have also been unable to test the applicant’s claims are genuine.

    As such, I am not satisfied that the applicant’s claims are genuine.

    …

    Given the limited information before me, in conjunction with the above concerns, I find the applicant is generally not credible. Consequently, I dismiss in their entirety the credibility of the applicant’s claims in relation to being a practitioner of Falun Gong and facing persecution by the PRC authorities on that basis should she return to the PRC.

    I therefore make the following findings of fact in relation to the applicant’s claims for protection:

    I do not accept that the applicant is a Falun Gong practioner;

    I do not accept that the applicant has ever been involved in Falun Gong activities in Australia or that she has ever been photographed by PRC spies;

    I do not accept the applicant has a file with PRC authorities because of prior activities undertaken before to coming to Australia;

    I am not satisfied there is any basis for finding the applicant fears or faces harm in the PRC for any (including Refugee Convention) reason.

  4. It was in those circumstances that the delegate made adverse findings, and that the delegate was not satisfied that the applicant had a real chance of being persecuted. For a claim under the Refugees Convention, the Tribunal was not satisfied that the applicant’s fear was well founded, and made adverse findings in relation to criteria under s.36(2)(a) and 36(2)(aa).

  5. Materially, in relation to the determination by the delegate, the delegate said:

    On Saturday 12 April 2014 the applicant’s representative, Mr Simon Tao, emailed the department to inform that due to a medical condition the applicant was unable to attend her scheduled interview on 14 March 2014. Mr Tao requested the delegate make a decision on the basis of the statement and evidence provided. 

  6. The applicant lodged an application for review, and in response to which a letter was sent on 14 May 2014 identified relevantly: 

    The Tribunal received your application for review, in relation to a decision to refuse to grant a Protection (Class XA) visa, on 12 May 2014.

    Please note that the validity of your application has not yet been assessed. The Tribunal can only review a decision if a valid application for review has been made. You will be advised if it appears that your application may not be valid.

    We have requested that the Department of Immigration and Border Protection (the department) provide u with all documents and files which they consider to be relevant to your application.

    It is important that you: tell the Tribunal immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address.) If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice; tell the Tribunal immediately if your personal circumstances change and this is relevant to the review of the decision; use your RRT case number 1408488 when you contact us.

    If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible. In providing personal/sensitive information to the Tribunal you are consenting to the collection and use of that information for purposes under the Migration Act. The Tribunal will collect personal/sensitive information about you and all applicants involved, if any, during the review.

  7. On 15 December 2014, the applicant was sent an invitation to attend a hearing on 23 January 2015. The invitation complied with the requirements of the statutory scheme.  That hearing was to take place on 23 January 2015.  The applicant didn’t appear at that hearing, and unbeknown to the Tribunal, the applicant had forwarded to the Tribunal’s office by facsimile, received at 3:56pm on 22 January 2015, a fax that provided relevantly as follows:

    My name is [C] with RRT case number: 1408488.

    First of all, I wish to present to the Tribunal with the testimonies, made by my fellow Falun Gong Practitioners as well as two photos of mine to support my review application.

    I have long been suffering from back pain and symptoms of fibroids; the prolonged sitting would aggravate the pain. Therefore, I would like to inform the Tribunal that I will not be able to attend the hearing tomorrow and wish the tribunal to proceed with its decision based on the evidence before it.

    I have the following documents to submit to the Tribunal;

    Exhibition 1. two photos taken at Balmore Park and Annual FaLun DaFa parade respectively.

    Exhibition 2. Supporting letter from Mr. [S] plus his driver’s license.

    Exhibition 3. Supporting letter from Mr. [X] and his driver’s license copy.(emphasis added)

  8. Annexed to the facsimile were two photographs of the applicant, allegedly taken in Australia without any date or identification as to when they were taken. Exhibits 2 and 3 were translated testimony by two Falun Gong practitioners asserting in general terms attendance by the applicant at Falun Gong activities in Australia.  The Tribunal delivered its reasons on 29 January 2015, and was unaware of the receipt of the facsimile. The Tribunal did not take into account the facsimile or the three exhibits to the facsimile in its review determination.  Relevantly, the Tribunal said: 

    3. The applicant was invited by the Tribunal to appear before it on 23 January 2015 to give evidence and present arguments. She provided no response to that invitation and did not appear before the Tribunal at the time and place scheduled, nor did she make contact with the Tribunal to inform it of any change in her contact details or any reason why she was unable to attend.  

    27. By letter dated 15 December 2014 the Tribunal invited the applicant to appear before it on 23 January 2015 to give evidence and present arguments. That letter was sent to the applicant’s last identified address for correspondence and noted that if the applicant did not attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable her to appear. The applicant did not respond to that invitation or make any contact with the Tribunal in respect of her scheduled appearance or the review application more generally.  

  9. In determining whether there was any jurisdictional error, or a constructive failure to exercise the jurisdiction of the Tribunal by not having regard to the facsimile and the exhibits, it is necessary to take into account the claims and evidence of the applicant before the Tribunal, the subject of the review and the importance of the material to which the Tribunal did not have regard.

  10. The first respondent has provided consent orders to the effect of consenting to a writ of certiorari, quashing the decision, and a writ of mandamus directing the second respondent to reconsider the decision made according to law.  The statement in support of the proposed orders is as follows:

    The first respondent concedes that the decision of the second respondent dated 29 January 2015 (RRT case number 1408488) is affected by a jurisdictional error of the kind identified by Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 in that the second respondent failed to have proper regard to documents submitted by the applicant to the second respondent which were potentially corroborative of, or relevant to, aspects of her claims (viz. a facsimile sent by the applicant dated 212 January 2015, and its attachments, being two photographs and two witness statements).

  11. The making of orders by this Court is an exercise of the judicial power of the Commonwealth, and it is necessary that the Court is satisfied that consent orders are appropriate, see Kovalev v the Minister for Immigration & Multicultural Affairs [1999] FCA 557. It is equally important, where the nature of the orders are to require another party, in this case the Refugee Review Tribunal, to engage in a task, that the Court is satisfied that the orders are appropriate by reason of there being a jurisdictional error. See Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33, relevantly at [15]:

    15. It is accordingly necessary for this court, where the question whether the tribunal has erred in law is before it, to address the matter for itself. That is not to say that the court may not deal with the matter more briefly in its reasons than it otherwise would, or that it may not specifically state that there has been no real contradictor, so that courts subsequently considering the decision may take that into account.

  12. I am not satisfied that the Tribunal erred in the manner identified in the proposed statement in support of the proposed orders or at all.  The decision in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 is one where the applicant had given evidence, and it is clear that the material was potentially relevant and was assessed as important because of the impact it could have on credibility. This is not a case where it could be said that the second respondent failed to have proper regard to the documents submitted by the applicant to the second respondent, which were potentially corroborative of or relevant to aspects of her claim. The statement of error in support of the consent orders is not correct and there was no jurisdictional error by the Tribunal of the kind in SZRKT. The applicant in this case had not given evidence and had not permitted the Tribunal to explore with the applicant or test her claims. It is clear from the applicant’s facsimile with the emphasis highlighted that the applicant consented to the Tribunal proceeding with the determination within s.425(2)(b). A similar approach by the applicant occurred before the delegate. The applicant deliberately decided not to attend the hearing, and to direct the Tribunal to proceed with its decision based on the evidence before it. The applicant deliberately directed the decision maker to proceed knowing that her claims and evidence could not be tested and knowing that this was a reason for the rejection of her claims by the delegate. The applicant’s consent in this case under s.425(2)(b) gives rise to the consequence under s.425(3) that the applicant is not entitled to appear before the Tribunal and this materially impacts on the nature of the review and the assessment of what is or is not evidence that is important to the applicant’s claims.

  13. Whilst an applicant is not required to attend a hearing before a Tribunal, the hearing is intended to provide an opportunity for the applicant both to advance evidence and to present arguments, and to permit the Tribunal to evaluate the material before it. That opportunity is likely to be material in deciding what evidence is of importance in the reasoning process. The applicant in this case deliberately directed the Tribunal to proceed to determine the matter in circumstances where the Tribunal was not able to test the applicant’s claims, or benefit from the applicant’s presentation of argument, or benefit from identification of what was said to be important evidence. In these circumstances the failure to have regard to the facsimile dated 22 January 2015 was not a failure to have regard to important evidence in this review.

  14. The failure to have regard to the material provided on 23 February 2015 is not one which, in the context of the claims advanced by the applicant and what had occurred before the Tribunal, is a case where there was either a jurisdictional error by failing to have regard to that material, or a constructive failure to exercise the Tribunal’s jurisdiction.  I am not satisfied that the material annexed to the facsimile dated 22 January 2015 can be said to be significant or important.

  15. As Ms Francois of counsel, on behalf of the first respondent, properly identified the applicant’s fears were based on being an alleged Falun Gong practitioner, and counsel pointed out that the assumption made by the Tribunal that there had been nothing provided by the applicant, in paras.3 and 27 of the Tribunal’s reasons, was wrong. However what was provided was not a request for an adjournment and in directing the Tribunal to proceed with the documents provided of which could not be tested, acquired no importance or materiality. I am satisfied the documents could not possibly have impacted on the outcome of the review in this case.

  16. It is clear, in this case, that the Tribunal properly understood the nature of the applicant’s claim and in circumstances where the applicant failed to appear the findings made by the Tribunal were clearly open.

  17. The Tribunal relevantly said at para.30: 

    The Tribunal has had no opportunity to question the applicant about her claims in order to further explore the detail of her claims and to test her credibility.  Only brief details have been provided in the applicant’s various written claims as to the manner in which she became involved in Falun Gong in China, what happened to her as a result in China, and the nature and extent of her practice of Falun Gong in Australia. In the absence of the opportunity to further explore the claims and issues, the Tribunal is unable to be satisfied as to any substantive aspect of the applicant’s claims.  As a result, considering all the evidence before it, the Tribunal is not satisfied that the applicant has been or is a Falun Gong practitioner.

  18. In the context of a case where the Tribunal has had no opportunity to question the applicant about her claims and to explore the detail of her claims and to test her credibility, the observation that the applicant had not provided any further response was, in my opinion, a mere errant finding of fact.  I do not regard the errors in either para.3 or para.27 as giving rise to any jurisdictional error by the Tribunal. Nor does that errant finding of fact elevate the facsimile into being evidence that was important to the reasoning of the Tribunal in this case.

  19. Ms Francois of counsel pointed out that the Tribunal in para.30 did identify the brief details that had been provided by the applicant as to what happened to her in China, and the brief details as to the nature and extent of her practice of Falun Gong in Australia.  While I accept that the two statements relate to alleged activities by the applicant concerning Falun Gong in Australia. They do not assist in identifying the nature and extent of her practice.  The documents do not permit the Tribunal to identify or test the applicant’s fears, or the basis for those fears. The documents do not provide important evidence for the applicant’s claims in this case where the applicant deliberately told the Tribunal to proceed to determine the matter without the applicant giving evidence.

  20. It was in this regard that the Tribunal said:

    30. …In the absence of the opportunity to further explore the claims and issues, the Tribunal is unable to be satisfied as to any substantive aspect of the applicant’s claims.

  21. That finding of the Tribunal related to the failure to have an opportunity to explore with the applicant her claims and issues.  In the circumstances of this case, the documents that were provided on 22 January 2015, to which the Tribunal did not have regard, are documents of a kind which were not important to the reasoning process of the Tribunal, and are ones that can be said to be of no significance, and inconsequential, as identified by Robertson J in SZRKT.

  22. Accordingly, there was no ignoring of evidence that was important to the claim, or ignoring of evidence that, having regard to the decision making, required an importance to the exercise of jurisdiction so as to amount to a jurisdictional error.  See Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [54].

  1. Accordingly, I am not satisfied that it is appropriate to make the consent orders, as I am not satisfied that the Tribunal erred, in the exercise of its jurisdiction, either in the manner identified in the statement in support of the proposed consent orders or as a constructive failure to exercise jurisdiction.  In relation to the other grounds in the application, there was never a claim advanced of underground church activity by the applicant, and there is no jurisdictional error, by reason of the matter alleged in ground 1.

  2. In relation to ground 2, it is clear that the Tribunal had regard to the information that was before it, which included the applicant’s assertions about treatment of Falun Gong members. Ground 2 is an impermissible challenge to the findings of fact made by the Tribunal. Under s.425, where the applicant notifies the Tribunal that she does not wish to attend and consents to the Tribunal deciding the review without the applicant appearing before it then the applicant is not entitled to appear before the Tribunal. I am satisfied in this case that the material that was provided on 22 January is material in respect of the failure to have regard to that evidence could not have affected the outcome.

  3. There is no substance in relation to ground 3 for the reasons I have given earlier in regards to the oversight by the Tribunal.  In relation to the statements of the two Falun Gong members, it was only an errant finding of fact given the reasoning of the Tribunal as identified and specifically that the applicant had prevented the Tribunal from being able to test or evaluate her claims.  It is not apparent to what the applicant is referring to in relation to para.40 in ground 3 as there was no manifested wish by the applicant conveyed to the Tribunal to take oral evidence. Nor did the applicant advance any claim in relation to the underground church. There is no jurisdictional error as alleged in ground 3. I am satisfied there is no jurisdictional error or constructive failure to exercise jurisdiction by the Tribunal. The consent orders are not appropriate. The application is dismissed.  I make no order as to costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 April 2015

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