SZLLE v Minister for Immigration
[2008] FMCA 439
•25 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLLE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 439 |
| MIGRATION – Visa – Protection (Class XA) visa – application for review of decision of the Refugee Review Tribunal – where applicant did not attend the Tribunal hearing – no reviewable error. |
| Migration Act 1958 (Cth), s.426A |
| SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1306 S58 of 2003 v Minister for Immigration and Multicultural and IndigenousAffairs (2004) FCAFC 283 |
| Applicant: | SZLLE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3085 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 March 2008 |
| Date of Last Submission: | 25 March 2008 |
| Delivered at: | Perth |
| Delivered on: | 25 March 2008 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms Needham |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondents costs fixed in the sum of $5000.00 and I allow 4 months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
SYG 3085 of 2007
| SZLLE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of China. He asks the court to review a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister refusing him a protection visa. The applicant asks the court to make an order in the nature of mandamus. He asks the court to send his application back to the Tribunal with a direction that the Tribunal provide him with another hearing.
The applicant claims that he is a Falun Gong practitioner and fears that he would be harmed by the authorities if he returned to China. He claims that he missed the Tribunal hearing because he did not receive the letter of invitation. The background to this matter is that the applicant arrived in Australia on 1 April 2007. He applied for a protection (Class XA) visa on 9 May 2007. A delegate of the Minister for Immigration and Citizenship refused his application for a visa on 19 May 2007. The delegate was not satisfied that the applicant was targeted by the Chinese authorities because of his beliefs in Falun Gong, also known as Falun Dafa.
The delegate set out a number of reasons why the delegate had arrived at that conclusion[1]. After the Minister’s delegate refused the application for a visa on 19 May, the applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal received the application for review on 25 June 2007. Apart from a copy of the decision of the delegate refusing him a visa the applicant did not provide any other documentary evidence with his application for review.
[1] See Court Book at page 34-36
In his application he disclosed his residential address in an inner suburb of Sydney and nominated that address as his address for correspondence. Shortly afterwards on 3 July 2007 the applicant forwarded to the Refugee Review Tribunal a form headed, Change of Contact Details. In that form the applicant indicated that he had a new residential address and he wished to use that address as his postal address. That address was also in a suburb of Sydney. The Tribunal wrote to the applicant at his new address only a week later on 10 July 2007. That letter was headed: “Invitation to Appear Before the Tribunal”.
The letter told the applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. Accordingly, the letter invited the applicant to attend a hearing of the Tribunal schedule for 14 August 2007. The letter warned the applicant that the Tribunal may make a decision without further notice if he failed to attend the scheduled hearing. A copy of the letter appears at pages 50 and 51 of the Court Book.
The applicant did not attend the hearing on 14 August 2007. On 24 August 2007, 10 days later, the Tribunal wrote to the applicant and invited him to attend the formal handing down of the decision. The decision had been signed two days earlier on 22 August. It was handed down on 13 September 2007. A copy of the Tribunal decision record can be found in the court book at pages 57 through to 63. The Tribunal noted the applicant’s claims and evidence taken from his application for a protection visa.
That application included a signed statement saying that the applicant feared persecution in China as a Falun Gong practitioner. The statement set out a history of practice of Falun Gong up to 2006 and set out that the applicant was questioned by security people and warned about his practice of Falun Gong in June 2006 and again was warned in September of that year. The applicant claimed of threats that he would lose his job and would be arrested if he continued to practice Falun Gong.
He claimed to have bribed local government officials to get a visa for Australia and travelled to Australia. He claimed that his family told him not to return. The Tribunal noted that the applicant had not provided any further submissions or evidence when lodging his application for review. The Tribunal noted that the applicant had been invited to give oral evidence to hearing on 14 August 2007 but did not receive any response to the invitation. The Tribunal noted that the applicant did not appear before the Tribunal on the day and at the time and place of the hearing. Accordingly, it exercised its power under section 426A of the Migration Act to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal’s findings and reasons which are necessarily very brief are set out on pages 61 and 62 of the Court Book. The Tribunal accepted that the applicant was a national of China because he had provided a copy of his Chinese passport. The Tribunal noted the applicant’s claims of a fear of persecution as a Falun Gong practitioner but noted the limited information that had been provided. The Tribunal went on to say:
The applicant’s claims are mere assertions which the Tribunal has not had the opportunity to test at a hearing. Given the lack of detail in the applicant’s claims and without the opportunity to test the truthfulness of his claims at hearing the Tribunal is not prepared to simply accept them. The Tribunal is not satisfied on the information before it that the applicant was or is a Falun Gong practitioner as he has claimed. Therefore, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for reasons of his claimed religion or his membership of a particular social group, Falun Gong[2].
[2] See Court Book at page 61
The Tribunal was not satisfied that the applicant had a well founded fear of persecution for a convention reason if he were to return to China and affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant seeks judicial review of that decision. He filed an application and an affidavit in support at the Sydney Registry of the Federal Magistrate’s Court on 5 October 2007. At the first court date, 7 November 2007, Lloyd‑Jones FM made directions for the service of additional affidavit evidence, an amended application and outline of written submissions. The amended application was to be filed and served by 21 December 2007.
The applicant subsequently filed a notice of address for service on 15 November 2007. That notice showed that he had changed his address to another suburb of Sydney. He then filed an application in a case and sought to have the proceedings transferred from the Sydney Registry of the court to Perth. On 20 February 2008 Lloyd-Jones FM vacated the hearing scheduled for 12 March 2008 in Sydney and listed the application for final hearing in Perth before me today.
The applicant has attended court. He has not filed any amended application nor has he filed any written outline of submissions. He relies on his original application. In that application he sets out the following grounds:
(1)I am a Chinese citizen and I am a genuine Falun Gong member. I have been practising for years and I have been warned by local security and company to be put in prison if I continue this activity.
(2)I cannot stop practising Falun Gong since it has helped a lot with my health condition. I cannot go back to China since I am very scared to be sentenced.
(3)I have been actively practising Falun Gong since I arrived in Australia. I believe the Chinese government still look for me if I return. My family told me not to go back since they came to my home twice and asked where I am about.
The application also sets out three orders sought by the applicant. They appear to be more in the line of a submission but nevertheless they will still be considered. The applicant says:
I disagree with Immigration and RRTs decision since I am a genuine Falun Gong member. They did not consider that I will be in danger if I return.
RRT did not consider that I am still actively practising in Australia and it will also bring me a big trouble if I return home.
I could not attend the RRT hearing because I moved home. So, I could not get my registered letter from RRT. When I contacted the RRT I was told that they already had a decision. I think RRT should provide me a hearing again.
The applicant has not filed any written submissions but has attended court and made oral submissions. In answer to questions from the bench, the applicant said that he had told the Tribunal that he had moved again and did so about a week after he moved. He could not recall exactly when that was. He said that he found out in about August that a decision had been made by the Refugee Review Tribunal. He said that he had come to Perth because he had two friends who were also Falun Gong practitioners. The Falun Gong Association in Perth is quite small and they propose to develop it.
The applicant submitted that it was his fault that he did not go to the Tribunal hearing. He reiterated that he had not received the letter from the Tribunal. He claimed that the Tribunal in any event had not considered his case thoroughly because he is a Falun Gong practitioner. He felt that his application may have been refused because he did not give the Tribunal sufficient documents. He sought to file some documentary evidence in court relating to the factual matters of his claim. I informed the applicant, however, that the court did not have the jurisdiction to consider fresh evidence relating to his substantive claim. He told the court that he feared that he would be persecuted if he had to return to China and asked the court to provide him with a further opportunity to attend a hearing.
The lawyers for the Minister have filed a written outline of submissions and Ms Needham of counsel made some short oral submissions to the court. The Minister submits that the applicant’s grounds numbered 1 to 3 in the application each essentially seek merits review of the Tribunal decision. In other words, they seek to challenge the Tribunal’s factual findings. The Minister submits that the court cannot engage in merits review and it is not the task to conduct a rehearing on the merits[3].The Minister further submits that the Tribunal was not obliged to accept the applicant’s claims at face value. The Tribunal’s rejection of his application was the inevitable consequence of the applicant not attending the hearing[4].
[3] See SZDFO v Minister for Immigration (2004) FCA 1192 and also MARE v Minister for Immigration (2004) FCA 554, paragraph 10.
[4] See NAVX v Minister for Immigration and Multicultural Affairs (2004) FCAFC 287 at paragraph 5.
Ultimately the Minister submits the Tribunal rejected the applicant’s claims because it was unable to reach the state of satisfaction required by subsection 65(1) of the Act. It was for the applicant to make out his case to the Tribunal but the applicant failed to do so[5]. The Minister also submits that the applicant was offered the opportunity to appear before the Tribunal and by not attending he is to be taken to have assumed the risk that any inconsistencies, omissions or other unsatisfactory features of his documents could be noted by the Tribunal without his having an opportunity to explain or clarify them[6].
[5] See Abebe v the Commonwealth (1999) 197 CLR 510 at 576, paragraph 187
[6] See S58 of 2003 Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 283 at paragraph 25.
As to advising the applicant of the Tribunal hearing, the Minister submits that the invitation to the hearing was sent by pre-paid post to the last address provided by the applicant on 2 June 2007 and that pre-post is a method of service specified in the subsection 441A (4) of the Migration Act and, therefore, complied with subsection 425A (2) (a) of the Act. The address for service was the last address provided to the Tribunal by the applicant, see subsection 441A (4) (c) (i). Under subsection 441C of the Act the applicant is taken to have received the invitation seven working days after the date that it was sent which was 20 July 2007 and so the applicant had more than the prescribed period of 14 days notice of hearing. Accordingly, the Tribunal met the requirements of subsection 425A (3) of the Act. The Minister submits that there is no error in the approach taken by the Tribunal when it decided the application by exercising its powers under section 426A of the Migration Act.
The applicant has told the court that he had provided a notice of change of address to the Tribunal but could not recall exactly when. Most certainly he notified the Tribunal of a change of address on 3 July 2007 by fax. A copy of that document appears at page 49 of the court book. The Tribunal invited the applicant to attend the hearing and did so in order to comply with its obligation under section 425 of the Migration Act. That letter of invitation was sent to the applicant at the new address that he provided on 10 July, one week after the Tribunal had received the notification of the new address. The court book shows that the letter was sent by registered post. There is a notification on the letter that it was posted on 10 July, the date that it bore. The court book does not show any evidence of any subsequent notice of change of address having been received. Similarly, there is no evidence that the section 425 Invitation to Hearing sent by the Tribunal on 10 July was returned unclaimed. Certainly no response to hearing invitation was received but the Tribunal still proceeded to schedule the hearing on 14 August 2007. The applicant did not attend.
The Tribunal’s letter to the applicant of 24 August 2007 inviting him to attend the handing down on 13 September was sent to the same address that the invitation to hearing had been sent. There is no evidence that that letter was returned unclaimed. The applicant claims that he heard about the Tribunal decision some time in August. The Tribunal has a power under section 426A of the Migration Act where an applicant does not appear to make its decision on the review without taking any further action to enable the applicant to appear before it. It is a discretionary power and the Tribunal may in appropriate circumstances decide not to exercise that power and to schedule another hearing.
In this case the Tribunal proceeded to make its decision on the review. I note, however, that the hearing was scheduled for 14 August 2007 and the applicant did not appear. The Tribunal did not sign its decision until 22 August 2007, some eight days later. It must follow that it would have been open to the applicant during that period of time to contact the Tribunal to advise that he had missed the hearing. In that case the Tribunal could, in the light of that information, have taken another course.
The Tribunal handed its decision down on 13 September 2007. It would have been open to the applicant prior to 13 September to contact the Tribunal and it would have been open to the Tribunal in appropriate circumstances to withdraw its decision before handing it down. It is made quite clear by section 430 of the Migration Act that the date of the decision is not the date when the decision is signed but the date when the decision is handed down, in this case 13 September 2007.
Although the applicant said that he contacted the Tribunal and the Tribunal said that there already was a decision, the applicant has not provided any evidence of this other than his assertion. Certainly nothing appears in the court book. I am satisfied that the Tribunal exercised its discretion under section 426A of the Migration Act to proceed to make a decision on the review without taking any further action to enable the applicant to appear before it. There is no error shown in that approach.
The Tribunal was not satisfied that the applicant had made out a case that he was entitled to a protection visa. There are many cases where applicants have sought review of Tribunal decisions after a Tribunal has decided against them, after the applicant has failed to attend the Tribunal hearing or elected not to attend the Tribunal hearing. It is hardly surprising that such applications are rarely successful. In SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1306, Hely J in a similar case had this to say at paragraph 16:
The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant’s favour on the basis of the information before it.
As the Full Court observed in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 287:
When the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing the inevitable consequence was the rejection of his application.
In this case the Tribunal had written to the applicant on 10 July saying:
The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone[7].
[7] See Court Book at page 50
It was for that reason that the Tribunal invited the applicant to attend the hearing under section 425. The applicant, of course, did not attend the hearing. He claims that he did not receive the letter. When the time for the scheduled hearing occurred, 14 August 2007, the Tribunal had no more information than it had on 10 July when it told the applicant that it was unable to make a decision in his favour based on the material before it. The applicant had not attended to give oral evidence nor had he provided any documentary evidence.
Again, it is hardly surprising that if the Tribunal had no further information on 14 August than it had on 10 July when it decided it was unable to make a favourable decision based on that information alone that it was still unable to make a favourable decision based on that information, it had nothing more. Section 65 of the Migration Act makes it clear that if an applicant satisfies the Minister or the Tribunal standing in the shoes of the Minister that the applicant meets the requirements for a visa, then the applicant must be given a visa. However, if the applicant does not satisfy the Minister or the Tribunal then the application must be unsuccessful.
The reason here was that the Tribunal did not have sufficient information to satisfy it that the applicant met the appropriate criterion for a protection visa as set out in section 36(ii) (a) of the Migration Act. The material before the Tribunal was insufficient. The applicant has not demonstrated any error on the part of the Tribunal under section 425 or 425A of the Migration Act in inviting him to attend a hearing. He has not demonstrated any error under section 426A of the Act in the Tribunal exercising its discretion in the way that it did.
The applicant has not provided evidence to show that he had changed his address again and notified the Tribunal of that prior to the hearing and after his change of contact details of 3 July 2007.
The last address for service that the Tribunal had was the address that the applicant gave to it on 3 July 2007. The Tribunal used that address and followed the procedure set out in sections 441A and 425A of the Migration Act. Accordingly under subsection 441C (4) of the Act, the applicant is taken to have received the invitation seven working days after the date of receipt. I am mindful of the fact that the applicant is not legally represented. I have read the Tribunal decision and the supporting material independently of the applicant’s claims and independently of the respondent’s submissions and I am unable to discern any arguable case of any jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision, as defined by subsection 474(2) of the Migration Act. Under section 474, a privative clause decision is final and conclusive and it is not subject to orders in the nature of certiorari or mandamus or any other constitutional writ. It follows then that the application must be dismissed. I note that the Minister has been legally represented in these proceedings and it is appropriate for me to consider an order for costs.
There is an application for costs on behalf of the first respondent Minister. The applicant has been unsuccessful in his claim and in my view, this is an appropriate matter for a costs order. The amount sought is $5000, which is an amount provided by the court scale. The Minister has been represented by a solicitor and counsel and in my view, the figure sought is appropriate. I will, however, take into account the fact that the applicant says that he is of limited income and I will allow some time to pay.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM.
Associate: A. Coutman
Date: 8 April 2008
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