SZLXJ v Minister for Immigration
[2008] FMCA 975
•21 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLXJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 975 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Protection (Class XA) visa – 4 year delay in application for judicial review – whether jurisdiction to hear judicial review application – when ‘actual’ notification of Tribunal decision – whether jurisdictional error – whether proper consideration of applicant’s claims – merits review not function of judicial review – applicant failed to attend Tribunal hearing on alleged advice from migration agent – whether conduct of migration agent ought vitiate Tribunal decision. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 426A, 474, 477 |
| Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 |
| Applicant: | SZLXJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 133 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing dates: | 1 May & 16 June 2008 |
| Date of Last Submission: | 16 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 17 January 2008 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,100 payable within six (6) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 133 of 2008
| SZLXJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 28 January 2004 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 25 May 1959. He claims to be a national of China, of Han ethnicity, and of Falun Gong faith.
The applicant arrived in Australia on 2 March 2003 on a Chinese passport issued in his own name.
The applicant lodged an application for a protection visa on 31 March 2003 on the basis that he feared persecution in China as a Falun Gong practitioner. He claimed that he would be persecuted for a "political purpose" and due to his "records of arrest and under supervision of police" he had no future in China. The applicant claimed that he would be "arrested again" if he returned to practising Falun Gong in China (Court Book (CB) 7-8).
On 17 April 2003 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (CB 32-41) (see Legislative framework).
On 14 May 2003 the Tribunal received the application from the applicant for review of the delegate’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
In his application to the Tribunal the applicant nominated an immigration agency (his agent) as his authorised recipient for receiving correspondence about his application (CB 62-65).
By letter dated 30 October 2003, the Tribunal wrote to the applicant, via his agent, with a copy of the letter to the applicant's nominated residential address, inviting the applicant to attend a hearing (CB 68-72). The letter stated that:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter sent to the applicant's residential address was returned to the Tribunal as undeliverable (CB 70).
By letter dated 3 December 2003, the Tribunal again wrote to the applicant, via his agent, with a copy to the applicant's nominated residential address, advising that the hearing had to be rescheduled to 6 January 2004 (CB 76-78). The letter sent to the applicant's residential address was again returned to the Tribunal as undeliverable (CB 77).
The applicant sent to the Tribunal a Response to Hearing Invitation Form which was signed by the applicant on 4 December 2003 and received by the Tribunal on 11 December 2003 (CB 80). To the question: "Do you want to come to a hearing?", the applicant had ticked the "No" box, which also stated:
I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
The Tribunal’s findings and reasons
The Tribunal set out the applicant’s claims and noted that the applicant had consented, in his letter of 4 December 2003, to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the applicant to appear before it (CB 87).
The Tribunal was not satisfied on the information before it that the applicant had a well-founded fear of persecution for a Convention related reason. It found that the applicant's claims were inconsistent and lacked useful detail, including in relation to his delay in leaving China and claimed arrests and periods of imprisonment:
In this case the Tribunal accepts that the Applicant is a citizen of the People’s Republic of China as claimed and as supported by a copy of his PRC passport. The Applicant claims to have been persecuted as a Falun Gong practitioner and to fear persecution for this reason on return to China. However the Tribunal is not satisfied on the information before it that the Applicant has a well-founded fear of persecution within the meaning of the Convention. This is because the Tribunal finds the Applicant’s claims inconsistent and lacking in useful detail. For example, although the Applicant claimed to have been unemployed since 2000, he obtained an Australian business visa, and although the visa was issued in early January 2003 he did not leave the country until early March 2003; in the Tribunal’s view, such a delay is not consistent with his claim of ongoing persecution. The Applicant claimed to have been arrested and jailed a number of times yet he denied having any convictions. The Applicant provided no useful detail about his past arrests and imprisonments and there is little useful detail provided about his most recent arrest in December 2002. The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention (CB 88).
The Tribunal sent a letter to the applicant on 28 January 2004, via his agent, indicating that the Tribunal had decided that the applicant was not entitled to a protection visa, and enclosing a copy of the Tribunal's decision (CB 83).
The proceedings before this Court
The applicant filed the application in this Court on 17 January 2008 setting out one ground of review of the Tribunal’s decision.
The applicant appeared in person before this Court on 1 May 2008 and on 16 June 2008 with the assistance of a Mandarin interpreter.
Ms Anniwell appeared for the first respondent on 1 May 2008 and
Mr Reilly of counsel appeared for the first respondent on 16 June 2008.
The Court hearing was adjourned part-heard to 1 May 2008 to permit the applicant to file any material in regard to allegations raised by him concerning his migration agent. At the hearing on 16 June the applicant tendered an affidavit of 9 May 2008 in support of these allegations.
Jurisdictional issue
The Court must first consider the preliminary issue of whether the Court has jurisdiction to hear the case, given that the present application for judicial review was filed in this Court on 17 January 2008, some 4 years after the Tribunal handed down its decision on
28 January 2004 and a copy of that decision was posted on that same day to the applicant via his agent (CB 83).
Section 477(1) of the Act provides the relevant timeframe in this regard:
An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
In his application to this Court, the applicant stated that he received notification of the Tribunal decision on 25 December 2007.
Annexed to the affidavit of Brin Ellen May Anniwell of 3 June 2008 is an extract from the file subpoenaed from the applicant's agent relating to the applicant and dated 16 February 2004. The relevant part of the file states:
[Applicant] to office, RRT decision explained, … All files given back to [applicant], both signed completion step in Chinese. File closed.
The applicant gave oral evidence at the hearing before this Court concerning when he claimed he had received the Tribunal decision and his explanation for his delay in filing the present application, including that:
·he knew that the Tribunal had offered to conduct a hearing and that he had not attended for the scheduled hearing (Court transcript 1/05/08, p 20; 16/06/08, p 46);
·he did not receive the 28 January 2004 Tribunal letter and the enclosed Tribunal decision addressed to his agent (transcript p 21);
·in answer to the question whether in the period of almost four years until December 2007 he ever wondered about the outcome of his case, he answered "I didn't think about it" (transcript p 22);
·he knew nothing of the outcome of his Tribunal application before December 2007 (transcript p 47);
·at no time prior to December 2007 was he informed of that outcome by the agent: "He never told me." ; "I cannot remember" (transcript p 48);
·he had discussions with the agent at sometime in the period between December 2003 and December 2007 but that he was simply told by his agent that: "You need to wait" (transcript p 49);
·he confirmed that he had not informed the Department of his various changes of address since 2003, but claimed that he did not know he had to do so (transcript pp 49-50).
I do not accept the applicant as a witness of truth on these matters.
I found many of his answers to be evasive and his version of events highly implausible, in particular that he had given no thought whatsoever over the 4 year period to the outcome of his case with the Tribunal. Also very telling, was the inconsistency between his evidence and the contemporaneous file note of his agent annexed to the affidavit of Ms Anniwell. I consider that the Court can infer from this that the applicant was in fact informed by his agent on or before 16 February 2004 that his application for a protection visa had been rejected by the Tribunal (whether or not he was given a copy of the Tribunal decision), but that he then chose to remain in Australia, and move his residence on a number of occasions without telling the Department of his changes of address, in order to avoid detection and for the purpose of extending his unlawful stay in Australia for a period of almost
four years.
Notwithstanding this conclusion, I am bound by the decision of the Full Federal Court in Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105, which dealt with the construction of the words “within 28 days of the actual (as opposed to deemed) notification of the decision” in s.477(1). The Full Court held that:
It follows that, otherwise than where the applicant appears at the handing down of the decision, the only means of the Tribunal satisfying the notification requirement in s 477(1) is if it engages staff or process servers to personally serve the decision statement upon an applicant (per Gyles J at [1]);
and that
Apart from delivery by hand, each of the other methods of delivery permitted by s 441A depends upon the operation of the corresponding deeming provision in s 441C in order to have practical effect. Leaving a document with someone else, dispatching it by some pre-paid means or sending it electronically are incomplete methods of physical delivery to an applicant (per Buchanan J at [34]).
The Full Court concluded, at [37], that:
... the sole method of actual (as opposed to deemed) notification of the written statement, required by s 430(1) to be prepared by the RRT, which is provided by the Act, is delivery by hand. Such a result (although it is reached by consideration of the current provisions in Part 7 of the Act) accords with the outcome in WACB and the emphasis, in the passages earlier quoted, on physical delivery.
The Full Court then considered whether, in every case, it is the applicant, as opposed to an authorised recipient, who must be personally given the Tribunal's written statement. It concluded, at [49], that:
For the purposes of s 477 actual notification to an applicant of a decision of the RRT must be accomplished by physical delivery of a written statement prepared by the RRT in accordance with s 430(1) to the applicant personally.
Notification to the authorised recipient does not therefore suffice.
The first respondent has pointed to the fact that special leave to appeal in this case has been granted by the High Court, but concedes that SZKKC is presently binding upon this Court. The first respondent submits in this regard that:
There is no evidence to suggest that the applicant attended the handing down of the Tribunal decision on 28 January 2004 and there is no evidence to suggest that the applicant was physically given a copy of the decision by the Tribunal within 14 days of the handing down [pursuant to s.430B(6)(a) of the Act]. Therefore, applying SZKKC, the applicant did not receive actual notification of the Tribunal's decision.
I accept this submission. I consider that there is no evidence before this Court that the applicant received actual (as opposed to deemed) notification of the Tribunal decision prior to 25 December 2007. Until the applicant was notified in the manner spelt out in SZKKC in accordance with the provisions of the Act, it cannot be said that s.477 has been enlivened and that time begins to run for the purposes of lodgment of his application for judicial review in this Court.
Accordingly, and notwithstanding my conclusion that the applicant was aware from at least February 2004 that his application for a protection visa had been rejected by the Tribunal, I find that the present application was filed within the time period prescribed by s.477(1), namely within 28 days from 25 December 2007. The Court thus has jurisdiction to hear the matter.
Grounds of the application
Ground 1 of the application states that:
(1)Since January 1997 I started practising of Falun Gong. In June 1999 the Chine authorities began crackdown of Falun Gong Practitioners. I was persecuted by the authorities, such as being forced to attending he washing-brain class, reporting to the local police station. In December 2002 I and my friend were arrested while we were handing out Falun Gong Promotional materials. After my friend were arrested while we were handing out Falun Gong promotional materials. After releasing I tried my best to leave China for Australia in order to avoiding of being further persecuted by the Chinese authorities with my relative’s assistance. My experience in China involving of Falun Gong constitutes a well-founded fear of persecution within the meaning of the Convention.
The Refugee Review Tribunal failed to take into account consideration which was required to take into account, giving rise to a jurisdictional error.
The applicant has provided no particulars as to what “consideration” he says the Tribunal has failed to take into account. As it stands, this ground effectively restates the applicant’s claims set out in his protection visa application (CB 7-8).
The applicant was on notice that, in refusing to grant the applicant’s protection visa, the delegate had set out a series of reasons why he "was unable to be satisfied that the claims reflect an accurate account of events as described by the Applicant," including that:
The details [provided by the applicant] are scant with only a cursory reference to the mistreatment of the Applicant and his purported ordeal. These claims are found to be unsubstantiated statements …
Also going against the Applicant is his unimpeded exit from China on a valid passport issued in his name (CB 40).
In his application to the Tribunal for review of the delegate’s decision, the applicant set out his reasons for considering himself to be a refugee (CB 64). However, he was advised from the terms of the Tribunal invitation letter of 30 October 2003 (which letter was referred to in the subsequent invitation letter of 3 December 2003) that:
The Tribunal has considered the material before it in relation to your application but it is unable to make a decision in your favour on this information alone (CB 68, 71).
The Tribunal therefore put the applicant on clear notice that the information he had already provided both to the delegate and in his application to the Tribunal, did not suffice for the purpose of his being granted a protection visa.
The applicant was also on notice, from the Response to Hearing Invitation Form that he completed, that by declining the invitation for a hearing, the Tribunal could proceed to make a decision on the review without taking any further action to allow or enable him to appear before it, as provided for under s.426A.
The applicant confirmed to this Court that he knew that the Tribunal had offered to conduct a hearing and that he had not attended for the scheduled hearing (transcript p 46).
I am also satisfied that the Tribunal’s summary of the Claims and Evidence (CB 87) includes the matters referred to by the applicant in this ground of review. Further, in its Findings and Reasons, the Tribunal considered these matters in reaching its determination, which was open to it on the material before it, that it was not satisfied that the applicant had a well-founded fear of persecution if he returned to China (CB 88).
The Tribunal’s findings in regard to the applicant's claims, including their lack of consistency and lack of useful detail, are findings of fact not open to judicial review. It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]).
Merely because the applicant disagrees with the Tribunal’s findings in this regard does not amount to an error of law. Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137]. I therefore accept the submission by the first respondent that:
At best, this ground seeks merits review of the Tribunal’s finding that the applicant did not have a well-founded fear of persecution, a task which this Court cannot engage in.
In conclusion, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out an analysis of, the applicant's claims and made findings based on all the material before it. I consider that the Tribunal’s findings of fact were open to it on the material before it; that it provided well-articulated and sufficient reasons for rejecting the applicant’s claims, that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
Accordingly, Ground 1 of the application is rejected.
The applicant's affidavit: conduct of migration agent
The applicant’s affidavit of 16 June 2008 states that:
I remembered that in March [2003] I and [another named person] go to [the agent's] office. [The agent] told us that: "If you apply, it is all the same that you go or not to Refugee Review Tribunal". In December 2003 the Tribunal asked me to attend its hearing. I remembered [the agent's] words so I didn't attend the hearing. It was a great mistake which made me losing an important chance.
Annexed to his affidavit is a statutory declaration from the other named person, referred to in the applicant’s affidavit, who corroborates, as follows, the applicant’s claims of the conversation that allegedly took place on that occasion:
In March 2003 I and [the applicant] went to [address] to ask the immigration agent, [name] to act on behalf of us to apply protection visas. [The agent] told me that: "It is all the same that you go or not to the Refugee Review Tribunal's hearing.” What [the agent] said before us is true. I confirm what [the agent] said.
The High Court in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 at [49] stated that fraud by an agent may have the consequence of "stultifying the operation of the legislative scheme to afford natural justice to the appellants", thereby requiring that the decision of a Tribunal be set aside. However, it further observed that bad or negligent advice by an agent falling short of fraud does not suffice to set aside a Tribunal decision:
there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made (at [53]).
The applicant has not sought to have either this other named person nor the agent brought to give oral evidence in these proceedings. The first respondent thus submits that:
There is no basis to infer fraud [by the agent] in this case, which is what one would need to set aside the Tribunal's decision because of the applicant's dealing with his migration agent. It appears that the applicant was told either not to attend or, at least, that it wouldn't make any difference whether he attended the Tribunal hearing and he accepted that advice. That might have been bad [advice] or, at least, not the best advice, possibly it was honestly given, in that the migration agent may well have thought that the applicant had no real chance of being granted a protection visa, possibly it was careless or just bad [advice] but there's no basis to say it was fraudulent. No facts have been established in this case which would allow any inference of fraud (transcript p 52).
I accept this submission by the first respondent. I consider that there is no evidence in the present case upon which the Court can draw any inference of fraud by the migration agent. Even taking the evidence from the applicant and the other named person at its highest, it can amount to no more that bad or negligent advice. In these circumstances, I am satisfied that the legislative scheme to afford natural justice to the applicant has not thereby been infringed. Accordingly, the Tribunal decision should not be set aside on this basis.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 21 July 2008
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