SZMCN v Minister for Immigration
[2008] FMCA 980
•22 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMCN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 980 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – alleged incompetent advice by migration agent – whether conduct of migration agent sufficient to set aside Tribunal decision – whether applicant properly served with invitation to attend Tribunal hearing – whether procedural irregularity or unfairness – applicant must make out own case. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 425, 425A, 426A, 441A, 474 |
| SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 NAZW v Minister for Immigration [2005] FMCA 1233 Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Abebe v Commonwealth (1999) 197 CLR 510 Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZMCN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 774 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 1 July 2008 |
| Date of Last Submission: | 1 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2008 |
REPRESENTATION
| Solicitor for the Applicant on the adjournment application: | Mr Mandoh |
The Applicant appeared in person
at the hearing
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 2 April 2008 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,200 payable within three (3) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 774 of 2008
| SZMCN |
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 February 2008 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 4 January 1963. She claims to be a national of China and of Buddhist faith.
The applicant arrived in Australia on 7 September 2007 on a Chinese passport issued in her own name.
The applicant lodged an application for a protection visa on
11 September 2007on the basis that she was arrested and persecuted in China for being a Falun Gong practitioner.
On 12 November 2007 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 (see Legislative framework).
On 12 December 2007 the applicant applied to the Tribunal 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
On 20 December 2007, the Tribunal sent a letter to the applicant inviting her to appear before it on 31 January 2008 to give oral evidence and present arguments. The applicant did not attend on that occasion.
The applicant’s claims (Court Book (CB) 79)
The Tribunal considered the applicant’s claims in her protection visa application that she was arrested in Shanghai in November 2003 and sent to a prison for “posting Dafa truth clarification materials”.
The applicant claimed that while in prison she was forced to attend classes to “wash head” and was “tortured terribly” in an attempt to get her to renounce Falun Gong. She claimed that:
The torture methods include forcing me to squat for 18 hours a day, holding me in small cells, forcing me to sit on metal benches for long periods of time, shocking me with electric batons, pouring cold water on me, hang me up, kicking and beating. They even tortured me with even more vicious methods: they placed my bunks in four directions of the room, my four limbs were cuffed to the upper beds of the four bunks. I was suspended about one meters above the ground then the policemen ordered inmates to kick my four bunks so I moved in four directions. As a result my four limbs would be pulled in four different directions causing excruciating pain. But I still refused to renounce Falun Gong.
I had no way out of China if I still practise Falun Gong. I bribed a government official with a high position to issue me a passport … (CB 29, 79).
The applicant made no new claims, nor did she submit any further material or information to the Tribunal with her review application.
The Tribunal’s findings and reasons (CB 80-81)
The Tribunal found that the applicant's claims to be a Falun Gong practitioner were “scant and lacking in crucial details”:
She has provided no detail in relation to when she became a Falun Gong practitioner, the extent of her practice, whether she continued to practise Falun Gong in China following her claimed arrest in 2003, the length of the claimed detention, and whether she suffered any further harm following the claimed arrest and detention. Given the lack of details in the applicant’s claims and the lack of opportunity to explore the details in these claims or their veracity, the Tribunal is not satisfied that the applicant has been or is a practitioner of Falun Gong, or that she was involved in Falun Gong activities more generally. It follows that the Tribunal cannot be satisfied that the applicant was ever harmed by the authorities in China as a result of her claimed practice of Falun Gong. The Tribunal is therefore not satisfied that the applicant was, or is, a person of interest to the authorities in China and that she obtained her passport by bribing officials because she was a Falun Gong practitioner.
In light of the lack of detail in the applicant’s claims in relation to crucial issues, the Tribunal was not satisfied on the evidence before it that there was a real chance that the applicant would be persecuted for a Convention reason in China now or in the reasonably foreseeable future. The Tribunal was therefore not satisfied that the applicant had a well founded fear of persecution within the meaning of the Convention.
The proceedings before this Court
The applicant filed the application in this Court on 2 April 2008 setting out 2 grounds of review of the Tribunal’s decision.
The applicant appeared in person before this Court at the hearing on
1 July 2008with the assistance of a Mandarin interpreter. Ms Tondl appeared for the first respondent. Prior to the commencement of the hearing, Mr Mandoh appeared for the applicant seeking an adjournment of the hearing. The Court declined such application.
The applicant was invited to say anything she wished to in support of the grounds of review, and generally, after each ground was translated for her.
Grounds of application
Ground 1 of the application
Ground 1 of the application states that:
I was not properly represented before the Refugee Review Tribunal.
The applicant’s affidavit filed on 2 April 2008 in support of her application for judicial review states that:
On or about the time of my arrival into Australia I engaged a Mr Songtao LU to make an application for a protection visa on my behalf.
On or about 28 March 2003 [sic] the said Mr Lu informed me that my application for a protection visa was refused by the Refugee review Tribunal.
I do not believe that the said Mr Lu properly represented me in relation to my application for a protection visa. I was not aware that the tribunal invited me to present facts and evidence in support of my application and I was not advised and I did not understand the laws and procedures applied permitting the same.
… I intend to place further facts and evidence in support of those facts before the Court once I have gathered that evidence from here and abroad.
Also relevant in the present context, is the following submission made by Mr Mandoh on the adjournment application (seeking that the applicant needed to obtain “as a matter of necessity” documents from “the Chinese government”):
my client instructs me that the reason why these particular documents were not before … the Tribunal originally … was because my client’s legal representative did not advise them that they needed these documents … they say that their previous legal representation was incompetent, in particular in that regard, in not advising them that they needed this representation in relation to this particular matter (transcript p 4). … she was relying 100 per cent on her previous legal representation to explain these documents to her, to fill in the documents, the applications, various things, to indicate what her address … her previous legal representation wasn’t satisfactory and did not explain everything to her … basically, it’s a breakdown of communication between my client and her previous legally qualified migration agent and that explains … why various correspondence was not obtained by my client and she was not able to communicate various important matters to the [Tribunal] (transcript, 1/7/08 p 7).
As at the date of the Court hearing, the applicant had not put on any further evidence in support of her allegations that she had received incompetent advice from her legally qualified migration agent.
The applicant made no further submissions at the hearing before the Court in support of this ground of review. The first respondent submitted that:
There is no obligation to ensure that an applicant is represented before the RRT. That is a matter for the applicant to organise for herself (transcript, p 12).
The applicant has not sufficiently particularised how she says she was “not properly represented before the Tribunal”, other than to allege incompetence on the part of her migration agent and a breakdown in communication between them consequent upon which she says “various correspondence was not obtained by [her] and she was not able to communicate various important matters to the [Tribunal].”
I also note that, notwithstanding the applicant’s allegations against her agent, she has still sought to rely in these proceedings on Annexure “A” to her affidavit in support of her application for judicial review, which is the very same statement which accompanied her original protection visa application (CB 29), and the relevant full text of which was quoted by the Tribunal in its decision under Claims and Evidence (CB 79).
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]).
I consider that there is no evidence in the present case upon which the Court can draw any inference of fraud by the applicant’s migration agent. Even taking the evidence from the applicant at its highest, she has not sought to assert other than incompetent, 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.
Otherwise, I detect no procedural irregularity or procedural unfairness on the part of the Tribunal in proceeding to determine the matter in the absence of the applicant at the hearing and without her putting any evidence and presenting arguments before it.
The applicant is not entitled to common law natural justice in this regard: s.422B of the Act. Rather, the Tribunal must observe the statutory expression of natural justice in Part 7, Division 4 of the Act: (Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 at [66]; SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 at [8]).
Section 425 of the Act requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the delegate's decision.
In this regard, the address for correspondence provided by the applicant in her Tribunal application was: “1/400 Caledonian St, Bexley” (CB 60). Her residential address however was stated as: “1/40 Caledonian St, Bexley” (CB 59). The Tribunal’s letter acknowledging receipt of her application was sent to the former nominated address, but was returned to sender (CB 62-64). A Tribunal Case Note of 17 December 2007 (CB 65) records that: “Unable to contact applicant to clarify address, as they did not provide any contact telephone numbers to the Tribunal”.
It further notes that the Departmental file contains a letter to the applicant stating that “enquiries made by the Department indicate that no such address exists”. In these circumstances, the Tribunal sent both a copy of the application acknowledgement letter (CB 65) and the letter inviting the applicant to attend the Tribunal hearing (CB 66-67) to both 1/400 and 1/40 Caledonian St, Bexley. The later was returned to sender (CB 68). The applicant did not attend the Tribunal hearing on
31 January 2008. In these circumstances, the Tribunal proceeded to determine the matter pursuant to s 426A of the Act.
I am satisfied that the invitation sent by the Tribunal to the applicant to attend the hearing complied with the statutory requirements contained in ss.425(1) and 425A of the Act and Reg.4.35D of the Migration Regulations 1994 (Cth) (the Regulations) in that it:
·contained an invitation to the applicant to appear before it to give evidence (s.425)
·provided notice of the specified day, time and place of the hearing
·was given to the applicant by one of the means specified in s.441A of the Act (namely, registered prepaid post to the last address for service or residential address provided by the applicant to the Tribunal in connection with the review)
·provided a period of time to the applicant, which was at least the prescribed period of 14 days: Reg.4.35D of the Regulations
·contained a statement giving effect to s.426A (regarding the options available to the Tribunal if the applicant failed to appear before it).
I am thus satisfied that the Tribunal was entitled to make a decision on the review without taking any further action to allow or enable the applicant to appear before it pursuant to s.426A of the Act: NAZW v Minister for Immigration [2005] FMCA 1233 at [8-10]. I detect no jurisdictional error on this basis.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application
Ground 2 of the application states that:
The Refugee Review Tribunal did not have all material particulars before it at the hearing of the review.
I rely on my reasoning in regard to ground 1 above in the present context.
Otherwise, it is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of an individual case will have to be supplied by the applicant herself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts.
The Tribunal is not required to make the applicant’s case for her: SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As also observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Furthermore, the Tribunal is not required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451.
I thus detect no procedural fairness on this basis.
Accordingly, Ground 2 of the application is rejected.
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 forty-five (45) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 22 July 2008
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