SZMDH v Minister for Immigration
[2008] FMCA 1013
•4 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMDH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1013 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China based upon Falun Gong practice – applicant not attending Tribunal hearing – whether the Tribunal’s discretion under s.426A of the Migration Act 1958 (Cth) was enlivened considered – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425, 425A, 426A Migration Regulations 1994 (Cth) |
| Minister for Immigration v VSAF of 2003 & Ors [2005] FCAFC 73 NADK of 2002 v Minister for Immigration [2002] FCAFC 184 NALQ vMinister for Immigration [2004] FCAFC 121 NASF vMinister for Immigration [2004] FCAFC 162 SZBYR v Minister for Immigration (2007) 235 ALR 609 SZCIA v Minister for Immigration [2006] FCA 238 SZEZI v Minister for Immigration [2005] FCA 1195 VAF v Minister for Immigration (2004) 206 ALR 471 VNAA vMinister for Immigration (2004) 136 FCR 407; [2004] FCAFC 134 |
| Applicant: | SZMDH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 899 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 4 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr P Snell Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 899 of 2008
| SZMDH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 25 March 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China and had made claims of persecution based upon the practice of Falun Gong. Background facts relating to the applicant's protection visa claims and the Tribunal decision upon them are conveniently set out in the Minister's written submissions filed on 11 July 2008. I adopt as background for the purposes of this judgment with minor amendments paragraph 2 through to 7 of those written submissions:
The applicant’s written claims were contained in a statement attached to her protection visa application: court book (“CB”) 14. She provided no further written claims to the Department or to the Tribunal and did not attend her Tribunal hearing.
The applicant, a citizen of the People’s Republic of China, claimed to fear persecution as a result of her practice of Falun Gong. The applicant claimed that she began to practise Falun Gong in 1998 and subsequently set up a Falun Gong branch in Fuqing. She promoted Falun Gong to her friends and in July 1999, local police came to the applicant’s home and required her to sign a form stating that she would not practise Falun Gong. In early 2003, the applicant claimed to have been arrested by police and detained for three days.
The delegate refused the applicant a protection visa on the basis that the applicant’s claims were vague and lacked substantiating detail which cast doubt on her credibility. The delegate considered that if the applicant had been of interest to the Chinese authorities she would not have been able to depart the PRC legally on a passport issued in her own name: CB 24-25.
Tribunal proceedings
On 18 January 2008, the applicant lodged an application with the Tribunal seeking review of the delegate’s decision: CB 27-30. By a letter dated 1 February 2008, the Tribunal validly invited the applicant to attend a hearing on 3 March 2008 to give oral evidence and present arguments in support of her case: CB 31- 32.
The applicant did not reply to that invitation and failed to attend the hearing on 3 March 2008: CB 37-38. The Tribunal noted that the applicant had been invited to attend a hearing but did not respond to the invitation and failed to attend the hearing. As a result the Tribunal proceeded to make a decision on the material before it: CB 43.6.
The Tribunal found that there was “insufficient detailed information from the Applicant to satisfy it that she is or has ever been a genuine Falun Gong adherent” (CB 46.5) and that applicant’s claims were “lacking in essential detail” (CB 54.7) As a result the Tribunal could not be satisfied that the applicant was a Falun Gong practitioner or that there was a real chance that the applicant had suffered any harm amounting to persecution or that she had a well-founded fear of persecution within the meaning of the Convention: CB 46.5. The Tribunal’s decision and approach reveals no error.
These proceedings began with a show cause application filed on 14 April 2008. The applicant now relies on an amended application filed on 25 June 2008. That application asserts a failure by the Tribunal to consider the applicant's practice of Falun Gong in Australia and also asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant also relies upon her affidavit filed with her original application on 14 April 2008. The applicant asserts in that affidavit that the Tribunal was biased and that the Tribunal failed to invite her to a hearing. I received the affidavit as a submission.
I have before me as evidence the Court Book filed on 19 May 2008. The Minister also relies upon affidavits by Sean Louis Dworcan made on 2 June 2008 and by Peter Snell made on 29 July 2008.
I conducted a show cause hearing in this matter on 21 July 2008. At that time I ordered the Minister to show cause why relief should not be granted in relation to the issue of whether the Tribunal had discharged its obligation to invite the applicant to a hearing by a letter directed to her nominated residential address in Australia in circumstances where there appeared to be a minor spelling error in the nominated address. My reference to the spelling error was to the Australia Post document annexed to the affidavit of Mr Dworcan. That establishes that the hearing invitation (CB 31 and 32) was dispatched to the applicant by registered post on 1 February 2008, the same date that the letter bore. However, the Australia Post record lists the address as 20 Paul Street, Auburn 2144. The applicant's nominated residential address in both her protection visa application and her application to the Tribunal was 20 Paut Street, Auburn, New South Wales 2144 (see CB 28). That was the address used in the body of the letter dated 1 February 2008. There is a photocopy of the envelope at CB 34 but the address is obscured by a "return to sender" sticker. I accept, however, from the affidavit of Peter Snell that the envelope contained the address of the applicant at 20 Paut Street, Auburn, New South Wales 2144 underneath that sticker. I accept therefore that the hearing invitation was sent to the applicant in accordance with the Migration Act.
It follows that the Tribunal's discretion to proceed in the absence of the applicant pursuant to s.426A of the Migration Act was enlivened. It was open to the Tribunal to proceed as it did in reliance upon that section.
The hearing invitation was returned to the Tribunal on 12 March 2008. That is established by the stamp on a copy of the letter appearing at CB 35. The Tribunal's decision had been signed on 3 March 2008, but it was not handed own until 25 March 2008. There is no evidence whether or not the presiding member was aware of the return of the hearing invitation prior to handing down the decision. Even if the presiding member was aware of the return of the hearing invitation, however, there was nothing further the Tribunal could have done to discharge its obligation to invite the applicant to a hearing. She had nominated only one means of communication, which was by mail to her residential address. She did not have an authorised recipient and had not identified any landline, mobile or facsimile number that could have been used. On this issue, therefore, I accept the Minister's submissions in paragraphs 9 and 10 of the written submissions:
These grounds cannot be established. The authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss.425 and 425A of the Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries.[1] Relevantly, the hearing invitation sent by the Tribunal to the applicant and dated 1 February 2008 (at CB 31-32):
(a)invited the applicant to appear before it to give evidence (s.425);
(b)gave the applicant notice of the specified date, time and place at which the applicant was scheduled to appear;
(c)was given to the applicant by one of the means specified in s.441A - namely, s.441A(4) because it was dispatched within 3 working days by prepaid post to the last address for service nominated by the applicant[2];
(d)provided a period of notice[3] to the applicant that was at least the prescribed period of 14 days provided for by reg 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”); and
(e)contained a statement to the effect of s.426A (regarding the options available to the Tribunal if the applicant failed to appear before it).
Accordingly, the invitation complied with the statutory requirements contained in sections 425(1) and 425A of the Act and reg. 4.35D of the Regulations. As the applicant did not attend the scheduled hearing, the Tribunal was entitled to proceed as it did without taking any further action to enable the applicant to appear before it.
[1] See: NADK of 2002 v Minister for Immigration [2002] FCAFC 184, NALQ vMinister for Immigration [2004] FCAFC 121, VNAA vMinister for Immigration (2004) 136 FCR 407; [2004] FCAFC 134, NASF vMinister for Immigration [2004] FCAFC 162, Minister for Immigration v VSAF of 2003 & Ors [2005] FCAFC 73.
[2] See Affidavit of Sean Louis Dworcan sworn 2 June 2008.
[3] Regulation 4.35D provides for the purposes of s.425A(3) a prescribed period of fourteen days between the date that notification of the hearing date was deemed to have been received by the applicant and the date of the scheduled hearing.
I reject the other grounds for review advanced by the applicant. There was no evidence of bias. There was no information requiring disclosure pursuant to s.424A of the Migration Act. The Tribunal did not overlook the applicant's claims of Falun Gong practice. The Tribunal considered there was insufficient detail in those claims to enable it to make a favourable decision. I accept the Minister's submissions in relation to those issues in paragraphs 12 through to 15 of the written submissions:
The first ground asserting that the Tribunal failed to consider the applicant’s practice of Falun Gong in Australia cannot be established. The Tribunal clearly considered the applicant’s claims made in her protection visa application: CB 45. However, the applicant failed to attend the hearing in the face of an invitation which indicated that the Tribunal was unable to find in her favour on the basis of the material in its possession. In these circumstances, the Tribunal, having read all the material and having evaluated its content and weight, was not satisfied of the applicant’s claims. This finding was open to the Tribunal on the material available to it.
In regard to the alleged breach of s.424A of the Act, the first respondent submits that where an applicant fails to attend a hearing of the Tribunal, there is no section 424A obligation which arises.[4]
In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 [18], a majority of the High Court approved the statement of Finn and Stone JJ, in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477, that the word “information”:
…does not encompass the tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc…
Therefore the Tribunal’s finding of lack of satisfaction did not attract the operation of s.424A(1) because it was not “information” for the purposes of ss.424A (1) and cannot be considered “part of the reason for affirming the decision that is under review”.[5]
[4] SZEZI v Minister for Immigration [2005] FCA 1195 per Allsop J at [29] to [30] and SZCIA v Minister for Immigration [2006] FCA 238.
[5] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]-[18].
I conclude that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision that the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. The Minister seeks costs fixed in the sum of $4,000. Scale costs would be $5,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 September 2008
0
10
2