SZMIE v Minister for Immigration
[2008] FMCA 1593
•12 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMIE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1593 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – typographical error in Tribunal reasons – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 91R, 425, 425A, 426A, 441A |
| “CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492 |
| Applicant: | SZMIE |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1355 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 12 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1355 of 2008
| SZMIE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal signed on 3 April 2008 and handed down on 22 April 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, applied for a protection visa in September 2007. In a statement accompanying his protection visa application he claimed to fear persecution in China because of his practice of Falun Gong. He claimed he had learned Falun Gong from his girlfriend in 2005, who had practised since 1998 and who had suffered serious mental and physical torture from the government after July 1999 because of her involvement with Falun Gong.
The applicant claimed they practised Falun Gong secretly because it was banned. After a visit to Malaysia they practised Falun Gong as usual, but were detained in early 2006 for three days and physically and mentally persecuted and so they made preparations to leave China.
The application was refused and the applicant sought review by the Tribunal. In his application for review he provided a residential address and a separate mailing address as the address for correspondence in relation to his application.
The Tribunal wrote to the applicant by letter dated 17 January 2008 at the address for mail provided in the review application, inviting him to attend a Tribunal hearing at 10.30am on 6 March 2008 (I will return to the content of that letter). The Tribunal received a response to the hearing invitation on 22 January 2008 dated 22 January 2008 in which the applicant indicated that he wished to attend the Tribunal hearing. However in its reasons for decision the Tribunal indicated that the applicant failed to attend the hearing and provided no reason for his non-attendance. Accordingly the Tribunal proceeded pursuant to s.426A of the Migration Act1958 (Cth) to make a decision on the information before it.
The Tribunal summarised the applicant's claims to be a Falun Gong practitioner, but found that the claims were brief and very general. It detailed areas in which there was an absence of information. It also had regard to the fact that the applicant’s passport was issued in May 2005, but he did not depart China until December 2007.
The Tribunal stated that it had hoped, in the absence of a more comprehensive statement from the applicant, that his claims would be able to be tested further at the hearing, but he failed to attend the hearing. On the basis of the material before it the Tribunal found that it could not be satisfied that the applicant was a genuine Falun Gong practitioner, that he had ever been arrested and detained by the Chinese authorities or that he held a real fear of persecution if he returned to China for any Convention reason. The Tribunal reiterated that on the limited detail provided it was not satisfied the applicant evoked protection obligations and that the evidence indicated he had obtained a passport lawfully and had no problems exiting China which would suggest he was not of interest to the authorities.
It pointed out that it was for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection were made it. It was not satisfied on the evidence before it that the applicant was a genuine or imputed Falun Gong practitioner or that he had a real chance of persecution arising from his alleged religious opinion or for any other Convention reason. The Tribunal then stated: “Accordingly, I am satisfied the application (sic) has a well founded fear of persecution for a convention reason the PRC.”
Under the heading "Conclusion" however, the Tribunal stated that on the evidence as a whole it was “not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee's Convention” and that therefore he did not satisfy the criteria in s.36(2) of the Migration Act for a protection visa. Under the heading "Decision" the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.
The applicant sought review by application filed in this Court on 27 May 2008. He filed an amended application on 25 July 2008. In addition he raised a number of grounds in oral submissions today, which were addressed by the solicitor for the first respondent.
The first issue raised in the amended application and elaborated on in oral submissions is that the applicant was “not invited for a hearing.” This ground is not made out. The letter in the Court Book dated 17 January 2008 addressed to the applicant informed the applicant that the Tribunal was unable to make a favourable decision on the information before it; invited him to attend a hearing at the date, time and place specified; advised him to arrive 15 minutes before the start of the hearing and to report immediately to the reception counter; recorded that a Mandarin interpreter would be provided; advised the applicant that the Tribunal would only change the hearing date for good reason and that the applicant should contact the Tribunal immediately if there was a difficulty in the hearing proceeding on this date; and advised him that the Tribunal may make a decision without further notice if an applicant invited to appear before the Tribunal failed to attend the scheduled hearing. Information about hearings and the rights of applicants was said to be attached, as was a “Response to Hearing Invitation.”
As submitted for the first respondent, I am satisfied that the Tribunal met its obligations under the Migration Act1958 (Cth), in particular under ss.425 and 425A, to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The hearing invitation invited the applicant to appear before it to give evidence. It gave the applicant notice of the specified day, time and place at which the applicant was scheduled to appear. It was given to the applicant by one of the means specified in s.441A of the Act. It can be inferred on the material before the Court that this was done in accordance with s.441A and that the letter was despatched within three days of its date by pre-paid post to the last address for service nominated by the applicant given that there is evidence of a “Response to Hearing Invitation” both dated and received by the Tribunal within the period of three working days from the date of the hearing invitation letter.
The invitation provided a period of notice to the applicant that exceeded the prescribed period of 14 days provided for by Regulation 4.35D of the Migration Regulations. It also contained a statement as to the effect of s.426A of the Migration Act in relation to the options available to the Tribunal if the applicant failed to appear before it. Accordingly the invitation complied with the statutory requirements in the Migration Act and Regulations and it cannot be said that the applicant was not invited to a hearing.
The applicant did not attend at the specified time for the hearing. Under the Migration Act the Tribunal was hence entitled to proceed as it did in accordance with s.426A of the Act.
In oral submissions the applicant told the Court that when he arrived at the Tribunal he was told the hearing had finished, that he was late because he didn't know Sydney and that the Tribunal refused to give him another chance of hearing. In order to ensure that there was nothing in the Tribunal file to indicate that this was so (notwithstanding the Tribunal statement that the applicant provided no reason for his non-attendance) the Court adjourned to enable the solicitor for the first respondent to check through the whole of the Tribunal file for any relevant documentation to clarify the handwritten annotation “ticket attached” on the Tribunal hearing record on which the words “no show” had been written.
I am told by the solicitor for the first respondent that there is no evidence of any file notes or other indication in the Tribunal file to support the claims made by the applicant. A document was tendered that is a copy of a printed form document which bears the number “12”, states that "your hearing is due to start at 10.30 am" and instructs "please take a seat and wait for the number above to be called. If your number has not been called 15 minutes after your hearing is due to start, please report to the reception counter". It contains a reference number which is the same as the reference number for the applicant’s Tribunal file number appearing on the “Response to Hearing Invitation” and on other documentation including the hearing invitation. The document is dated 6 March 2008, which is the date on which the hearing was scheduled. It contains a handwritten annotation "no show 6/3/08". It also contains what appears to be a translation in Chinese of the instructions on that document. It appeared in the Tribunal file at a place that would be consistent with the notation on the Tribunal hearing record, which also indicates that the interpreter arrived at 10.20 and remained until 11.00 for a hearing scheduled at 10.30.
The evidence before the Court does not establish that, as the applicant now claims from the Bar table, he arrived late and the Tribunal refused to give him another chance of a hearing. It is contrary to the Tribunal's statement that the applicant provided no reason for his non-attendance.
In any event, as the first respondent submitted, once the Tribunal had met its obligation to invite the applicant and he had failed to attend the Tribunal hearing at the specified time, date and location, the Tribunal was empowered to make the decision that it did under s.426A of the Act. While that section does not prevent the Tribunal from rescheduling the applicant's appearance or delaying its decision in order to enable to applicant's appearance before it as rescheduled, the evidence before the Court is not such as to establish that the Tribunal failed to act reasonably in exercising its discretion to make the decision as it was empowered to do under s.426A(1) of the Act, or that it otherwise fell into jurisdictional error as submitted by the applicant.
Further, as submitted by the first respondent, having proceeded as it did the Tribunal was not obliged to accept the applicant's claims at face value. By not attending the hearing the applicant was taken to have assumed the risk that any omissions, inconsistencies or unsatisfactory features of his documents or claims would be noted by the Tribunal without him having an opportunity to expand upon or clarify them (see S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492 at [25]).
The second aspect of the first ground in the amended application is that: "My application was not considered in accordance with Migration Law 1958". Insofar as this is an elaboration of the applicant's claim that he was not invited for a hearing it is not made out. As indicated, the Tribunal was not obliged to accept the applicant's claims at face value. Further it has not been established that the application was not considered in accordance with migration law. The obligation of the Tribunal pursuant to s.65 of the Migration Act is to determine whether it is satisfied that the requirements for the grant of a visa have been met. In the absence of a positive finding of satisfaction, a visa application must be refused (see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208, NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
As indicated, the applicant’s reasons for non-attendance at the hearing now proffered do not change the fact that as the Tribunal had complied with s.425 and 425A of the Act in inviting him to attend a hearing it could, as discussed above, proceed under s.426A of the Act to consider and decide the matter without conducting any further enquiries (see NADKof 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 and SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110).
The applicant also claimed in oral submissions that the Tribunal was biased against him. This claim was not particularised. Bias is a serious allegation which must be clearly made and distinctly proved. There is nothing in the material before the Court (in particular the Tribunal reasons for decision) to establish actual bias in the sense considered by the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 such that it could be said that the Tribunal member’s mind was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
I note, as stated in SZHVL v Minister for Immigration and Citizenship [2008] FCA 356, that only in a rare and extreme circumstance would bias on the part of the Tribunal be established simply by reference to the reasons produced by the Tribunal. It is not made out in this case by those reasons or by the Tribunal proceeding in the manner that it did under s.426A of the Act.
As the Tribunal indicated, it had hoped, in the absence of a more comprehensive statement, that the applicant's claims would be able to be tested at a hearing. There is nothing in its consideration of the applicant's claims to indicate that it had formed a conclusion incapable of alteration prior to the time of its decision. Nor is there anything in the Tribunal reasons for decision to support any contention that apprehended bias was apparent from the perspective of the appropriately informed, fair minded lay observer as considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
The applicant claimed variously that the Tribunal did not understand his claim properly, that the Department made a judgment based on assumption and that the Tribunal did not deal with his claims according to s.91R of the Act.
The Tribunal made its decision on the basis of the information before it consisting of the information in the applicant's protection visa application. There is nothing in the Tribunal's decision to indicate that it did not understand those claims as presented. If the applicant's contention is that the Tribunal did not understand that there were other aspects to his claims, the Tribunal recognised the absence of detail, but also the fact that the applicant's failure to attend the hearing had not provided any elaboration on those claims. Although the applicant refers to the "Department" as this is an application for review of the Tribunal decision it is relevant to have regard to the Tribunal decision. The Tribunal made its judgment based on the evidence before it, not on assumptions as contended by the applicant. Given that on the basis of the information before it the Tribunal could not be satisfied that the applicant was a genuine Falun Gong practitioner, or that any of the claimed consequences had flowed from that fact, it was not necessary for it to consider in detail issues such as the meaning of serious harm and persecution under s.91R of the Act. These claims are not made out.
It is convenient to consider together the applicant's claims that the Tribunal refused the application without any reason and that it did not evaluate the applicant's claimed fear of persecution on return to China. Contrary to these contentions, the Tribunal did give reasons for its conclusion, essentially that it was unable to be satisfied of the applicant's claims on the basis of the limited information before it and having regard to the information in relation to his passport and travel. As it was not satisfied of the applicant's claims that he was a genuine Falun Gong practitioner (which was the only basis on which he asserted a fear of persecution) it followed that the Tribunal, as it stated, could not be satisfied that the applicant had a real fear of persecution for any Convention reason if he returned to China.
The second ground in the amended application is that: “The Tribunal failed to notify me in writing of the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider his application for a protection application in accordance with S424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.” The applicant reiterated these claims in oral submissions, adding that the Tribunal should have done so whether or not this procedure was irrelevant to his case and because it failed to do so he lost the opportunity to comment on the issues in his case which were not reasonably dealt with by the Tribunal.
In the amended application reference is made to the decision of the High Court in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294. However the difficulty that the applicant faces with this claim is that the Tribunal did not rely on any information that enlivened s.424A(1), hence no obligation arose to provide written particulars of information within the meaning of that section and as considered by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18].
Insofar as the Tribunal relied on information provided by the applicant in connection with his protection visa application and the review such information is within the exceptions in s. 424A(3)(b) and (b)(a).
Further, contrary to the applicant's contention, the Tribunal is not obliged under s.424A to put its provisional reasoning to an applicant for comment (see SZBYR). It was under no obligation to put its “reasons” to an applicant for comment prior to making its decision. No failure to comply with s.424A is established.
One other matter was addressed in the first respondent's written submissions. As set out above, towards the end of its decision the Tribunal stated: “Accordingly, I am satisfied the applicant has a well-founded fear of persecution for a convention reason the PRC (sic).”
I am satisfied however, that reading the Tribunal decision fairly and as a whole in accordance with Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259, it is clear that this statement was intended by the Tribunal to have been expressed in the negative and that the word "not" has been incorrectly omitted between the words "am" and "satisfied". This sentence would otherwise be completely inconsistent with the balance of the Tribunal findings and reasons and its subsequent conclusion and decision.
The solicitor for the first respondent referred to authorities which have addressed this issue. Directly in point is the decision of Marshall J in “CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682 where the typographical error in question was, as in this case, omission of the word "not", which led the part of the Tribunal reasons in question to read that the Tribunal “is satisfied” that there is a real chance that the applicant faces persecution for reason of her race should she return to Sri Lanka. However, Marshall J (at [29]) saw no reason to, as he put it, "defy common sense" by not observing that a typographical error was made and found that he would read in the word "not" prior to the word "satisfied" in the relevant sentence. The same approach should be taken in the present case.
I bear in mind the caution expressed by Finklestein J in Handa v Minsterand Multicultural Affairs (2000) 106 FCR 95 (at [17]) about "filling in gaps" in relation to legislative intent. The omission in this case is a typographical error. The Tribunal's omission of the word "not" does not give rise to a jurisdictional error (see Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 and SZLPH v Minister for Immigration Citizenship [2008] FCA 744).
As no jurisdictional error has been established, the application must be dismissed.
The applicant has been unsuccessful and there is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 27 November 2008
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