SZMRX v Minister for Immigration
[2009] FMCA 294
•31 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMRX v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 294 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, 424A, 426A, 441A |
| Minister for Immigration and Multicultural and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358 SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 |
| Applicant: | SZMRX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2255 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 31 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2009 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondent: | Clayton Utz |
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 2255 of 2008
| SZMRX |
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 29 July 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, arrived in Australia in December 2007 and applied for a protection visa in January 2008. In a statement accompanying his protection visa application the applicant claimed to fear persecution in China based on his claim to be from a Christian family and to have been engaged in Christian activities in China. He claimed that his parents had been subject to arrest and attacks, that he had had to hide in another province for some 10 years, that he had subsequently, while organising a traditional Christmas gathering, been taken by the police to the police station, questioned, investigated and released without charges, but thereafter kept under close watch as he was known to be an organiser. He claimed that the left China and went to Argentina, but experiencing some mistreatment in Argentina as a Chinese person then came to Australia.
The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal. In his application for review he nominated an adviser whom he authorised to act for him in relation to his application. He provided the name, address, telephone, mobile phone and facsimile contact details for that named adviser who is described as a registered migration agent and provided a registered migration agent number and a signature. In the part of the application that asks “Where do you want us to send correspondence about your application?” the form advises an applicant that if you nominate an authorised recipient the Tribunal will send all correspondence to your authorised recipient and will only send copies of correspondence to applicants who are in immigration detention. In response to the question as to where correspondence should be sent in connection with the review the box “To my adviser whom I nominate as my authorised recipient” was ticked.
The Tribunal wrote to the applicant care of his authorised recipient by letter dated 7 May 2008 bearing a notation which indicates that it was sent to the adviser's facsimile number acknowledging receipt of the application. On 16 May 2008 the Tribunal wrote again to the applicant care of the authorised recipient at the facsimile number provided in the application for review advising that it had considered the material before it, but was unable to make a favourable decision on that information alone and inviting the applicant to attend a hearing on 28 July 2008 at a time and place specified. The letter also advised that the Tribunal may make a decision without further notice if an applicant invited to appear, failed to attend the scheduled hearing. The Court book contains a transmission log which indicates transmission of that letter by facsimile to the facsimile number provided in the application for review on the date of the letter, 16 May 2008.
On 29 July 2008 the Tribunal sent a further letter to the applicant care of his authorised recipient, again to the same facsimile number, inviting him to attend the handing down of the decision and advising that the Tribunal member would consider any further evidence or submissions lodged with the Tribunal prior to the decision being handed down on 7 August 2008. There is a case note which appears to indicate that a copy of the handing down invitation was also sent to the applicant's home address.
In its reasons for decision the Tribunal referred to the fact that on 16 May 2008 it had issued a letter to the address of the applicant's authorised recipient, being the address to which the applicant authorised correspondence about his application to be sent, inviting him to a hearing and that the Tribunal records showed that the status of that facsimile was “OK” meaning that it was successfully sent. However the Tribunal recorded that no response to its correspondence had been received and that the applicant did not appear before the Tribunal on the day, time and place of the scheduled hearing. In those circumstances pursuant to s.426A of the Migration Act 1958 (Cth) the Tribunal decided to make a decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal observed, however, that notwithstanding this, in the invitation to attend the handing down of the decision, the Tribunal had included the advice that it would consider any further evidence or submissions lodged with the Tribunal prior to the decision being handed down.
The Tribunal set out in full the applicant's written statement attached to his protection visa application. It accepted in its findings and reasons, on the basis of a photocopy of the applicant's passport on the Department file, that he was a national of the People’s Republic of China. It referred to the fact that the mere fact that a person claimed to fear persecution for a particular reason did not establish the genuineness of the asserted fear, that it was well-founded or for the reasons claimed and that the Tribunal was not required to accept unequivocally any and all allegations made by an applicant.
The Tribunal continued.
That said, based on the insufficient detail he provided, the Tribunal is not satisfied the applicant invokes refugee protection obligations in Australia. For instance, the applicant did not provide sufficient detail to satisfy the Tribunal where the applicant attended church in China; what if anything he knew about his claimed faith; why he fled to Shandong Province, and how he managed to remain there in hiding for ten years; how he continued to ‘spread the word of God’; further evidence about the December 1998 incident; how and why he travelled to Argentina (where he apparently remained for a number of years); why he could not return there; and how he practised his faith in Australia.
Based on the claims provided, the Tribunal was not satisfied that all the statutory elements for the grant of refugee protection were made out and hence was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in the People’s Republic of China. It affirmed the decision not to grant the applicant a protection visa.
The applicant sought review by application filed in this Court on 1 September 2008. He filed an affidavit in support sworn on the same day, in which, relevantly, he claimed he had not attended the Tribunal hearing because he had not received the invitation from the Tribunal. In the application he raises what are described as six grounds and three particulars. He in effect reiterated these grounds in general terms in his oral submissions today.
The first ground in the application is that the Tribunal “failed to act judicially and afford procedural fairness”. That ground may intended to raise the applicant's failure to attend the hearing. In the particulars the applicant claims that: “The Tribunal didn't give me the chance to repond (sic) to the hearing since I did not receive the invitation to respond (sic).” I note s.422B of the Migration Act 1958 (Cth) and have considered whether the material before the Court is such as to establish any failure by the Tribunal to comply with its procedural obligations, in particular its obligation to invite the applicant to attend a Tribunal hearing.
The Tribunal is obliged under s.425 of the Migration Act 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. Section 425A deals with the notice of invitation to appear. Under the Act and Regulations the invitation to a hearing must be sent in accordance with one of the methods outlined in s.441A of the Migration Act. In this case the invitation was sent by facsimile letter addressed to the person nominated by the applicant as authorised to receive correspondence (who was also nominated as his adviser).
Under s.441A(5) one of the methods is by transmission by fax to the last fax number provided to the Tribunal by the recipient in connection with the review. In this case the Tribunal wrote to the applicant care of the person nominated as the person to receive correspondence at the facsimile number provided in the application for review, by letter dated 16 May 2008 and transmitted on that day. The period of notice provided in relation to the invitation to the hearing complied with the time requirements prescribed by s.425A of the Act and Regulation 4.35D of the Regulations.
It is apparent on the material before the Court that the Tribunal complied with s.441A(5) in that it sent the invitation to the applicant on the date of the letter as indicated in the transmission log and sent the invitation to the facsimile number given by the applicant in Section C of the application for review lodged with the Tribunal. There is no suggestion in the material before the Court of any notification of change of recipient or address on the part of the applicant prior to the sending of the hearing invitation letter. Nor is there anything in the material before the Court to suggest that the invitation fails in any other way to comply with the requirements of the Migration Act.
No response to the invitation was received by the Tribunal. In those circumstances under s.426A of the Act, as the applicant was invited to appear and did not appear on the day, time and place scheduled, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it (see NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 and NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 at [20]).
In NAVX as the Court stated at [5] and as relevantly is applicable in this case:
… it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
I note further that where the Tribunal has complied with its obligations to invite an applicant to appear, there is no obligation on the Tribunal to take further steps to inform the applicant or to inquire as to his failure to appear in order to avoid jurisdictional error (see Minister for Immigration and Multicultural and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439). I also note that in SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 (at [17]) the Full Court of the Federal Court pointed out:
Section 425 of the Migration Act 1958 (Cth) requires the Tribunal to invite an applicant to a hearing. This can be done by adoption of the process referred to in s 425A. This was done in this case. It is not to the point that actual notice was not received by the [applicant] until after the date for hearing. Compliance with the regime referred to in ss 425, 425A, and 441G satisfies the requirements of procedural fairness to an applicant: s 422B.
The Tribunal did not fall into jurisdictional error in deciding that it could not decide the review in the applicant's favour. It recognised that it had a discretion under s.426A. It was open to it to make a decision on the review without taking further action to enable the applicant to appear before it. I note in passing that as the Tribunal recorded, it also indicated in the letter inviting the applicant to the handing down that it would consider any further information. There was no response to this letter. It has not been established that the Tribunal failed to accord the applicant procedural fairness and in particular, it has not been established that it failed to comply with its obligation to invite the applicant to a Tribunal hearing in accordance with the procedures under the Migration Act and Regulations.
The second ground in the application is that the Tribunal failed to comply with s.424A of the Migration Act. This ground is unparticularised. In this case the only information referred to in the Tribunal reasons for decision is that it sent the invitation to a hearing, the applicant's failure to appear and the contents of the applicant's written statement lodged in connection with his protection visa application. Insofar as that statement may be regarded as information that formed the reason or part of the reason for affirming the decision under review, it falls within the exception in s.424A(3)(ba) as information the applicant gave during the process that led to the decision that is under review. This ground of review is not made out.
The third ground is that: “The Tribunal misunderstood and failed to apply the correct test in order to be satisfied as to whether the Applicant had a well-founded fear of persecution for a Convention reason on the grounds of religion.” This ground is not made out. The Tribunal properly set out the correct test and elements of the definition of refugee in the Refugees Convention, but based on the insufficient detail the applicant had provided of his claims was not satisfied that all the statutory elements for the grant of refugee protection were made out, in particular that the claimed fear was well-founded, that the harm feared constituted persecution or that an essential and significant reason the applicant feared harm was for at least one of the reasons in the Refugees Convention. It was open to the Tribunal to find on the evidence before it that it was not satisfied that the applicant's claimed fear was well-founded. In the absence of such satisfaction the applicant's claim could not succeed.
The next ground in the application is that: “The Tribunal did not take into account certain relevant considerations or integers central to the applicant's claim.” This is not particularised. It has not been established that the Tribunal failed to take into account relevant considerations. It set out all of the applicant's claims, but found that it was not able to be satisfied that the applicant met the pre-requisites for the visa in issue on the insufficient detail he provided. It set out areas of concern in relation to the detail he had provided. Nor can it be said that the Tribunal failed to consider the applicant's claims as contended in ground five of the application. It sufficiently addressed the applicant's claims in its findings and reasons, but due to the insufficient detail in the material before it could not be satisfied that the applicant invoked refugee protection obligations in Australia.
Ground six is that the Tribunal failed to investigate the applicant's genuine claims. The Tribunal was not under an obligation to investigate the applicant's claims. The circumstances in which the Tribunal is required to make further inquiries are limited and the facts of this case are not such as to indicate that the Tribunal was under an obligation of the nature considered in the Federal Court decision in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 by Wilcox J, or that the circumstances are otherwise such that an obligation to make inquiries arose. I note in that respect that the applicant was informed that the Tribunal was unable to make a favourable decision on the information before it by the letter inviting him to a hearing (albeit he did not receive that letter) and that the Tribunal gave him the opportunity to provide further information in its invitation to the handing down.
The first particular may be seen as a ground: “The Tribunal did not centralised (sic) my claim and correctly identify my well found (sic) fears of persecution on the grounds of religion if forced to return to PRC.” The Tribunal clearly understood the basis on which the applicant made claims, as is apparent from its description of the areas of insufficient detail. Given its inability to be satisfied of the basic facts on which the applicant claimed to rely it was not necessary for it to consider further the Convention nexus of religion.
The third particular may also be seen as an independent ground. It alleges that: “The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal ought to use all information for matter of reasoning and evaluation of my case for a protection visa.” This ground lacks clarity and does not appear to relate to the particular circumstances of the Tribunal decision in issue. The Tribunal was not obliged to refer to any independent country information or to search out and obtain information to support the applicant's case (see SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358 at [22] – [26] per Hely J). In any event, in this case the Tribunal did not base its decision on the situation in China, but rather was unable to be satisfied of the underlying facts based on the insufficient detail provided by the applicant. It did not accept claims which would then have to be measured against country information. Hence the applicant’s further elaboration in oral submissions that suggested that the Tribunal erred in not applying the correct independent country information and that it did not assess his claims based on the most recent specific country information do not establish jurisdictional error on the part of the Tribunal. Its decision was not based on independent country information in relation to the situation in China or elsewhere.
No jurisdictional error is made out on any of the bases contended for in the application or in the applicant's oral submissions.
Perhaps the only other matter addressed in oral submissions that might be seen to go beyond what has been discussed above, is that the applicant complained that the Tribunal did not carefully consider his claims. Insofar as this may be seen to raise an allegation of bias (consistent with the claim of lack of procedural fairness in the application), neither apprehended nor actual bias is made out on the material before the Court. The unparticularised claim that the Tribunal did not consider the applicant's claims is not made out given the approach taken by the Tribunal to the lack of detail sufficient for it to be satisfied that the applicant met the criteria for the class of visa in issue. As no jurisdictional error has been established the application must be dismissed.
The applicant has been unsuccessful and the Minister seeks costs in the sum of $3,750 on the basis that that is 75 per cent of the actual costs incurred. I raised with the solicitor for the first respondent the fact that this seemed somewhat higher than would normally be the case in relation to a matter of this nature. I was informed that the solicitor had not had carriage of the matter, but that the sum was based on a calculation of the actual costs and might be seen to reflect the number of grounds raised in the application. The applicant took issue generally with his inability to determine the correctness of this amount.
It is open to the Court in matters of this nature to make a fixed order for costs and I consider that it is appropriate to do so. I have had regard to the provisions of the Federal Magistrates Court Rules and also to the nature of this and other similar matters. I note that this was not a case in which it was necessary for the first respondent to file further affidavit evidence (in particular in relation to the sending of a letter by registered post as is often the case in matters of this nature). I note also that other than the ground in relation to the invitation to the hearing, there was little complexity addressed in the first respondent’s written submissions in relation to the other unparticularised grounds raised in the application. I am not persuaded that this is a case in which it was appropriate that costs in excess of $3,000 should properly be awarded having regard to the amounts normally awarded in matters of this nature and the amounts provided for in the Federal Magistrates Court Rules in relation to migration matters. Accordingly I consider that it is appropriate to order that the applicant pay the costs of the first respondent fixed in the sum of $3,000.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 6 April 2009
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