SZNCJ v Minister for Immigration

[2009] FMCA 211

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNCJ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 211

MIGRATION – Review of Refugee Review Tribunal decision – applicant seeking impermissible merits review – Tribunal considered material before it – Tribunal need not uncritically accept any or all of applicant’s claims – Tribunal entitled to make decision without a hearing where applicant had consented – no bias or apprehension of bias – no fraud – application dismissed.

Migration Act 1958 (Cth), ss.65, 36(2), 441A, s.425A, 424A, 476, reg.4.35D(b)

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
WADA v Minister for Immigration & Multicultural Affairs [2002] FCAFC 202
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth (1999) 197 CLR 510 [1999] HCA 14; 162 ALR 1
ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 per Allsop J
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
SZIMG v Minister for Immigration and Citizenship [2008] FCA 368
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152
Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

Applicant: SZNCJ

First Respondent: Minister for Immigration & Citizenship

Second Respondent: Refugee Review Tribunal

File Number: SYG 3443 of 2008

Judgment of: Nicholls FM

Hearing date: 13 March 2009

Date of Last Submission: 13 March 2009

Delivered at: Sydney

Delivered on: 13 March 2009

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the Respondents: Ms E Baggett

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 30 December 2008 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3443 of 2008

SZNCJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript – As Corrected)

1. I have before me an application made on 30 December 2008 under the Migration Act1958 (Cth) seeking review of the decision of the Refugee Review Tribunal, made on 28 November 2008, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

1. The first respondent has put before the Court a bundle of relevant documents (“Court Book” – CB), from which the following background may be discerned.

2. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia in July 2008 and applied for a protection visa on 15 July 2008 (the application is reproduced at CB 1 to CB 29).  On 12 September 2008 a delegate of the respondent Minister refused the application (the decision record is reproduced at CB 41 to CB 46).  The applicant subsequently sought review of that decision by the Tribunal. (See CB 47 to CB 50).

Applicant’s claims to protection

1. The applicant’s claims to protection in Australia are said to arise from his practice of Falun Gong, which began in 1998, and for which he claimed to have been arrested by police and taken into custody.  The applicant claimed that while detained he was beaten and tortured in “different” ways and was forced to provide information about other Falun Gong practitioners.  He claimed to fear harm from the government of if he were to return to China.

The Tribunal

1. Following receipt of the application for review, by letter dated 24 October 2008 (CB60), the Tribunal invited the applicant to attend a hearing before it, scheduled for 5 December 2008.  The Tribunal informed the applicant that it could not make a favourable decision on the material that had been put before it. Importantly, the letter made reference to the information provided by the Tribunal to the applicant, which went to the issue of the importance of the hearing, and provided the applicant with the opportunity to ask the Tribunal to take evidence from any witnesses.

2. The applicant responded to the Tribunal and indicated in the appropriate part of the document headed “Response to Hearing Invitation” (reproduced at CB 64), in answer to the question:

   “DO YOU WANT TO COME TO A HEARING?”

   What is indicated is:

   NO, I/we do not want to come to a hearing

   I/we consent to the tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.”

3. The Tribunal then proceeded to hand down its decision on 28 November 2008.  The Tribunal found that it could not be satisfied that the applicant had a well-founded fear of persecution for a Refugees Convention reason.  In its decision record, the Tribunal set out the applicant’s claims and evidence. It noted that his claims could not be tested and, further, that there was: “nothing to support these claims other than the applicant’s unsubstantiated assertions” (CB 71). Given the limited detail provided by the applicant, the Tribunal found that it could not be satisfied that the claimed events had actually occurred. Given the circumstances, it could not test the voracity of the applicant’s claims.  The Tribunal therefore affirmed the decision under review.

Application to the Court

1. In the application made to the Court on 30 December 2008, the applicant put forward the following as the grounds of the application:

   “1. Decisions for my application are not fair.

   2. I do not agree with the Department of Immigration and RRT.”

2. In his affidavit made on 30 December 2008 and filed on the same day the applicant also complained as follows:

   I received a letter from the RRT inviting me to attend a hearing scheduled on 5 December 2008. However I was advised that I do not need to attend the hearing as my application for review would be refused regardless. 

3. Despite opportunity to provide an amended application giving further particulars, no other particulars or details have been put before the Court. 

Hearing before the Court

1. At the hearing before the Court, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms Baggett appeared for the first respondent. 

2. The applicant submitted to the Court that he had further evidence from China, and that he had hoped that he would be able to bring a local witness to the Court. He subsequently explained that the witness was a Falun Gong practitioner who had relatives in China, and that this witness would have assisted the applicant, presumably by giving evidence about the conditions in China, and injuries to Falun Gong practitioners in China.

3. The applicant also submitted to the Court that a person (whom he first described as an “agent”, but subsequently clarified that that was a “wrong term”, and that it was someone who had “helped him”, and whom he only knew by the family name “Xue”) had told him that it was pointless to go to the hearing and that that is why he notified the Tribunal that he did not wish to attend the hearing.

4. The Court also has before it written submissions filed on behalf of the first respondent and submissions made by Ms Baggett before the Court today. 

Consideration

1. To the extent that the application asserts generally that the applicant was denied fairness by the Tribunal, I note that s.422B of the Act applies in this matter, relevantly making the provisions set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (of course, absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).

2. The procedural fairness requirements in the Act deal with the process of decision making, not the merits of the decision.  As was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25]: “What is required by procedural fairness is a fair hearing, not a fair outcome … It is therefore not to the point to ask whether the Tribunal’s factual conclusions were right. The relevant question is about the Tribunal’s processes, not its actual decision.” 

3. To the extent that the application appears to complain that the decision was not fair, with respect, this statement sits with the well-established case law that it is not part of the function of this Court to engage in fact-finding concerning the merits of an applicant’s case (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259, and see, for example, WADA v Minister for Immigration & Multicultural Affairs [2002] FCAFC 202 at [33] and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13]). It is the case even that there is no error of law, let alone jurisdictional error, in the Tribunal making some wrong finding of fact (Abebe v Commonwealth (1999) 197 CLR 510 [1999] HCA 14; 162 ALR 1).

4. I particularly emphasise this point for the benefit of the applicant. Before the Court today, the applicant said that he had some evidence that he wanted to bring from China and that he had hoped that a local Falun Gong practitioner would accompany him to give evidence about conditions in China. 

5. Both of those matters clearly go to the merits of the applicant’s case before the Tribunal and would not have assisted the applicant before the Court today.  As I have said to the applicant this morning, the time to have brought this evidence and witnesses was at the hearing before the Tribunal. It is the Tribunal (not the Court) that is charged with properly deciding the merits of the applicant’s claims to be a refugee.

6. On the material that is before the Court, and relevant to the task facing this Court, it is clear that the Tribunal did consider the material put before it, and concluded that it could not be satisfied on what was before it, that the applicant was a person to whom Australia owed protection obligations. 

7. The Tribunal’s findings that the applicant’s claims were unsubstantiated and lacked detail were findings of fact falling, in my view, squarely within what has been described as the role of the Tribunal as the finder of fact “par excellence” (see ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J. at [67]). As I said to the applicant specifically, these findings are not open to review by this Court.

8. Merely because an applicant (such as the one before the Court today) disagrees with the Tribunal’s factual conclusions (as appears to be what the application is seeking to put before this Court) and even disagrees with the Tribunal’s ultimate conclusion, this does not of itself amount to an error of law. 

9. It is also relevant to note that the Tribunal is not required to accept uncritically any, or indeed all, of the applicant’s claims or assertions put before it (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437).

10. The relevant statutory regime to applications of this type, that is, an application for a protection visa, is to be found in s.65 and s.36(2) of the Act which, in effect, requires the Tribunal to reach the requisite level of satisfaction that the applicant before it meets the criteria for the grant of a protection visa.

11. In reality, what that means is that the Tribunal needs to be satisfied that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the UN Refugee’s Convention.  If the Tribunal is unable to reach this requisite level of satisfaction then the protection visa must be refused. I note the Minister’s written submissions in this regard (in particular, reference to SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225. I note also similarly: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

12. In the case before the Court now, the Tribunal, in its letter of invitation to hearing, had plainly put to the applicant that it was unable to reach that level of satisfaction such that it could make a favourable decision to the applicant, and that it could not do so on what had been put before it.  It was for this very reason that the Tribunal told the applicant it was inviting him to a hearing.  In the circumstances, there should be no surprise that the Tribunal ultimately refused the application.

13. I should also note that I agree with the Minister’s submissions that s.424A, which is also part of that procedural code set out in Division 4 of Part 7 of the Act, was not engaged in the circumstances of this case because the reason for the Tribunal’s decision was plainly the lack of information that had been put before it. I agree with the Minister’s reliance on SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 per Allsop J at [29] to [30] and NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] to [5].

14. What plainly needs to be understood in this case is that the Tribunal put the applicant on notice by way of its letter of 24 October 2008 that it was unable to make a favourable decision.  The importance of a hearing was clearly put to the applicant.  The material before the Court shows that he received this letter and that he ultimately chose to follow advice from “someone” in the community not to attend the hearing as against the clear advice provided by the Tribunal. 

15. It is clear that the letter of invitation complied with the relevant statutory requirements. I refer particularly to ss.441A, s.425A of the Act and reg.4.35D(b) of the Migrations Regulations 1994 (Cth). No error is revealed in that aspect of the processes employed by the Tribunal.

16. Nor can I see error in the Tribunal determining the review without a hearing, noting that the hearing had been scheduled for 5 December 2008, and the Tribunal’s decision having been made prior to that date, 28 November 2008.  Nonetheless, as I said, there was no error in the Tribunal proceeding in the way that it did in circumstances where the applicant had consented, pursuant to s.425(2)(b), to the Tribunal proceeding to determine the application without a hearing.

17. Having been informed by the applicant that he did not wish to attend the hearing, and having been informed that he consented to the Tribunal deciding the review without his attendance at a hearing, s.425(3) of the Act was thereby engaged. At that point, the applicant had no entitlement to attend a hearing and, accordingly, there was no need for the Tribunal to go through the “empty form” of holding a hearing or waiting for the “vacated” hearing date to pass (I refer to SZIMG v Minister for Immigration and Citizenship [2008] FCA 368 per Rares J at [21]. See also Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152 [at 64]).

18. As I said earlier, the applicant has put before the Court a complaint that he did not attend the hearing, and that he consented to there being no hearing, because of what he had been told by “someone” in the community who had helped him, and who told him that his application would be refused regardless. 

19. To the extent that this may be said that there was some perception or some understanding by the applicant that there was bias, or the apprehension of bias, on the part of the Tribunal, then such a complaint cannot be sustained in what is before the Court such complaint. With reference to relevant authorities on the issues of bias and the apprehension of bias (in particular, Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425, and Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17) and the circumstances before the Court now, such an allegation simply has no prospect of succeeding.

20. It is also the case (on what has been put before the Court) that what the applicant alleges he was told was not told to him by any registered migration agent.  The applicant himself before the Court today clarified that point in his submissions.  Nor was any notification given to the Tribunal that a migration agent was assisting the applicant, and nor was any authorised recipient appointed by the applicant for the purposes of receiving correspondence from the Tribunal. (See CB 57 and CB 58.) 

21. While it is unfortunate that the applicant chose to follow the advice of this “helper” in the community, there is nothing before the Court now to show that any of these circumstances amount to fraud, or indeed anything close to fraud, such that the circumstances found in SZFDE  v Minister for Immigration and Citizenship [2007] HCA 35 would serve to vitiate the Tribunal’s decision in the applicant’s favour.

22. There is nothing in this regard therefore to assist this applicant before the Court today.  As Ms Baggett, in my view, correctly submitted, what this person told the applicant appears to be nothing more than some vague opinion, rather than any deception preventing him from going to the Tribunal hearing.

23. I note from the Minister’s written submissions (in particular, paragraph [18]), that a reading of the applicant’s application may perhaps include a complaint about the decision by the first respondent’s delegate to refuse the applicant a protection visa (see ground two in the application: “I do not agree with the Department of Immigration …”). I can only agree, in any event, with the Minister’s submissions that this Court does not have jurisdiction to consider the correctness of the delegate’s decision, given the relevant provisions of s.476 of the Act.

Conclusion

1. In all, therefore, the findings made by the Tribunal, including the findings that the applicant’s claim lacked detail, and had therefore not been made out, were open to it on the material before it.  The Tribunal provided reasons for rejecting the applicant’s application.  I cannot find error in the processes employed by the Tribunal, nor in its ultimate conclusion. For the applicant to succeed before the Court today, the Court would need to find such jurisdictional error in the Tribunal’s decision.  I cannot find such error and the application before the Court is therefore dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy        

Date:  27 March 2009

CORRECTIONS

1. Paragraph 17 line 2 – delete “well” insert “with”