SZNDG v Minister for Immigration
[2009] FMCA 476
•19 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNDG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 476 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal properly exercised its discretion under s.426A of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 425; 425A; 425A(1); 425A(4); 426A; 441A(4)(a); 441A(4)(b); 441A(4)(c); 441C(4)(a); 474; pt.8 div.2 Migration Regulations 1994 (Cth), reg.4.35D |
| SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 |
| Applicant: | SZNDG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 49 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 19 May 2009 |
| Date of last submission: | 19 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2009 |
REPRESENTATION
| Applicant appeared in person assisted by a Cantonese interpreter |
| Solicitors for the Respondent: | Ms N. Johnson, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 49 of 2009
| SZNDG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
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) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 December 2008 and handed down that same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”), the son of a previous member of the China Communist Party (“the CCP”) and father to a Chinese student studying in Australia (“the Applicant”).
The Applicant arrived in Australia on 17 March 2008 having departed legally from Shekou on a passport issued in his own name and a TR subclass 676 visa issued on 5 March 2008.
On 30 April 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 29 July 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 1 September 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 2 December 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 8 January 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’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 political 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 persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of his protection visa application. The Applicant stated that he feared persecution by Chinese authorities because of his participation in the student movement in China in 1989, resulting in the loss of his job. The Applicant also claimed that his father was the director of the news department in the local government and his employment was terminated in 2006 because of his pro-Falun Gong sentiments. The Applicant claimed that his father was a member of the CCP. The Applicant claimed that, after arriving in Australia, he signed his father’s name in an announcement quitting the CCP. The Applicant claimed that he had participated in some protests in Sydney and that he would suffer persecution in China because of his activities here.
The Delegate’s decision
On 29 July 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate noted that the Applicant did not provide “any documentary evidence whatsoever and little detail in respect of his particular claims”. The Delegate found the Applicant’s claims to be “scant” and “lacking in veracity and credibility”.
The Tribunal’s review and decision
On 1 September 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of his review application.
On 17 September 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter purported to be an invitation pursuant to s.425 of the Act, inviting the Applicant to attend a hearing on 15 October 2008 to give oral evidence and present arguments. The Tribunal’s letter of invitation was addressed to the Applicant at the only address provided by the Applicant to the Tribunal. The letter was returned to the Tribunal marked ‘unclaimed’ on 22 October 2008.
The Tribunal noted in its decision record that it had sent the Applicant a letter of invitation to come to a hearing to present arguments and make submissions by registered post. The Tribunal noted that the Applicant did not respond to the letter and did not appear at the hearing. The Tribunal noted that the letter was sent to the Applicant at the only address provided by him to the Tribunal and was returned to the Tribunal marked ‘unclaimed’ on 23 October 2008. The Tribunal noted that there was no documentation on file to suggest that the Applicant had attempted to make contact with the Tribunal prior to the hearing. Neither was there any record on file of the Applicant making contact with the Tribunal to seek an adjournment or to offer an explanation for his absence at the hearing. In the circumstances, the Tribunal purported to exercise its discretion under s.426A of the Act to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.
The Tribunal noted in detail the Applicant’s written claims made in support of his protection visa. However, the Tribunal found the claims to be vague and lacking in detail. The Tribunal noted that it had intended to explore with the Applicant at a hearing additional details of his experiences and activities with the student movement, the details surrounding the loss of his job and his inability to gain another position. The Tribunal noted that it had also wished to explore with the Applicant the relevance of his father’s experiences and the Applicant’s concerns regarding his anti-CCP activities in Australia.
However, the Tribunal was not satisfied on the material before it of the veracity of any of the Applicant’s claims and, accordingly, was not satisfied that the Applicant had a well-founded fear of persecution for a Convention-related reason if he were to return to China. The Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Cantonese interpreter.
On 3 March 2009, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At the directions hearing, the Court explained to the Applicant that it had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake that goes to the jurisdiction of the Tribunal.
At the directions hearing, the Applicant was given an opportunity to participate in the Court’s legal advice scheme.
At the directions hearing, the Court also provided to the Applicant a copy of the applicable costs schedule of the Court and explained to the Applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remains unpaid it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. The Court then confirmed with the Applicant that he wished to continue with his application for judicial review of the Tribunal’s decision.
No further application, evidence or submissions were filed by or on behalf of the Applicant in accordance with the directions, or otherwise.
At the commencement of the hearing, before this Court, the Applicant confirmed that he had no other documents or evidence to provide to this Court in support of his grounds.
The Applicant confirmed that he relied on the ground contained in the application filed on 8 January 2009. The ground of the application is expressed as follows:
“1. The Tribunal’s decision was affected by jurisdictional error.
Particulars:
I was not given an opportity (sic) to appear before the Tribunal. I have never received the hearing invitation letter. The decision record shows that the registered mail was returned to the Tribunal unclaimed.”
The ground was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support the ground and in support of his application generally. The Court explained to the Applicant that there is a legislative scheme that obliges the Tribunal to invite the Applicant to come to a hearing to present arguments and give oral evidence. The Court informed the Applicant that, under the legislative scheme, the letter of invitation must be sent to the Applicant within three days of the date of the letter and must be addressed to the Applicant at the last address for service or the last residential address provided by the Applicant to the Tribunal.
In accordance with s.425A of the Act, the letter of invitation must give the Applicant the time and place at which the Applicant is scheduled to appear. The notice period for the hearing must be at least 14 days after the Applicant is deemed to have received the letter of invitation, being seven days after the date of the letter. The letter of invitation must also contain a statement to the effect of s.426A of the Act.
The First Respondent read the affidavit of Katherine Elizabeth Whittemore, sworn 27 February 2009, which attached a copy of the registered post record of the letter of invitation dated 17 September 2008, sent to the Applicant at his residential address. The registered post record contains a registered post item number which corresponds to the registered post item number on the copy of the letter of invitation. The registered post record is signed and dated 17 September 2008. The evidence before this Court, as contained in the Court Book, marked Exhibit 1R, is that the Tribunal’s letter was sent on 17 September 2008. In the circumstances, the overwhelming inference which I draw is that the letter of invitation was posted to the Applicant on 17 September 2008.
A fair reading of the Tribunal’s letter of invitation, dated 17 September 2008, makes clear that each of the statutory criteria was complied with as follows:
a)The letter of invitation was dated 17 September 2008. The letter was sent to the Applicant on 17 September 2008. It was therefore sent within three days of the date of the letter, thereby satisfying s.441A(4)(a) of the Act.
b)The letter was sent by prepaid post to the Applicant at the last residential address provided by the Applicant to the Tribunal, being the only address provided by the Applicant to the Tribunal, thereby satisfying ss.441A(4)(b) and 441A(4)(c) of the Act.
c)The letter informed the Applicant of the date, time and place at which the Applicant was scheduled to appear and contained a statement to the effect of s.426A of the Act, thereby satisfying ss.425A(1) and 425A(4) of the Act.
d)The letter provided for the prescribed period of notice for the hearing, being 14 days after the letter is deemed to have been received by the Applicant, thereby satisfying regulation 4.35D of the Migration Regulations 1994 (Cth) and s.441C(4)(a) of the Act.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal satisfied itself that the letter to the Applicant was sent to the correct address by registered post on 18 September 2008 and returned to the Tribunal marked ‘unclaimed’ on 23 October 2008. On the evidence before this Court, the Tribunal’s letter was sent on 17 September 2008. Even if the Tribunal’s decision record incorrectly had the date 18 September 2008, instead of 17 September 2008, as the date upon which the letter was sent, such error is not a legal mistake going to the Tribunal’s jurisdiction.
A fair reading of the Tribunal’s decision record makes clear that, prior to exercising its discretion under s.426A of the Act, the Tribunal satisfied itself that there had been no contact made by the Applicant with the Tribunal to seek an adjournment or otherwise.
In the circumstances, it was open to the Tribunal to decide to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it. Accordingly, the Tribunal properly exercised its discretion to make its decision on the review in accordance with s.426A of the Act.
A fair reading of the Tribunal’s decision record makes clear that, in affirming the decision under review, the Tribunal had regard to the only material before it in support of the Applicant’s claims. A fair reading of the Tribunal’s decision record makes clear that the Tribunal was not satisfied about the Applicant’s claims and gave examples of those claims which it intended to have explored with the Applicant at the hearing, and which are referred to above in these Reasons at paragraph 20.
The Tribunal found the Applicant’s claims to be vague and lacking in detail and insufficient to satisfy the Tribunal that the Applicant met the criteria for being a refugee. It is for the Applicant to satisfy the Tribunal that he meets the relevant criteria for a protection visa. If the Tribunal, as the relevant decision-maker, is not so satisfied then, pursuant to s.65(1) of the Act, the Applicant must be refused a protection visa.
A fair reading of the Tribunal’s decision record makes clear that it was only information provided by the Applicant to which the Tribunal had regard in affirming the decision under review. In the circumstances, there was no information that enlivened the obligations of s.424A(1) of the Act.
Moreover, the Tribunal’s evaluation and thought processes of the material before it are not information that enliven any obligation on the part of the Tribunal to give to the Applicant for comment (SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon, and Crennan JJ).
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant. The Tribunal made findings based on the material before it. Those findings were open to the Tribunal on the material before it and for the reasons it gave. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it, to which it applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
Accordingly, the ground of the application is not made out.
Conclusion
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 proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 19 May 2009
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