SZNEA v Minister for Immigration and Anor (No.2)

[2009] FMCA 275

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNEA v MINISTER FOR IMMIGRATION & ANOR (No.2) [2009] FMCA 275

MIGRATION – Application for reinstatement – application for review of the decision of the Refugee Review Tribunal – no reasonable prospect of success – Tribunal not obliged to enquire as to non-appearance of an applicant – no failure to accord procedural fairness – no reasonable apprehension of bias – no jurisdictional error on the part of the Tribunal – application dismissed.

Migration Act 1958 (Cth), ss.426A, 425, 425A, 441A, 441C
Migration Regulations 1994 (Cth), reg.4.35D(b)
Federal Magistrates Court Rules 2001 (Cth), r.1303C(c)

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439
NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592
NBBL v Minister for Immigration and Multicultural Affairs [2007] HCATrans 511
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
SZEGZ v Minister for Immigration and Multicultural Affairs [2005] FCA 999
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Abebe v The Commonwealth (1999) 197 CLR 510
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401; [2007] HCA 35

Applicant: SZNEA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 108 of 2009

Judgment of: Nicholls FM

Hearing date: 1 April 2009

Date of Last Submission: 1 April 2009

Delivered at: Sydney

Delivered on: 1 April 2009

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Appearance for the Respondents: Ms J Dinihan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 25 March 2009 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 108 of 2009

SZNEA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 25 March 2009 in effect seeking that the Court set aside orders made on 13 March 2009 which dismissed an application made under the Migration Act 1958 (Cth) (“the Act”) on 16 January 2009 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 17 December 2008, which affirmed a decision of the delegate of the first respondent to refuse the grant of a protection visa to the applicant.

2. The brief relevant and recent history of this matter is that the applicant appeared before this Court on 4 February 2009 at the first Court date. He appeared in person and was assisted by an interpreter in the Mandarin language.  Amongst other things, an order was made setting this matter down for final hearing on 6 March 2009. Subsequently, the Court was not able to hear the matter on that date. I note the respondent’s “exhibit 1” (“RE 1”), being a letter dated 2 March 2009 sent to the applicant at the address for service notifying the applicant that his matter had been relisted for final hearing on 13 March 2009 at 9.30am.  On that date there was no appearance by the applicant and the application was dismissed pursuant to r.l3.03C(c) of the Federal Magistrates Court Rules2001. 

3. At the hearing before the Court today the applicant appeared in person and was assisted by an interpreter in the Mandarin language.  Ms Dinihan appeared for the first respondent.

4. The applicant now seeks to reinstate the application and has explained to the Court that his reason for not attending on that rescheduled date was that he had been told in error by a friend who had translated the letter for him that the hearing was to be held on 17 March 2009, and not 13 March 2009. Therefore he was “surprised” to subsequently learn from the friend that he had missed the date for the final hearing of his matter.

5. Ms Dinihan, who appeared for the first respondent, opposed the application to set aside the orders made on 13 March 2009, and in effect reinstate the applicant’s original application. Ms Dinihan’s submissions were that it is for an applicant to take responsibility to ensure that any correspondence is properly translated, that a reasonable time for the applicant to obtain an accurate interpretation, that is, approximately 10 days, had been available to him before the rescheduled final hearing, and that a mistake made by a friend was not in all the circumstances a sufficient excuse. 

6. I have some difficulties in accepting the applicant’s application to set aside the orders based on the explanation provided for his failure to attend at Court on the previous occasion. I agree with submissions made on behalf of the first respondent. 

7. But notwithstanding that I felt compelled to examine all of the material that had been put before the Court in the original application made to this Court by the applicant on 16 January 2009 to see if, in any event, the application had any reasonable prospect of success. 

8. Having considered all the material and having listened carefully to what the applicant has said to the Court today, even if I were to accept the applicant’s explanation for his failure to attend Court on the previous occasion, I cannot see that there would be any useful purpose, that there would be any utility, in setting the matter down for final hearing. On the material that is before the Court, and taking into account the opportunity provided to the applicant today to put to the Court what he said were the errors committed by the Tribunal, I cannot see that the Tribunal’s decision is affected by jurisdictional error, let alone that there is any reasonable prospect of success such that the interests of justice would be served in allowing the matter to proceed further from today. 

9. Having regard to the circumstances in which the Tribunal arrived at, and made its decision, I note that the first respondent has put before this Court a bundle of relevant documents.  I will refer to this bundle of documents as the Court Book (“CB”).  The following background may be ascertained:

   1)The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 4 July 2008. 

   2)He applied for a protection visa on 1 August 2008. This application is reproduced at CB 1 to CB 29. 

   3)On 7 October 2008 a delegate of the first respondent refused the application for a protection visa (CB 37 to CB 47). 

   4)On 31 October 2008 the applicant applied to the Tribunal for review of the delegate’s decision (CB 52 to CB 55). 

   5)On 3 November 2008 the Tribunal wrote to the applicant by letter sent by registered post, and addressed to the address for service that had been provided by the applicant to the Tribunal.  The letter notified the applicant of the process by which it would conduct the review.  I note, importantly, that the Tribunal’s letter put the applicant on notice of the importance of attending at a hearing if he were to be invited to do so (CB 56).  

   6)On 17 November 2008 the Tribunal sent a second letter to the applicant, again addressed to the address that he had provided for receiving correspondence, inviting him to appear before the Tribunal at a hearing. This letter enclosed, amongst other things, a “Response to Hearing Invitation” form. The applicant did not respond to the Tribunal’s invitation, nor was the letter returned unclaimed to the Tribunal (CB 59). 

   7)At the scheduled time for the hearing, which was 16 December 2008, the applicant did not appear. The Tribunal then proceeded to make a decision on the application for review pursuant to s.426A of the Act on the evidence available to it without taking any further action to enable the applicant to appear before it (CB 65 and CB 74).

10. The Tribunal had before it the applicant’s claims to be a practitioner of Falun Gong in China since 1998. He also claimed that after Falun Gong had been banned in July 1999 he was required to report to the police where he was threatened, and forced to write what he described to be “reports”, and to read certain reading materials given to him by the police. As a result of this, he said that he had lied to police, promising that he would no longer practice Falun Gong, but despite this, he continued to do so. The applicant also claimed that he had been dismissed by his employer on the ground that he was suspected of practising Falun Gong. He claimed that in early 2008 he was “found” to have practised Falun Gong, and thereafter left China to secure his safety.

11. The Tribunal found that the application for the protection visa contained what were described as a number of “vague”, “unsubstantiated” assertions. It found that on the material before it, it was not able to establish the basic facts of the applicant’s claims and had no opportunity to assess the veracity of those claims and to consider whether those claims formed the basis for a well-founded fear of Convention-related persecution. 

12. The Tribunal identified four matters arising from the applicant’s claims about which it said it had insufficient information:

    1)The applicant’s claimed adherence to Falun Gong. 

    2)The applicant’s claimed adverse attention from Chinese authorities.

    3)Matters ancillary to the applicant’s claimed Falun Gong practice, including the circumstances of his dismissal from work, the discovery of his claimed practice of Falun Gong, and the obstacles he faced in obtaining a passport and visa. 

    4)The applicant’s fears upon return to China.

13. The Tribunal found that it was unable to be satisfied that the applicant was a Falun Gong practitioner, that he had suffered harm on this or any other basis or that the Chinese authorities had any adverse interest in him. The Tribunal affirmed the decision under review on the basis of what it said was the limited evidence before it, which, without further details and clarifications, was insufficient to satisfy the Tribunal that the applicant was a person to whom Australia owed protection obligations.

14. The original application to the Court puts forward the following as the grounds of review:

    “1.RRT did not make fair decision.  I am in risk to return to China.  I did not know much about RRT procedure.  I was advised by friends that RRT just refused applicants wheather [sic] you provide evidence or not.  Later I realised that I should go for hearing.  But I lost chance.  RRT did not give me another chance. 

    2.Procedural Fairness has been denied.  I am Falun Gong practitioner.  I would be persecuted and put into gaol if I returned to China.  RRT failed to consider my risk to return to China.”

15. In essence, therefore, I understood the applicant to raise the following complaints about the Tribunal decision: 

    1)The Tribunal decision was not a “fair” decision because the Tribunal did not give him another chance to attend the hearing.

    2)His friends gave him reason to believe that he would not be successful before the Tribunal whether or not he provided evidence to the Tribunal in support of his claims.  In essence, this may be a complaint of some apprehension of bias.  Therefore he lost the chance to appear before the Tribunal because apparently he accepted the advice of friends that he would not be successful. 

    3)He was denied procedural fairness before the Tribunal.

    4)The Tribunal failed to consider the risk of harm the applicant would face if returned to China.

16. The applicant’s submission to the Court today appears to contradict to some extent, the complaint set out in the application made to the Court.  In particular, as to the reason why the applicant failed to attend the Tribunal hearing. Before the Court today the applicant stated that he had come to Australia to seek political asylum because he was a Falun Gong practitioner. He told the Court that there had been some issue relating to permission to work in Australia, but that, nonetheless he, in company with some other Chinese friends, found work presumably on a building site doing “gyprocking”. He had to make a living and that this required him to work outside of Sydney.  

17. He said that when he returned to Sydney, presumably at least not before late December 2008, he found that he had received a number of letters both from the first respondent’s Department and, relevantly, from the Tribunal.  He found someone to translate these letters and found that the date for the hearing before the Tribunal, that is, 16 December 2008, had already passed.  The applicant submitted to the Court that the Tribunal had an obligation to have telephoned him at least the day before the hearing to tell him of the hearing and that, in any event, the Tribunal had underestimated the risk to him if he were to be sent back to China. 

18. Looking first at the complaints as they are said to arise from the application put before the Court, the applicant complains that the Tribunal decision was not a fair decision.  I understood this, in context, to be because the Tribunal did not give him the opportunity of another hearing date.  Based on what the applicant told the Court today, this includes a complaint that the Tribunal failed to give him adequate notice of the time and date of the hearing, that is, by “not ringing [telephoning]” him the day before. 

19. Seeking to separate all the threads from the applicant’s complaint, it would appear that in the first instance the applicant complains that he was denied procedural fairness and at least should have been given either a proper opportunity to attend, or the opportunity of another hearing. 

20. I note in this regard that this is a case to which s.422B of the Act applies which provides that Division 4 of Part 7 of the Act is taken to be the exhaustive statement of the requirements of the natural justice hearing rule (of course absent bias) in relation to review applications before the Tribunal (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]).

21. Pursuant to s.425 of the Act, which is a part of Division 4, the Tribunal is obliged, unless certain circumstances are found to exist, to invite an applicant to attend a hearing before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. In particular, the Tribunal is obliged to do this where it considers that it cannot make a decision favourable to the applicant on the basis of the material that has been put before it.

22. For the sake of completeness, I note the provisions of s.425A of the Act and the requirement that the Tribunal be sent a letter consistent with that section. The letter must be sent by one of the methods specified in s.441A. The period of notice must be at least the prescribed period (see in this regard s.425A(3)), and that s.441A(4) permits notice to be given to the applicant via prepaid post, and that such notice must be dispatched to the applicant’s last address for service provided to the Tribunal, or to the applicant’s last residential or business address. The provisions of s.441C of the Act provide that the applicant is taken to have received the letter so dispatched seven working days after the date of the letter. The prescribed period for the purposes of s.425A of the Act is set out in reg.4.35D(b) of the Migration Regulations1994. 

23. The Tribunal wrote to the applicant by letter dated 17 November 2008. I am satisfied on the material before the Court that the letter was sent to the address for service. The letter advised the applicant that the Tribunal was unable to make a favourable decision and invited the applicant to attend a hearing. The Tribunal enclosed a “Response to Hearing Invitation” form with this letter. On the material before the Court. I am satisfied that the applicant was invited to attend the hearing in compliance with the requirements set out in the Act. I note again that nothing was put before the Tribunal to disabuse the Tribunal of any notion that the applicant had not received the letter.

24. As I said to the applicant this morning, where the Tribunal has complied with all of the requirements relevantly set out in the Act it is not obliged to make any further enquiries as to why the applicant did not appear before it. It is not obliged, once having complied with the procedural fairness requirements set out in the Act, to make any further attempt prior to the hearing to notify the applicant of the hearing date. For relevant authority on this proposition I refer to Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39], [41] per Spender, French and Cowdroy JJ, NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 at [20]-[22], per Greenwood J (special leave to appeal refused: NBBL v Minister for Immigration and Multicultural Affairs [2007] HCATrans 511, per Hayne and Crennan JJ).

25. It is quite clear that in the present case the Tribunal complied with the statutory requirements which are the embodiment of the natural justice hearing rule for the purposes of this case.  I cannot, therefore, see error in this regard. 

26. Where the Tribunal therefore has complied with these requirements the Tribunal is empowered by s.426A of the Act to elect to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. It is by now well-established that where an applicant has been invited to attend a hearing, and the Tribunal has indicated to the applicant that it was unable to find in his or her favour on the basis of material before it, and has therefore invited the applicant to attend to give oral evidence and present arguments, and the applicant fails to appear at the scheduled hearing, rejection of the application can often be seen as the “inevitable consequence” (NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (“NAVX”) at [5], per French, Emmett and Dowsett JJ, SZEGZ v Minister for Immigration and Multicultural Affairs [2005] FCA 999 at [16]-[17], per Conti J).

27. The applicant appeared to resile from what is contained in his application as to the reason for not attending the Tribunal hearing.  But even if he was advised by friends that it was useless to attend the Tribunal hearing, he was on notice following the delegate’s decision (which clearly he did receive prior to making the application for review to the Tribunal), and had he taken steps to have adequately translated at the appropriate time the Tribunal’s letters of 3 November 2008 and 17 November 2008, of the utmost importance of attending the hearing. 

1. The applicant was invited to attend an interview before the Minister’s delegate. He did not respond to this invitation, nor did he attend (CB 45). The delegate found that the applicant had provided extremely little detail, and was therefore unable to test the assertions made by the applicant. For this reason, the delegate was unable to reach the requisite level of satisfaction such that a protection visa could be granted. Nonetheless, in spite of a failure to attend an interview, before the delegate, which clearly led to the rejection of the protection visa application, the applicant put himself in a similar position before the Tribunal by taking no responsibility to ensure (even if I were to accept what he has told the Court today that he was working outside of Sydney) that the Tribunal knew of any other address to which correspondence should be forwarded. Nor did he take any steps to ensure that any correspondence from the Tribunal sent to the address for service would otherwise reach him. As I said to the applicant today, the Tribunal complied with its responsibilities and obligations.  It was for the applicant to have taken steps to have ensured that relevant correspondence would have reached him.

2. To the extent that there is a complaint that the Tribunal’s decision was unfair in terms of its outcome, in all the circumstances this does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (citing Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J), and at 291 per Kirby J, Abebe v The Commonwealth (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ).

3. The Tribunal found that the applicant’s claims to protection contained a number of vague, unsubstantiated assertions. It found that on the material contained in the protection visa application, which was the only material before the Tribunal, it could not establish the basic facts of the applicant’s claims, nor could it assess their veracity, nor consider whether the claims formed the basis for a well-founded fear of persecution for a Convention reason. 

4. It was precisely because of the limited evidence before the Tribunal, noting that this was the same reason that the delegate could not be satisfied such that the protection visa should be granted, that the Tribunal similarly could not be satisfied the applicant was a Falun Gong practitioner who had suffered harm in China as he had claimed at the hands of the authorities. The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations.  The Tribunal is not obliged to accept at face value claims which are expressed in brief and vague terms and which are devoid of detail (see, in particular, NAVX). Nor is it required to uncritically accept an applicant’s claims (see Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451). On the limited evidence before it, it was open to the Tribunal to find that it was not satisfied as to each of the applicant’s claims and that ultimately it was not satisfied that the applicant was a person to whom Australia owed protection obligations. In this regard see, in particular Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ.

5. In the written application to the Court the applicant complains that his friends gave him reason to believe he would not be successful before the Tribunal.  While the applicant appears to have now presented a different explanation for his failure to attend, nonetheless if this constitutes some complaint of apprehension of bias, or an expectation of bias, on the part of the Tribunal, then I note that with reference to relevant tests for both these matters, namely whether the decision-maker brings an impartial mind to the resolution of the question to be decided (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at 434-435), or is perceived not to have done so (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]-[44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 (“VFAB”)), there is no evidence before the Court to sustain any such complaints.  I note in particular that bias is not established simply by the Tribunal reaching a preliminary view, as was expressed in its letter of 17 November 2008 (see, in particular, VFAB). 

6. Further, if the applicant may be taken to complain that some third party deprived him of the opportunity to appear before the Tribunal, there is no evidence before the Court such that it could be said that there was fraud, or some other dishonest conduct, as was the situation found before, ultimately, the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401; [2007] HCA 35.

7. The applicant also complains that the Tribunal failed to consider the risk of harm he would face if he returned to China. This complaint is not particularised in the application. Beyond repeating the assertion today, the applicant failed to provide any further particularity to this complaint. 

8. This complaint has no reasonable prospect of success.  The Tribunal very clearly did turn its mind to the issue of whether the applicant would face harm if he were to return to China.  For the reason that it gave (lack of evidence and detail), the Tribunal was unable to reach the requisite level of satisfaction that the applicant was a person to whom Australia owed protection obligations.

Conclusion

1. I have some difficulty in accepting the applicant’s explanation as being adequate in explaining the failure to attend the previous Court date when orders were made dismissing the application for non-appearance. 

2. But even if I were to accept that explanation, I cannot see that any useful purpose would be served in allowing the matter to proceed beyond today. The only way that the original application could succeed is if the Court were ultimately able to discern jurisdictional error on the part of the Tribunal. None of the applicant’s grounds, nor do his complaints, have any reasonable prospect of success. Whatever the circumstances of his failure to attend the hearing before the Tribunal, the Tribunal complied with its obligations to invite the applicant to a hearing. For whatever reason he did not attend. The Tribunal could not be satisfied that he had a well-founded fear of Convention-related persecution. Nothing the applicant has put to the Court, despite opportunity, reveals error on the part of the Tribunal, or any reasonable prospect that such error may be revealed at a further hearing.

3. On what is before the Court I cannot discern such error, and as the application therefore does not have any reasonable prospect of success, I will make orders dismissing the application made on 25 March 2009 seeking reinstatement of the original application before the Court. For the sake of completeness, and in particular for the applicant’s benefit, that means that the dismissal of the original application to the Court stands.

4. It is appropriate that a further order for costs be made in this matter.  I accept that the applicant says that he did not think about the financial implications of making his application to the Court, but that is not a sufficient reason such that an order for costs should not be made.  As to the amount, I note that the amount sought is an amount to cover work done since the making of my previous orders, which still stand.  I am satisfied in all the circumstances, having regard to what has been done in responding to the present application, that the amount sought is a reasonable amount, and I will make the order in the amount sought. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of FM Nicholls FM

Associate:  A Douglas-Baker

Date:  6 April 2009