SZNLD v Minister for Immigration

[2009] FMCA 672

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLD v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 672

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of RRT affirming decision of a delegate of the Minister not to grant the applicant a protection – applicant is a citizen of the People's Republic of China – applicant claims to be a Falun Gong practitioner – where applicant failed to attend RRT hearing – no jurisdictional error.

Migration Act 1958 (Cth), ss.424A, 425, 425A, 426A

SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 287
NADK of 2002 v Minister for Immigration Multicultural Indigenous Affairs [2002] FCAFC 184
NAVX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 287

Applicant: SZNLD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 845 of 2009

Judgment of: Scarlett FM

Hearing date: 8 July 2009

Date of Last Submission: 8 July 2009

Delivered at: Sydney

Delivered on: 8 July 2009

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 845 of 2009

SZNLD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant is a citizen of China.  She has applied to the Court for a review of a decision of the Refugee Review Tribunal.  On 5 March 2009 the Tribunal affirmed a decision made by a delegate of the Minister for Immigration and Citizenship not to grant the applicant a protection (Class XA) visa.

2. The applicant asks the Court to issue a writ of certiorari quashing the Tribunal decision and to issue a writ of mandamus compelling the Tribunal to re-hear and re-determine the matter according to law.  It has been explained to the applicant that the Court would only make those orders if it were satisfied that the Tribunal decision was affected by jurisdictional error. 

3. The applicant relies on two grounds of review. She claims that the Tribunal failed to comply with the requirements of s.424A of the Migration Act, and she also claims that she was denied procedural fairness because she was denied an opportunity to appear before the Tribunal. She claims that she did not receive the letter inviting her to attend the Tribunal hearing.

4. By way of background, the applicant arrived in Australia on 20 July 2008.  On 29 August she applied for a Protection (Class XA) visa.  In her application for a protection visa she claims that she left China because she is a Falun Dafa practitioner.  She said:

   The Chinese government and authorities still has persecuting the Falun Dafa practitioners since 1999.  This is the reason why I leaved my home country China[1]. 

   [1] See Court Book at page 18

5. In answer to a question in the form as to what she fears may happen to her if she returns to China the applicant said this:

   If I go back to China I do fear something will happen to me, like there are so many Falun Dafa practitioners who were and are persecuted and arrested by the government, the police and the 610 Office.  I think these will happen to me late when I go back to China[2].

   [2] See Court Book at page 19

6. On 22 September 2008 the Department of Immigration and Citizenship wrote to the applicant.  The letter invited her to attend an interview with an officer of the Department.  That interview was scheduled for 12 noon on Friday 24 October.  The applicant did not attend the interview.  On 28 November 2008 a delegate of the Minister wrote to the applicant and advised her that her application for a visa had been refused.  The delegate noted that the applicant did not attend the interview and did not contact the Department to explain why she did not attend.  The delegate noted the letter had not been returned unclaimed by Australia Post.

7. The delegate gave these reasons for refusing the application:

   As the applicant has chosen not to attend an interview to discuss her claims her fear of persecution upon return to China cannot be examined.  Subsequently I cannot be satisfied as to the veracity of the applicant’s claims.  In these circumstances it is not reasonable to be satisfied that the claims that have been made are true claims or that the events occurred for reasons relating to a Convention reason (i.e. her Falun Gong beliefs and practices), or that they occurred as claimed[3].

   [3] See Court Book at page 38

8. The Delegate also noted that the applicant had made claims that were general in nature and that the applicant had not provided evidence to support her claims. 

9. On 6 January 2009 the applicant applied to the Refugee Review Tribunal for review of the Delegate’s decision.  The applicant gave as her address for correspondence an address in an inner suburb of Sydney.  It is the same address that she has used on her application to this Court.  The Tribunal wrote to her on 7 January 2009 acknowledging her application and informing her of what the Tribunal would do next.  The Tribunal wrote to her again on 2 February 2009 inviting her to attend a hearing.  The hearing was scheduled for 5 March 2009[4].

   [4] See Court Book at page 46

10. The Tribunal’s hearing record shows that the applicant did not attend the hearing on 5 March 2009[5].

    [5] See Court Book at page 48

11. The Tribunal made its decision that same day dismissing the application.  A copy of the Tribunal decision record can be found at pp.51-57 of the Court book.  In that decision the Tribunal noted that the applicant had been invited to give oral evidence and present arguments at a hearing on 5 March.  The Tribunal then said:

    The applicant was advised in the letter sent to her designated mailing address that if she did not attend the hearing, and a postponement was not granted, the Tribunal may make a decision on her case without further notice.  No reply was received and the Tribunal’s letter was not returned to the Tribunal.  The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear[6].

    [6] See Court Book at page 54

12. For those reasons the Tribunal exercised its power under s.426A of the Migration Act to make its decision on the review without taking any further action to enable the applicant to appear before it. In its decision record the Tribunal summarised the applicant’s claims made in her application for a protection visa. It noted that the applicant did not attend the interview with the Minister’s delegate on 24 October 2008, and noted that no claims were made in her application to the Tribunal for review.

13. The Tribunal in its findings and reasons found that the applicant was a national of the People’s Republic of China based on her Chinese passport.  The Tribunal made this finding relating to the applicant’s non-attendance at the hearing:

    The right to give oral evidence is an applicant’s to exercise or waive as she chooses and no adverse inference is drawn by the Tribunal from a decision to forego that right.  However, where an applicant does not attend a hearing the Tribunal has only the information contained in the written material before it from which to make its determination[7].

    [7] See Court Book at page 55

14. The Tribunal then noted the applicant’s claim to fear persecution because she was a Falun Dafa practitioner.  However, it noted that her claims were vague and general and that she did not claim that anything had ever happened to her or her family, or her friends in the past, because they were Falun Gong or Falun Dafa practitioners, or for any other Convention related reason.  The Tribunal noted that the applicant had not provided any evidence that she had been a Falun Gong or Falun Dafa practitioner in China. 

15. The Tribunal also noted that the applicant did not claim that she had been practising Falun Gong or Falun Dafa in the nearly seven months that she had been in Australia. The Tribunal was not satisfied that the applicant was a Falun Gong or Falun Dafa practitioner. The Tribunal said:

    In short, given all the above and from the limited and totally unsupported claims made by the applicant the Tribunal is not satisfied that the applicant is a Falun Gong or Falun Dafa practitioner and the Tribunal does not accept this claim.  It follows that the Tribunal does not accept the claims that flow from this, including that she fears something will happen to her because of this if she returns to China as the police and other authorities in China have been persecuting practitioners[8].

    [8] See Court Book at page 56

16. The Tribunal was not satisfied that there was a real chance that the applicant would be subject to serious harm amounting to persecution if she returned to China because she was a Falun Gong or Falun Dafa practitioner, and it noted that she had made no other Convention related claim. Accordingly, the Tribunal found that the applicant was not a refugee and it affirmed the decision not to grant her a protection (Class XA ) visa.

17. In her application the applicant sets out two grounds of review. First, she claims that the Tribunal failed to follow the requirements of s.424A of the Migration Act and, second, she claims that she did not receive the letter inviting her to attend the hearing and, therefore, claims that she was denied procedural fairness because she was denied an opportunity to appear before the Tribunal.

18. The applicant has neither filed an amended application nor a written outline of submissions. She attended Court today and made some oral submissions. In answer to questions from the Bench the applicant confirmed that she had not attended the Tribunal hearing. She said that she had not received any letters from the Tribunal. She said that she only knew that the Tribunal had made a decision in her absence because her friend had told her so. When asked about her claim for breach of s.424A of the Migration Act, the applicant was unable to offer any assistance to the Court.

19. When offered the opportunity to address the Court in support of her claim the applicant told the Court that she wanted a little bit more time to stay in Australia to support her children.  She said that she would like to stay in Australia for one or two years, and she wished to wait until her son had finished his study.  She told the Court that after that she might return to China or that she might stay in Australia, because she liked living in Australia. 

20. The Minister for Immigration and Citizenship relies on an affidavit of Rohan John White solicitor. Mr White’s affidavit annexes a copy of the Refugee Review Tribunal registered post records for 3 February 2009. That was the day after the Tribunal wrote its letter, under s.425 of the Act, inviting the applicant to attend a hearing of the Tribunal. The Tribunal’s registered post record shows that on 3 February 2009 a registered letter was sent to the applicant at the address that she gave to the Tribunal for correspondence.

21. Ms Whittemore, solicitor who appeared for the Minister, submitted that the decision showed no jurisdictional error. In particular she submitted that there was no breach of s.424A of the Migration Act and noted that the applicant in respect to the second ground had not given any explanation as to why she did not receive the Tribunal’s letter, as she claimed. As the Tribunal had issued a valid invitation to a hearing the fact that the applicant did not attend the hearing because she did not receive it was of no legal relevance.

22. There was no error in the Tribunal proceeding to make its decision in the applicant’s absence in accordance with s.426A of the Act. The Tribunal’s rejection of her application was the inevitable consequence of her non-attendance at the hearing. The applicant made no submission in reply.

23. In dealing with the applicant’s first ground she claims that the Tribunal failed to follow the requirements of s.424A of the Migration Act.  In particular she claims that the Tribunal failed to invite her to comment on adverse information and, by failing to do so, denied her procedural fairness.  She claims that the Tribunal relied on information adverse to her without giving her an opportunity to comment on that information.  The applicant was not able to assist the Court as to what was this adverse information that she claimed.  The fact is that there was no adverse information.  The Tribunal refused the application on the basis that the information provided by the applicant was insufficient to satisfy the Tribunal that she was entitled to a visa.

24. It is well established that the word information for the purpose of s.424A does not deal with the Tribunal’s thought processes or determinations, or gaps or details or lack of details, or specificity in evidence, or matters of that nature[9]. In any event the only information that was before the Tribunal was that provided by the applicant. That information does not come under the purview of subsection 424A(1) of the Act because it is specifically excluded by subsection 424A(3)(b) and 424A(3)(ba). The claim of a breach of s.424A of the Migration Act has not been made out and ground one fails.

    [9] See SZBYR v MIAC (2007) 235 ALR 609 at [18]

25. As to the applicant’s second ground, which is a claim that the applicant did not receive the information to the Tribunal hearing, she has provided no details or explanation as to why that should be so. There is evidence before the Court in the affidavit of Rohan John White that the Tribunal did indeed write to the applicant on 3 February 2009 inviting her to a hearing. The hearing was scheduled for 5 March 2009. In my view the Tribunal complied with its obligation under s.425 to invite the applicant to a hearing and the letter inviting the applicant to a hearing complied with the requirement of s.425A of the Act. When the applicant did not attend the hearing, and no explanation was given, the Tribunal was within its rights to decide the application under the power given to it under s.426A of the Migration Act. There is no breach of s.426A of the Act.

26. It is well established that when a Tribunal complies with the requirements of the Act to invite the applicant to a hearing it is of no legal relevance that the applicant did not receive the information, (see NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 269 at [9]). That was a decision of Moore J at first instance. An appeal against Moore J’s decision was dismissed by the Full Court of the Federal Court in NADK of 2002v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184. In that decision Tamberlin, Sackville, Hely JJ held at [16]:

    Accordingly, there is no basis for concluding that the primary Judge was in error in holding that the asserted fact that the applicant was unaware of the RRT’s hearing was of no legal relevance.

27. The Tribunal decision was based on the fact that the applicant, in not attending the hearing had provided inadequate evidence to satisfy the Tribunal that she was entitled to a protection visa.  It is hardly surprising that in the applicant’s absence the Tribunal was not satisfied that she met the requirements for a protection visa.  This is a matter that has been dealt with many times in this Court and in the Federal Court.  In NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 their Honours French, Emmett and Dowsett JJ held at [5]:

    In assessing the adequacy of these reasons 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.

28. Indeed, in the decision under review the inevitable consequence was that the Tribunal did not grant the applicant’s application for review.  It did not fall into jurisdictional error.  The applicant’s second ground of review therefore fails.

29. The applicant is not legally represented. She claims to have had some assistance from a friend, whoever that might be. My own independent reading of the Tribunal decision does not show any breach of any section in Division 4 of Part 7 of the Migration Act. I am satisfied that the Tribunal decision shows no jurisdictional error. Because there is no jurisdictional error the Tribunal decision is a privative clause decision. Under s.474 of the Act privative clause decisions are final and conclusive. They are not subject to orders in the nature of certiorari or mandamus, as the applicant claims. It follows that the application must be dismissed.

30. The applicant has been unsuccessful in her application before the Court.  The solicitor for the Minister now seeks an order for costs in favour of the Minister.  In my view it is appropriate to make a costs order and I intend to do so.  The amount sought is the sum of $3100.  That is, if I may say so, a modest figure in the circumstances and it is significantly below the amount provided by the Federal Magistrate’s Court scale set out in the rules. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  16 July 2009