SZNSN v Minister for Immigration

[2009] FMCA 1193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNSN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1193

MIGRATION – RRT decision – Chinese applicant claiming fear of political persecution – did not attend rescheduled hearing – Tribunal entitled to proceed to make decision – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36(3), 425(1), 425(2)(b), 425A, 426A(1), 427(1)(b), 441A(4)

Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1, (2008) 100 ALD 1
VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant: SZNSN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1578 of 2009

Judgment of: Smith FM

Hearing date: 23 November 2009

Delivered at: Sydney

Delivered on: 23 November 2009

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr R White

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $4,600. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1578 of 2009

SZNSN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in November 2008 with her husband, a national of Taiwan.  She is a national of the People’s Republic of China, and lived with her husband in Taiwan between 2005 and when she came to Australia.  It is uncertain whether their relationship continued after he left Australia about one week after they arrived.  The applicant stayed in Australia, and on 5 December 2008 applied for a protection visa assisted by a registered migration agent. 

2. Brief insertions in the application form explained why the applicant feared to return to the People’s Republic of China.  She referred to her marriage, and claimed:  

   44.Why do you think this will happen to you if you go back? 

   When I was in Taiwan, I became a supporter of Taiwan Independency activity.  Now, my husband does not support Taiwan Independency activity because he has business with China.  He thought my political opinion will be harmful to all of us.  He will separate from me.  I can not return to Taiwan because I do not have ID in Taiwan.  I can not go back to China because I could be treated as a betrayer of the country. 

3. No further details of these claims were provided by the applicant to the Department of Immigration or to the Tribunal.  There was on the file, however, a statement from the applicant’s husband given in relation to the cancellation of his own visa.  This included the statements: 

   The relationship between my wife and I has been affected often since we have different political opinions, and elder members of my family do not understand a Chinese spouse.  I have moved to the countryside to look after my parents because my father’s condition has not been well recently.  As a result, my wife and I have conflicts frequently.  Every time when we talked about it on the trip, we would start a fight.  I therefore gave her A$10,000 to buy flight ticket and let her return to China on her own to calm herself down, while I came back to Taiwan earlier.  No matter where we are, she likes to go out alone to calm herself down after we have an argument.  She will be home in a while. 

4. The delegate made a decision refusing the visa application on 9 February 2009. The delegate noted that the applicant had a resident’s permit for Taiwan, which continued until 21 April 2009. The delegate therefore thought that she had a right to enter and reside in Taiwan, at least on a temporary basis, and that Australia therefore did not owe protection obligations by reason of s.36(3) of the Migration Act 1958 (Cth). The delegate also thought that the applicant’s claims to fear persecution in the People’s Republic of China had been so inadequately presented as to not satisfy the delegate that she had a well‑founded fear of persecution.

5. The applicant appealed to the Refugee Review Tribunal.  Her application did not appoint an authorised recipient or agent, and requested that correspondence should be sent to her at an address in Little Collins Street, Melbourne.  The Tribunal sent to that address on 3 April 2009 an invitation to the applicant to attend a hearing on 7 May 2009 at 9.30 am in Melbourne. 

6. The letter requested that the applicant return a “Response to Hearing Invitation” form to confirm the hearing.  The form was returned to the Tribunal by facsimile on 16 April 2009 at 3.29 pm.  The facsimile carries a signature which purports to be that of the applicant, and which she has not denied in these proceedings.  At the commencement of the form it said:  

Who will take part in the Tribunal hearing?
Please note that if any review applicant selects ‘No’ in response to the following question, the Tribunal may make a decision on the application for review made by that person without taking any further action to allow or enable that person to appear before it.
Will you take part in the Tribunal hearing scheduled for 7 May 2009?  (Please indicate ‘Yes’ or ‘No’ for each review applicant.)
Yes £	No R	Ms [Applicant]

1. On the same day that the Tribunal received this response, but at a time which is unclear, it wrote a letter to the applicant at her address for service with the heading, “Rescheduled Hearing”.  The letter said: 

   I am writing about the application for review made by you in relation to a decision to refuse to grant a Protection (Class XA) visa. 

   On 3 April 2009 we sent a letter inviting you to attend a hearing of the Tribunal on 16 April 2009 to give evidence and present arguments relating to the issues arising in your case.  Due to problems with the original invitation to hearing, the Presiding Member is unable to conduct the hearing on that day.  We regret any inconvenience caused. 

   The new hearing date and time are set out below.  Please note that all other hearing details are unchanged.  … 

2. There is then specified the date 15 May 2009 at 9.30 am at the Tribunal’s address in Melbourne.  The letter said:  

   The Tribunal will only change this hearing date for good reason.  Please contact the Tribunal immediately if you are unable to attend the hearing on this date.  Please note if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it. 

3. The reference in this letter to a hearing invitation for 16 April 2009 is unexplained in the evidence before me. As I have indicated, the copy of the earlier invitation on the file in fact appointed a hearing for 7 May 2009, and not 16 April 2009. This incorrect date reference in the second letter may have arisen due to the mistaken insertion of the date of the second letter, rather than the hearing date as earlier appointed. It is obscure what were the ‘problems’ which caused the Tribunal to reschedule the first hearing. However, in my opinion, both the earlier invitation and the later invitation fully complied with the statutory requirements of a notice of invitation to appear at a hearing offered under s.425(1) of the Migration Act (see ss.425A, 441A(4), and reg.4.35D of the Migration Regulations 1994 (Cth)).

4. No further “Response to Hearing Invitation” was received from the applicant in relation to the second invitation, and the Tribunal received no further contact from the applicant.  She did not attend the rescheduled hearing appointed for 15 May 2009. 

5. The Tribunal then proceeded to make a decision on 4 June 2009. The Tribunal referred to the claims of the applicant, and to her husband’s statement which was on the file. It noted that the applicant’s re‑entry visa to Taiwan had expired, and that it had information from the Taiwan Embassy casting doubt on whether the applicant still had a right of entry to Taiwan. It therefore decided not to apply the provisions of s.36(3).

6. The Tribunal assessed the applicant’s claims concerning her fears of returning to the People’s Republic of China, and referred to them as “lacking in essential detail”.  The Tribunal referred to elements which plainly required further investigation by it, and said: 

   In the absence of more detailed information in respect of these matters or any details in relation to her social background or her activities in support for the independence of Taiwan, the Tribunal is not satisfied that the applicant has suffered harassment and discrimination in the past or that she faces persecution from the PRC government because of her political opinion through her support for the independence of Taiwan.  The Tribunal is also not satisfied that the applicant would be treated as a spy or betrayer or that she would, as a consequence, be arrested or punished by the PRC authorities. 

7. The Tribunal concluded that it was not satisfied that she was a person to whom Australia had protection obligations under the Refugees Convention. 

8. The applicant has applied to this Court to set aside the Tribunal’s decision and to remit the matter.  I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have power myself to decide whether the applicant qualifies for a protection visa or should be given any permission to stay in Australia. 

9. The applicant’s original application contained one ground: 

   The hearing arrangement of Refugee Review Tribunal was confusing. 

10. The applicant’s affidavit in support said: 

    The Refugee Review Tribunal sent me a letter for hearing at 7 May 2009 on 3 April.  Then the Tribunal sent me another letter for hearing at 15 May 2009 on 16 April.  But in the second letter it said the hearing was on 16 April.  It was very confusing.  I did not understand which date is the hearing. 

11. The applicant has not presented further sworn evidence nor an amended application nor written submissions.  She was represented by counsel at the first court date, and has also received advice under the free legal scheme, however she was not represented at today’s hearing. 

12. The Minister’s representative did not seek to cross‑examine the applicant on her affidavit. However, in my opinion, the letter rescheduling the hearing for 15 May 2009 was not a relevantly confusing letter. It did not, in fact, appoint 16 April 2009 as the rescheduled hearing date. It was not confusing as to the time and place for the rescheduled hearing to which the applicant was invited. Nor for that matter was its earlier invitation. Both of these did comply with the requirements of the Migration Act.

13. The stated reason for the rescheduling given in the second letter might have been obscure and the letter might have revealed a mistake about the original hearing date appointed in the first letter, but I do not consider that any person receiving the second letter could have been left in any reasonable doubt that the Tribunal had implicitly withdrawn its earlier invitation and was inviting the applicant to a rescheduled hearing for 15 May 2009.  I therefore do not accept that the mistaken reference to 16 April 2009 supports the claim made in the documents filed by the applicant, that she was confused by the second letter as to the time for the rescheduled hearing which it was appointing. 

14. Moreover, in circumstances where the applicant had already decided that she would not attend the earlier appointed hearing, actually appointed for 7 May 2009, I have difficulty accepting the assertion of the applicant that: “I did not understand which date is the hearing”.  The assertion suggests that she intended to attend the first hearing and would have done so if she had not received the ‘confusing’ second letter.  It is inconsistent with her documented intention not to attend the first hearing, which must have been transmitted before she received the second letter.  In my opinion, therefore, she could at no time have been confused about the date for either the first hearing before it was rescheduled, nor about the date for the rescheduled hearing. 

15. The applicant today in her oral submissions gave an explanation for her absence from the rescheduled hearing due to ‘confusion’, which did not contend that the second letter contained any confusing statements.  She said that she had a bad cold at the time that she showed the letter of 16 April 2009 to a friend, and that the friend “did not explain the letter properly”.  Exactly what she thought her friend had told her was in the letter was unclear from her unsworn statements. 

16. In any event, on authorities which are well established, the fact that the applicant might not have attended a hearing which was appointed in accordance with the statutory requirements, because of a confusion about the time, is not an answer to the Tribunal’s exercise of its power to proceed in her absence under s.426A(1) (see VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [16], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12], and SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1, (2008) 100 ALD 1 at [29]).

17. Whatever the reasons for the applicant’s non‑attendance on 15 May 2009, in my opinion, she was given a formally valid notice of an invitation to that hearing for the purpose of ss.425A and 426A(1), upon the basis that the Tribunal effectively withdrew its earlier invitation. Alternatively, if the first invitation is regarded as the first and valid invitation under s.425A, the Tribunal was obliged in its rescheduling letter only to appoint a ‘reasonable’ date for rescheduling the hearing, without observing any other formalities (see Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572 at [82]). On that basis, the letter of 16 April 2009, in my opinion, did give reasonable notice of a rescheduled hearing.

18. On either view of the rescheduling letter, in my opinion, the Tribunal was entitled to proceed to make a decision without taking any further action to invite the applicant to appear, whether its power to do so is located in s.426A(1), or under the Tribunal’s general powers under s.427(1)(b) and its obligation to make a decision in the review after having invited the applicant to attend a hearing.

19. I note that the Tribunal did not rely upon the applicant’s response to the first hearing invitation, by deciding that it revealed a consent generally by the applicant to a decision being made without her attendance at a hearing (see s.425(2)(b) and SZFML (supra) at [60]‑[62]). In my opinion, this reflected no error of procedure adverse to the applicant’s rights under the Migration Act. In circumstances where the consent appeared to be confined to the first appointed hearing, and where the Tribunal probably decided to reschedule that hearing before receiving the consent, it was appropriate for the Tribunal not to make a decision until the applicant had been given an opportunity to appear at the rescheduled hearing.

20. The Tribunal gave the applicant that opportunity to attend, and I do not accept that its decision to proceed to make a decision when she did not attend, was affected by any jurisdictional error. 

21. The applicant does not challenge the reasons of the Tribunal for affirming the delegate’s decision, and its reasoning appears clearly to have been open to it on the material before it. 

22. For the above reasons, I consider that the Tribunal’s decision was unaffected by jurisdictional error.  It is therefore a privative clause decision, and I must dismiss the application. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  7 December 2009