SZOOW v Minister for Immigration & Anor

[2010] FMCA 960

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOOW v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 960

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China because of the Chinese one child policy – applicant failed to attend Tribunal hearing – Tribunal unable to make a favourable decision – no reviewable error found – application dismissed.

LAW REFORM – Applicant in Australia for almost a decade between the decision of the delegate and the application to the Tribunal – applicant assisted in his review application and his application to the Court by a friend – observations on the need for a more robust process for making protection visa applications.

Migration Act 1958 (Cth), ss.36, 65, 425, 426A, 474

NAGV and NAGW of 2002 v Minister for Immigration (2005) 222 CLR 161
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZBKB v Minister for Immigration [2005] FMCA 719
SZLPU v Minister for Immigration & Anor [2008] FMCA 890
SZMEM v Minister for Immigration & Anor [2008] FMCA 1286

Applicant: SZOOW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1822 of 2010

Judgment of: Driver FM

Hearing dates: 15 November, 8 December 2010

Delivered at: Sydney

Delivered on: 8 December 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr G Johnson
DLA Phillips Fox

ORDERS

1. The Court directs that the name of the applicant is not to appear on the transcript of proceedings.

2. The application filed on 19 August 2010 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1822 of 2010

SZOOW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 20 July 2010. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon the Chinese one child policy. The following statement of background facts relating to the applicant’s claims and the consideration of them by the Minister’s Department and the Tribunal is derived from the Minister’s submissions filed on 8 November 2010.

2. The applicant is a male citizen of China born on 23 August 1970. He arrived in Australia on 12 July 1998, and applied for a Protection (Class XA) visa on 14 March 2001. The applicant's claims were set out in a statement accompanying the application.[1]

   [1] Court Book “CB” 24-5.

The applicant's claims

1. The applicant claimed to fear persecution in China as he would be forced to undergo a sterilisation procedure and he would “get other crime like ‘traitor’ or other too”.

2. The applicant claimed he had to run away to Australia when his wife was pregnant with their second child (a son born in January 1999). His wife was forced to undergo a sterilisation procedure after their son was born, and his parents had to go to re-education every day.

Notification of decision to refuse protection visa

1. On 18 April 2001, a delegate of the Minister decided to refuse the application and sent a letter notifying the applicant on the same date.[2]

   a)The notification was “returned to sender”.[3]

   b)On 2 November 2009[4] and 12 February 2010[5], the applicant wrote to the Department, indicating he was unaware of the adverse decision. He sought a second opportunity for review of the decision.

   c)On 25 March 2010, the Department wrote to the applicant accepting that he was not properly notified of the decision made on 18 April 2001.[6] The applicant was re-sent the refusal decision by letter dated 25 March 2010.[7] The applicant applied to the Tribunal for review of the delegate's decision on 13 April 2010.[8]

   [2] CB 31.

   [3] CB 38.

   [4] CB 40.

   [5] CB 42.

   [6] CB 43.

   [7] CB 45.

   [8] CB 50.

2. On 27 April 2010, the Tribunal sent a letter to the applicant's last address for service, inviting him to attend a hearing.[9] On 11 May 2010, the Tribunal received a completed Response to Hearing Invitation form advising he would take part in the scheduled hearing.[10] The applicant did not appear at the hearing and did not contact the Tribunal to explain his failure to appear.[11]

   [9] CB 55.

   [10] CB 57.

   [11] CB 59.

The decision of the Tribunal

1. The Tribunal affirmed the decision under review setting out its reasons for decision in a statement dated 20 July 2010.[12] The Tribunal noted at [17] that without further details of the applicant's circumstances, it was not able to make any assessment as to whether there was a real chance that the applicant would be forced to undergo a sterilisation procedure if he returned to China or as to whether he would be charged with some crime for one or more of the five Convention reasons (at [17]).

   [12] CB 64. The statement of reasons was sent to the applicant at his nominated address for service by letter dated 21 July 2010: CB 63.

2. Consequently, the Tribunal was unable to be satisfied that the applicant had a well-founded fear of persecution, and found he was not a refugee (at [18]).

Legislative framework

1. The decision of the Tribunal in the present case is a purported privative clause decision as defined by s.474(2) of the Migration Act 1958 (Cth) (“the Migration Act”). Section 474 operates to prevent the judicial review of all decisions under the Migration Act except those vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

The present application

1. These proceedings began with a show cause application filed on 19 August 2010. The applicant continues to rely on that application. There are four grounds in the application:

   1.The Tribunal and the primary decision maker erred in failing to [recognise] the principle of non-refoulment contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (the Convention).

   2.The Tribunal and the primary decision maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant’s claims of refugee status and the Tribunal failed to consider whether any other motives could ground a finding of [lack] of bona fides.

   3.The Tribunal and the primary decision maker erred in finding that the general attack on the applicant’s credit as an element of a failure to make a bona fide consideration of the application.

   4.The Tribunal member and the primary decision maker erred in their construction of the Migration [Act] 1958 (the Act) Part 8.

2. The application is supported by a short affidavit, which I received as a submission. I received as evidence the court book filed on 29 September 2010.

3. I gave procedural directions in this case on 5 October 2010.  At that time, among other things, I listed the matter for hearing on 15 November 2010. At that hearing, the applicant attended in person and a female person attended in support of him. It became apparent at the hearing that the applicant asserted non receipt of correspondence relating to the proceedings, in particular from the Minster’s solicitors.

4. Both the applicant and his support person, Ms Linda He, gave evidence in relation to that issue. The evidence, which I accept, is that the applicant has been assisted both before the Minister’s Department and the Tribunal and in this Court by a friend, Mr David Deng. The applicant has used an addressed provided by Mr Deng, both before the Tribunal and before this Court, as an address for service or the receipt of correspondence. Mr Deng is a person who the applicant has met in the Chinese community and in whom the applicant has placed his trust. The applicant has not paid Mr Deng for his assistance.

5. Unfortunately, the address for service provided in these proceedings proved ineffective in that correspondence sent to the address was not brought to the applicant’s attention. In particular, the applicant did not receive the court book which had been sent to him at the address for service by the Minister’s solicitors. The applicant had also not had the opportunity to consider the Minster’s written submissions. I decided that, in the circumstances, procedural fairness required an adjournment of the hearing. I adjourned the hearing until 2.15pm on 30 November 2010.

6. Shortly before the scheduled adjourned hearing date, my associate was contacted and was told that the applicant was unwell. A medical certificate was provided. The Minister’s solicitors consented to an adjournment until today. At today’s hearing, I confirmed with the applicant that he was fit to attend and participate in the hearing.

7. The applicant knows nothing of the grounds of review advanced in his application before the Court. As explained by the applicant in his evidence on 15 November 2010, Mr Deng was responsible both for the preparation of the application and the supporting affidavit. The arrangement between Mr Deng and the applicant appears to be that the applicant is from time to time called upon to sign documents without paying regard to their contents.

8. The Minister’s submissions deal adequately with the grounds advanced in the application.  I agree with those submissions. 

9. The application raises four grounds:

   a)The first ground asserts that the Tribunal failed to recognise the principle of non-refoulement in the 1951 Convention Relating to the Status of Refugees. 

   b)The second and third grounds assert error in relation to a finding regarding a lack of bona fides.

   c)The fourth ground asserts that the Tribunal erred in its construction of Part 8 of the Migration Act.

Consideration

1. The first ground is without merit. Although it may be accepted that Australia has obligations under international law not to return persons to countries where they would face persecutory harm, such matters are for the Minister’s Department to consider prior to the removal of the applicant from Australia.[13]

   a)The relevant question for the Tribunal was whether it could be satisfied, for the purposes of s.65, that the applicant was owed protection obligations by Australia.

   b)The High Court in NAGV and NAGW of 2002 v Minister for Immigration (2005) 222 CLR 161 unanimously concluded that s.36(2) of the Migration Act, whether protection obligations were owed, was to be determined solely by reference to the definition of a “refugee” in Article 1A(2) of the Convention. There was no additional requirement placed on applicants for a protection visa. Specifically, Article 33(1) of the Refugees Convention, which prohibits the refoulement of a person, did not have the result that s.36(2) could be construed in such a way as to allow that person's return to a “safe third country”.

   i)In the Court's view, at [58], it would have been a simple matter for Parliament to have enacted provisions dealing explicitly with the question of “asylum shopping”. This construction should not be implied in s.36(2) in circumstances where the Explanatory Memoranda described the legislative amendment as a “technical change”. (at [40]).

   ii)In circumstances where an applicant has met the requirements of Article 1A(2), he or she, without more, is owed protection obligations. The Court's unequivocal conclusion (at [42]) is that there was no “superadded derogation from that criterion by reference to what was said to be the operation upon Australia's international obligations of Art 33(1) of the Convention”.

   c)The Tribunal was not satisfied that the applicant was a refugee, and was therefore required to refuse to grant the applicant the visa.

   [13] See SZBKB v Minister for Immigration [2005] FMCA 719 per Driver FM.

2. I reject that ground.

3. The second and third grounds are not clearly expressed, however neither ground appears to relate to the circumstances of the present case.  I reject those grounds.

4. The fourth ground, similarly, does not apparently relate to this case, and appears to suggest that the Tribunal considered Part 8 of the Migration Act. The Tribunal did not make any findings in relation to Part 8 of the Migration Act, neither would it have been appropriate for it to do so. I reject that ground.

5. I note that the grounds of the application appear to be identical to those that were before Raphael FM in the matter of SZLPU v Minister for Immigration & Anor [2008] FMCA 890. His Honour disposed of that matter simply, finding no error in the Tribunal’s decision.

6. The application purports to challenge not only the decision of the Tribunal but also the decision of the Minister’s delegate. I explained to the applicant today that the decision of the Minister’s delegate was a “primary decision” as defined in the Migration Act and the Court does not have jurisdiction to review it.

7. The decision of the Tribunal was the inevitable consequence of the applicant failing to attend the hearing to which he was invited. The Tribunal deals with the circumstances of that non-attendance [14] of its reasons[14]:

   On 11 May 2010 the Tribunal received from the applicant a completed ‘Response to Hearing Invitation’ form advising that he would take part in the scheduled hearing.  However the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear not did he contact the Tribunal to explain his failure to appear.  In these circumstances, and pursuant to section 426A of the Act, I have decided to make my decision on the review without taking any further action to enable the applicant to appear before me.

   [14] CB 67.

8. The hearing invitation referred to by the Tribunal is reproduced at CB 55 and 56. I am satisfied that the Tribunal met its obligations pursuant to s.425 of the Migration Act. There is no doubt that the applicant received the hearing invitation. The applicant confirmed that today from the bar table. The response to the hearing invitation is reproduced at CB 57 and 58. The applicant confirmed that he signed the response to hearing invitation. He told me, however, that in accordance with what appears to be the general arrangement between him and Mr Deng, he signed it without paying attention to its contents. He also told me that Mr Deng did not explain the contents of the document to him. In the circumstances, in my view, the fault is that of the applicant for his failure to attend the Tribunal hearing. It was his responsibility to give attention to what should have been an important matter for him. It appears that he has chosen to place his trust in a person in the Chinese community, to assist him in his dealings with the Minister’s Department, with the Tribunal, and with this Court.

9. It also is apparent that the consequences of the applicant having done so include difficulties both in the Tribunal and in this Court. His trust may not have been well placed. However, there is no evidence of any fraud being perpetrated on either the applicant or the Tribunal. It is simply a case of the applicant being assisted in an ineffective way by Mr Deng and the applicant not paying proper attention himself to matters of importance concerning his review application before the Tribunal. The Tribunal’s discretion, under s.426A was properly enlivened and the Tribunal was entitled to proceed in the absence of the applicant. Because the Tribunal was unable to explore the applicant’s claims with him at the hearing, the Tribunal could not be satisfied that the applicant had a well-founded fear of persecution in China, for the reasons he gave.

10. The Tribunal’s reasoning is relevantly reproduced at [17][15]:

    In the present case the applicant claims that he fears that if he returns to china he will be forced to undergo a sterilisation procedure and he will ‘get other crime like “traitor” or other too’.  Without further details with regard to the applicant’s circumstances it is impossible to make any assessment with regard to whether there is a real chance that the applicant will be forced to undergo a sterilisation procedure if he returns to China or that he will be charged with some crime for one or more of the five Convention reasons.  As referred to above, the applicant did not attend the scheduled hearing in relation to his application.  I am unable to be satisfied on the evidence before me that there is a real chance that he will be persecuted for one or more of the five Convention reason[s] if he returns to China now.

    [15] CB 69.

11. I see no error in the Tribunal’s approach.  In my view, the Tribunal’s decision is a privative clause decision and the consequence is that the application must be dismissed. 

The process for making protection visa applications

1. I have, on several occasions previously put the view that it should be a condition on a valid protection visa application that the application is made through a registered migration agent who is a legal practitioner[16]. The Court is confronted all too frequently with cases in which problems have resulted from applicants being assisted by persons who are not registered migration agents. The Court also, not infrequently, has to deal with problems resulting from ineffective assistance being provided by registered migration agents who are not legal practitioners and who appear not to have an adequate understanding of their professional obligations.

   [16] See in particular SZMEM v Minister for Immigration & Anor [2008] FMCA 1286 at [20].

2. The Court sees only a proportion of the cases which are dealt with by the Refugee Review Tribunal. The Tribunal, in turn, sees only a proportion of the cases which are dealt with by the Minister’s Department. The problems which bedevil applications such as this in this Court must be more significant before the Tribunal and even more significant before the Minister’s Department. In the circumstances, I find it mystifying why action is not taken by the Minister’s Department to put in place a more robust regime for the consideration of protection visa applications. Until the system for the presentation of such applications is reformed, these problems will continue. In the present case, if the application to the Minister’s Department had been made through a legal practitioner with a proper address for service, the delay of almost a decade in reaching this stage of the legal process could have been avoided.

3. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,500. The applicant complained of impecuniosity and health problems. Those are not reasons for the Court to refrain from making a costs order, although they may be factors that the Minister’s Department could take into account in considering debt recovery action. I am satisfied that, in this matter, which involved an adjourned final hearing, that costs of not less than $5,500 were reasonably and properly incurred when assessed on a party and party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  16 December 2010