SZOVP v Minister for Immigration

[2011] FMCA 183

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOVP v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 183

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – show cause order in relation to the fairness of the Tribunal hearing in circumstances where the applicant suffered from a mental disability and the applicant’s migration agent declined to attend.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 425

Applicant A v Minister for Immigration (1997) 190 CLR 225
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Minister for Immigration v SZNPG (2010) 115 ALD 303
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1
SGBB v Minister for Immigration (2003) 199 ALR 364
SZOOI v Minister for Immigration & Anor [2010] FMCA 816

Applicant: SZOVP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2667 of 2010

Judgment of: Driver FM

Hearing date: 21 March 2011

Delivered at: Sydney

Delivered on: 21 March 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

INTERLOCUTORY ORDERS

1. The Minister is to show cause, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth), why relief should not be granted in relation to the issue of whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) in proceeding with a hearing in the absence of the applicant’s migration agent in knowledge of the applicant’s serious mental disability.

2. Any subpoenas in relation to the final hearing of this matter be issued by 29 April 2011.

3. Any further affidavit evidence on which either party wishes to rely be filed and served no later than 20 May 2011.

4. The matter is listed for final hearing at 10.15am on 9 June 2011.

5. The applicant is to file and serve on the respondents an outline of legal submission in relation to the issues raised in the show cause order not less than 14 days before the final hearing.  A copy is to be emailed to my associate.

6. The first respondent is to file and serve on the applicant an outline of legal submission in relation to the issues raised in the show cause order not less than 7 days before the final hearing.  A copy is to be emailed to my associate.

7. Costs of today’s show cause hearing are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2667 of 2010

SZOVP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) made by the Principal Member on 12 November 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The background facts relating to the applicant’s protection visa claims and the decisions of the delegate and the Tribunal on them are conveniently set out in written submissions filed on behalf of the Minister on 14 March 2011. 

3. The applicant is a citizen of the People’s Republic of China (PRC) who first entered Australia on 24 September 2006 (court book “CB” 76) on a Student Guardian visa. The applicant returned to the PRC on 28 February 2008 to visit her dying mother but returned to Australia on 23 April 2008: CB 76.  The applicant applied for a Protection (Class XA) visa on 8 December 2009 (CB 1-26) and appointed a migration agent to assist her in connection with that application: CB 32-35.

4. In a typed three page statement attached to that application, the applicant stated that her father was imprisoned and publicly humiliated during the Cultural Revolution for reason of being an intellectual and a counter-revolutionaries [sic]. The applicant claimed that she feared harm on the basis that her husband was a person of adverse interest to the authorities.  Her husband and nephew had allegedly been involved in an altercation with a government official after the official refused to compensate them when their backhoe was destroyed by villagers protesting the demolition of their homes to widen roads.  The applicant’s husband and nephew were forced to go into hiding and the applicant was beaten and sent to a detention centre in her husband’s absence.  In 2006, the applicant’s nephew was set upon by more than ten unknown people and beaten to death when he returned to their village.  The applicant claimed further that she suffered from a “mental disorder” due to her experiences in the PRC: CB 27-29.

The delegate’s decision

1. On 11 February 2010, a delegate of the Minister invited the applicant to attend an interview scheduled for 3 March 2010: CB 40-41.  The applicant attended this interview and gave evidence in support of the claims made in her protection visa application: CB 51.8. Following the interview, the applicant provided to the delegate photographs of her husband with his backhoe (CB 42) and a document titled “Certificate of approval”: CB 43.

2. On 5 March 2010, the delegate made a decision refusing to grant the applicant a protection visa: CB 46-53. The delegate found that the harm the applicant feared from the threat of arrest and criminal prosecution if she returned to the PRC did not have a Convention nexus: CB 52. The Tribunal also found that her ability to return to the PRC in February 2008 and then depart again for Australia in April 2008 without incident indicated she was not a person of significant interest to the Chinese authorities regardless of whether her claimed fear related to Convention-based persecution or not: CB 52.8-53.1.  

3. The delegate was therefore not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention: CB 53.

The Tribunal’s proceedings

1. On 1 April 2010, the applicant lodged an application with the Tribunal to review the delegate’s decision: CB 54-57. She continued to be represented in relation to the review by her appointed migration agent: CB 55.

2. By a letter dated 15 April 2010, the Tribunal invited the applicant to attend a hearing before the Tribunal scheduled for 14 May 2010: CB 60-62.

3. The applicant accepted the invitation (CB 63) and attended the hearing and gave evidence on 14 May 2010: CB 65-66; CB 115-118, [28]-[53]. At the hearing the applicant provided translated copies of documents from hospitals in the PRC titled “Brief Summary of Hospital Discharge” (CB 68-69) and “Death Summary”: CB 70-71. The applicant also provided copies of pages from her passport: CB 72-78. The Tribunal hearing was adjourned as the applicant appeared unwell and an ambulance was called: CB 67; CB 113, [20].

4. By a letter dated 14 May 2010, the Tribunal invited the applicant to attend a rescheduled hearing before the Tribunal on 24 May 2010: CB 79-81. The applicant accepted this invitation (CB 82) but the hearing was later cancelled by the Tribunal member: CB 84-85.

5. By a letter dated 13 July 2010, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) inviting her to comment or respond to information in writing: CB 86-88. The letter referred to material contained on the Department file relating to her student guardian visa application in which she had indicated that her husband had been employed as the Deputy General Manager of a company since 2003. This information was said to be relevant because it suggested that she had fabricated her claims regarding the reasons why she left the PRC. On 2 August 2008, the applicant provided a response to that letter: CB 89.

6. By a letter dated 5 October 2010, the Tribunal invited the applicant to attend a hearing before the Tribunal scheduled for 3 November 2010: CB 90-91.

7. The applicant accepted the invitation to the hearing (CB 92), which she attended and gave evidence on 3 November 2010: CB 93-95; CB 115-118, [28]-[53].  At the hearing the applicant provided various medical references, receipts and certificates which indicated that she had been diagnosed with schizophrenia and required medication: CB 96-104, 106. The applicant also provided a translated copy of her mother’s death certificate (CB 105) and copies of the photographs previously provided to the delegate showing her husband on a backhoe: CB 107.

The Tribunal’s decision

1. In a decision dated 15 November 2010, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a protection visa: CB 110-122.

2. The Tribunal accepted that the applicant had been diagnosed with schizophrenia and that she had suffered traumatic events in her life that affected her health, such as the events she described in her protection visa application. However, the Tribunal was satisfied after considering her responses to its initial questions that the applicant was competent to give evidence: CB 118, [55]-[56].

3. The Tribunal had some concerns with the applicant’s documentary evidence (CB 118, [57]) but found that even if it accepted her claims it was not satisfied that the harm she suffered was for a Convention reason: CB 119, [58]. The Tribunal found that the applicant’s claimed fear of harm arose because of her association with her husband who the police were apparently seeking to charge with an offence: CB 119, [58].  The Tribunal found that the applicant could not be said to belong to a particular social group for the purposes of the Convention by reason of her association with her husband, as there was no evidence before the Tribunal that indicated that her husband was being targeted by the police for a Convention reason.  Rather, it found that the police wanted to charge (or at least interview) her husband about an affray which allegedly occurred at the local government offices in November 2004:  CB 119, [60]. Similarly, the Tribunal found that any harm which the applicant or her husband feared from the local villagers, due to their involvement in demolishing the villagers’ homes, was not founded on a Convention ground: CB 119, [61].

4. The Tribunal found further that there was no evidence that the authorities attributed political opinions of any kind to the applicant or her husband, or that they would be targeted by the authorities in the future for this reason: CB 119, [62].

5. Accordingly, the Tribunal found there was no real chance that the applicant would be persecuted for a Convention reason if she returned to the PRC in the reasonably foreseeable future: CB 120, [63].

6. These proceedings began with a show cause application filed on 9 December 2010.  That application contains three grounds of review. The matter came before me for first court date directions on 27 January 2011.  I listed the matter for a show cause hearing today in the light of the extreme generality of the grounds in the application and the fact that only the first ground appeared to properly engage the jurisdiction of the Court:

   1.      RRT did not consider my application fairly.

   2.      I was persecuted from the local government staff.

   3.      RRT low assess my risk to return to China.

7. The Minister filed a response on 20 December 2010 which I also took into account as the Minister submitted that the application did not raise an arguable case for the relief claimed.  The application is supported by a short affidavit which I received subject to the proviso that paragraph 2 of the affidavit was received only as a submission.  The affidavit is substantially the same and, in relation to paragraph 2, identical, including the spelling mistake, to the affidavit supporting the show cause application in SZOVJ v Minister for Immigration & Anor [2011] FMCA 173.

8. Both matters are cases in which the applicant has been assisted by Ms Weiming Qian, a registered migration agent.  The Minister’s solicitor informed me this morning that Ms Qian had brought the applicant to Court and that she and the solicitor had had a conversation outside Court.  Ms Qian did not wish to engage in conversation with the Minister’s solicitor about the matter and left the court precincts before I came on the bench.

9. I understand from what the Minister’s solicitor told me that Ms Qian asserted that she was not acting in any professional capacity for the applicant in the proceedings before this Court.  It appears to me, however, very likely that the application and supporting affidavit were prepared by Ms Qian given their template form and the typeface used.

10. I have before me as evidence the court book filed on 27 January 2011.  The directions I made on 27 January 2011 provided the applicant with the opportunity to file and serve additional affidavit evidence, including a transcript of the Tribunal hearing.  The applicant has not taken up that opportunity.  I note that she has had the benefit of an interview with counsel under the Minister’s panel advice scheme on 7 March 2011.  Written advice was provided by Mr James Johnson of counsel to the applicant the following day.

11. I agree with the Minister’s submissions relating to the show cause application. 

12. Although ground 1 asserts that the Tribunal did not consider the applicant’s application fairly, no explanation is given about how this occurred. To the extent that this is intended to be an allegation of bias or bad faith on the part of the Tribunal, there is no evidence before the Court to suggest that the Tribunal reached its decision in bad faith or with a closed mind. Such allegations must be firmly and distinctly made and clearly proven,[1] and it is a rare case in which a Court will find that such an allegation is made out based simply upon the decision maker’s reasons.[2]  This ground cannot succeed.

    [1] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J

    [2] Minister for Immigration v SZNPG (2010) 115 ALD 303 at [18]

13. Grounds 2 and 3 are not proper grounds of review and in substance seek impermissible review of the factual findings and merits of the Tribunal’s decision. The Tribunal considered the applicant’s claim to fear ham from local government staff if she returned to the PRC. However, the Tribunal was not satisfied that the harm she claimed to have suffered was for a Convention reason: CB 119, [58]. The Tribunal also considered whether the applicant’s claimed fear of harm arose on the basis that she belonged to a particular social group namely, a family member of a person targeted by the authorities for a Convention reason. However, the Tribunal was not satisfied that the applicant’s husband was targeted by the authorities for a Convention reason, and was also satisfied that the applicant was precluded from the scope of the Convention on the basis of s.91S: CB 119 [60]. These findings were open to the Tribunal on the evidence before it.[3]

    [3] See Applicant A v Minister for Immigration (1997) 190 CLR 225 at 243 per Dawson J

14. Similarly it was open to the Tribunal to find that the applicant and her husband’s fear of harm from the villagers was not for a Convention reason and that there was no evidence to suggest that they would be targeted for reasons of their imputed political opinions. These findings were open to the Tribunal to make on the evidence before it and cannot be challenged by judicial review in this Court.[4]  It was the applicant’s duty and responsibility to make her own case and bring any relevant material to the attention of the Tribunal.[5] The Tribunal was not obliged to deal with claims which were not articulated and which did not clearly arise from the materials before it.[6]

    [4] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

    [5] Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]; SGBB v Minister for Immigration (2003) 199 ALR 364 per Selway J at [16]

    [6] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at 19 [60] per Black CJ, French and Selway JJ

15. In ordinary circumstances, it would be difficult to disagree with the Minister’s submissions that the application should be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). However, there are in this case some issues of concern which in my view merit a final hearing. The first is the applicant’s state of mind. It is not in dispute that the applicant suffers from schizophrenia. It also appears from the Tribunal decision that the applicant suffers from paranoid delusions. I have observed the applicant twice and that is sufficient to satisfy me that the applicant suffers from mental difficulties, although not necessarily sufficient to prevent her from participating in a proceeding. Indeed, I have been able to determine myself that the applicant was capable of participating in both the first court date directions and the show cause hearing conducted today. The Tribunal had to reach its own conclusion on that issue. The Tribunal determined at [56] of its reasons (CB 118) that the applicant was competent to give evidence at the second tribunal hearing. At the same time, the presiding member stated at [57] (CB 118) that it was unclear how much reliability should be placed on all aspects of the applicant’s evidence, given the reference in a hospital discharge document to the possibility of the applicant suffering from delusions.

16. The second issue of concern is the role played by the applicant’s migration agent.  The response to the hearing invitation issued by the Tribunal is reproduced at CB 63.  Whoever filled out that response ticked “yes” in answer to the question whether the applicant would take part in the Tribunal hearing.  The following question, whether the applicant’s representative would be attending, is answered in the negative.  That, I understand, accords with the usual practice of this particular migration agent. 

17. The Tribunal, at [64] of its reasons (CB 120) expressed concern about the non-attendance of the applicant’s agent:

    As mentioned above, the applicant’s representative did not attend the Tribunal hearing.  The Tribunal notes that the representative was the same representative whose failure to attend the relevant Tribunal hearing was the subject of adverse comment by the Federal Magistrates Court in SZOOI v Minister for Immigration & Anor [2010] FMCA 816 (25 October 2010). In the present matter the failure of the representative to attend is of particular concern to the Tribunal given the vulnerability of the applicant. Her psychological and emotional state was such that it was not appropriate for her not to have had the benefit of support from her representative at the hearing.

18. There is, in my view, a need to explore at a final hearing the proper role to be played by a migration agent in tribunal reviews, and whether a migration agent owes a duty to the Tribunal in any way similar to that owed by a legal practitioner to a court.  Migration agents are in a different position to legal practitioners in a court and play a limited role in tribunal proceedings.  That is not to say, however, that migration agents do not owe duties both to their clients and to the Tribunal. 

19. There is also a question in my mind whether the Tribunal is empowered to compel the attendance of a migration agent and, if so, whether such a power should have been exercised in this case.

20. In view of those concerns, I have decided to order that the Minister is to show cause, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules, why relief should not be granted in relation to the issue of whether the Tribunal breached s.425 of the Migration Act in proceeding with a hearing in the absence of the applicant’s migration agent in knowledge of the applicant’s serious mental disability.

21. I have in mind that the Court should also consider whether the review process was in some way disabled by the non-attendance of the agent or by the non-exercise of some power available to the Tribunal in relation to the agent’s failure to attend.  I have little doubt that the applicant’s migration agent would be able to give useful evidence in relation to these issues.  The parties have available to them the opportunity to subpoena the agent to give evidence, should that be considered useful.  I will order that any subpoenas in relation to the final hearing of this matter be issued by 29 April 2011.

1. I will make procedural orders to progress the matter to a final hearing.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  23 March 2011