SZQBL v Minister for Immigration
[2011] FMCA 542
•15 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQBL v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 542 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and was given the pseudonym SZQBL. |
| Migration Act 1958 (Cth), ss.91X, 424, 426, 441, 474 Migration Regulations 1994 (Cth), Reg.4.35D |
| Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 Plaintiff S157/2002 v Commonwealth [2003] HCA 2 SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 VNAA & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 |
| Applicant: | SZQBL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 534 of 2011 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 20 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2011 |
REPRESENTATION
| Solicitors for the Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Ms B. Rayment of Sparke Helmore Lawyers |
ORDERS
The Application filed on 23 March 2011 be dismissed.
The Applicant is to pay the First Respondent’s costs, fixed in the amount of $4,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 534 of 2011
| SZQBL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an Application filed on 23 March 2011 by the Applicant, seeking an order that the Respondent show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect to the decision of the Refugee Review Tribunal dated 16 February 2011, which affirmed the decision of a delegate of the Minister dated 29 November 2010, to refuse to grant the Applicant a Protection (Class XA) visa. The Applicant was invited to attend an interview before the Minister’s delegate but failed to appear or explain his non-appearance. The delegate refused to grant the Applicant a protection visa as the delegate was “unable to assess the veracity and credibility of the written claims put forward” and could not be satisfied that the Applicant suffered Convention related persecution in the past or would do so in the future.
On 23 December 2010 the Applicant lodged an Application with the Refugee Review Tribunal for review of the delegate’s decision. In a letter dated 14 January 2011, the Tribunal validly invited the Applicant to appear before it at a hearing scheduled for 11 February 2011. No response to the hearing invitation was received by the Tribunal and the Applicant failed to appear at the scheduled hearing or contact the Tribunal to explain his non-attendance. The Tribunal, as specifically empowered by s.426A(1), proceeded to determine the review without taking any further action to enable the Applicant to appear before it. The Tribunal found it was deprived of an opportunity to explore with the Applicant aspects of his claim because he failed to attend the hearing. Accordingly, on the basis of the limited evidence before it, the Tribunal was unable to be satisfied of any of his claims.
The Applicant sought judicial review of the Tribunal’s decision in an Application filed on 23 March 2011, which contained three purported grounds of review. None of the grounds contained any particulars to make them meaningful and no submissions, written or oral were advanced by the Applicant. The Applicant appeared as a self-represented litigant and had the assistance of a mandarin interpreter. I believed it was in both parties’ interest to know with some certainty the future progress of the matter. Consequently, I made orders at the conclusion of the hearing and indicated that I would publish my reasons for those orders.
Introduction
In accordance with the Court orders made on 12 April 2011, the solicitors for the First Respondent were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court book was marked exhibit ‘A’ and is the only evidence before the Court.
At the First Court Date directions hearing, the Applicant was granted leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material. The Applicant elected not to pursue this option and relied upon the original Application. The Applicant was also required to file and serve, in the Registry, a short written outline of submissions and a list of authorities 14 days before the hearing. This order was not complied with.
The proceedings
The background material contained in the Tribunal decision indicated the Applicant first arrived in Australia on 6 October 2009 as the holder of a student visa, which was valid until 6 October 2010. He departed Australia on 10 August 2010 and returned to Australia on 20 August 2010 as the holder of a student visa. He lodged an application for a Protection (Class XA) visa on 29 September 2010. In the protection visa application form the Applicant sets out his claim which relates to being a Falun Gong practitioner.
In the application form for the protection visa the Applicant states that he is a national of China, ethnic Chinese, aged 23 years and never married. He completed 13 years of education and then worked as a library assistant. His Chinese passport was issued on 4 January 2008, in his own name, by the Exit and Entry Administration, Ministry of Public Security, valid until 3 January 2018. He stated that he departed China legally through the Pudong Airport. He provided a copy of the pages of his passport, showing his personal details and an Australian visa, as well as wet-stamps indicating entry and departure.
In relation to his claim and why he left his country, the Applicant stated as follows:
I was prosecuted when I was in China because my parents and I are Falun Gong practitioners. My parents were ever put into jail. I was forced not to go to university. I have to find a job after I graduated from high school. I was required to go to local police station every two weeks. Sometimes I was even forced to attend so-called classes to wash my brain. Thus, I left China.
Elsewhere in answer to questions in the application form, the Applicant stated he feared returning to his country as he would face a real risk of being jailed as a Falun Gong practitioner and would be required to attend “those so called classes, arranged by the Chinese authorities”. He feared harm from the Chinese authorities and does not think the authorities would protect him if he were to return to his country.
The Applicant was invited by a delegate of the Minister to attend an interview during the course of assessing his claims for a protection visa. The Applicant did not attend the interview. The delegate refused to grant the visa on 29 November 2010.
The Tribunal decision indicated the Tribunal received an Application for review of the delegate’s decision on 23 December 2010. By letter dated 24 December 2010, the Tribunal acknowledged receipt of the review application and invited the Applicant to provide any material or written arguments for the Tribunal to consider. No reply was received to that letter. By letter dated 14 January 2011, the Tribunal invited the Applicant to attend a hearing scheduled for 11 February 2011 to give oral evidence and present arguments relating to the review. The Tribunal advised the Applicant in the same letter that it had considered the material before it and on the basis of that material alone, it was unable to make a favourable decision. The Applicant did not reply to the invitation letter, did not appear at the hearing, as scheduled, and did not contact the Tribunal.
Tribunal’s findings and reasons
Again I rely upon the findings and reasons as stated in the decision as they are briefly and succinctly put as follows:
29. The applicant has not availed himself of the opportunity to attend a hearing; the Tribunal has before it only the information contained in the written material from which to reach a decision.
30. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997)191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437 at 451.
31. The Tribunal finds that the applicant is a national of the People’s Republic of China on the basis of a copy of a valid Chinese passport bearing his personal details; and that he is outside his country.
32. The Tribunal is unable to accept, based solely on the applicant’s claims on his visa application, that he is a genuine practitioner of Falun Gong, or that he is perceived by the authorities to be a practitioner of Falun Gong. For this reason the Tribunal does not accept that the faces a real chance of persecution amounting to serious harm in the reasonably foreseeable future if he were to return to China. The Tribunal was unable to ask the applicant questions in relation to these issues as he did not avail himself of the opportunity to attend the hearing to give oral evidence and present arguments relating to these issues.
33. The Tribunal finds that it is not satisfied to accept his claims and, on the evidence before it, is not satisfied that the applicant has a well-founded fear or persecution within the meaning of the Convention.
Grounds of review
The grounds of review contained in the original Application filed on 23 March 2011 are as follows:
1. The Second Respondent acted in breach of section 424A of the Migration Act 1958.
2. The Second Respondent failed to put adverse information relied on as the reason of the decision to the applicant.
3. The purported decision of the Second Respondent was not a privative clause decision.
Consideration
At the hearing before me, the Applicant, through his interpreter, confirmed that he had not prepared or filed any written submissions and indicated that he did not wish to make any oral submissions. The Applicant was asked whether he had received the written submissions prepared by Ms Rayment on behalf of the Respondents and whether these had been interpreted for him. He confirmed that he had received the documents and these had been read and interpreted for his benefit, however he had no comments or submissions to make in response.
I indicated to the Applicant that the only material before the Court were three bland statements, grounded on administrative review which bore no relevance to the issues or reasons for the Tribunal dismissing the application before it. However, the Applicant declined the opportunity to advance any argument in support of his Application.
This Court notes that in a letter dated 14 January 2011, the Tribunal validly invited the Applicant to appear before it at a hearing scheduled on 11 February 2011 (CB 46-47). The invitation complied with the applicable legislative requirements and was addressed correctly to the address nominated by the Applicant in his Application for Review (CB 43), as the address at which he elected correspondence to be sent. Relevantly, the invitation:
a)Invited the Applicant to appear before it and to give evidence: s.425(1);
b)Provided notice of the specific day, time and place of the hearing: s.425A(1);
c)Was given to the Applicant by one of the means specified in s.441A namely, registered post: s.441A(4);
d)Provide a period of time to the Applicant exceeding the proscribed period of 14 days: Reg.4.35D of the Migration Regulations 1994. “Notification” is taken to have been received seven (7) working days after the document (s.441C(4)) so the Applicant is given to have received notification on 25 January 2011; and
e)Contained a statement of the effect of s.426A – namely, the options available to the Tribunal if the Applicant failed to appear before it: s.425A(4).
A copy of the Tribunal’s registered post records also verified that the hearing invitation was dispatched within three working days of the date of the letter as required by s.441A(4)(a) of the Act. Accordingly, the invitation complied with the statutory requirement contained within s.425(1) and s.425A of the Act and Reg.4.35D of the Migration Regulations 1994. No response to the hearing invitation was received by the Tribunal and the Applicant failed to appear at the scheduled hearing on 11 February 2011 or contact the Tribunal to explain his non-appearance (CB 53 at [28]). The Tribunal, as specifically empowered by s.426A(1) proceeded to determine the review without taking any further action to enable the Applicant to appear before it.
I indicated that I had read and accepted the submissions made by Ms Rayment in response to the grounds of review contained in the original Application filed on 23 March 2011.
First ground
This ground asserts that the Tribunal breached s.424A of the Migration Act but does not identify the information that should have been put. This ground cannot succeed because s.424A has no relevance in this Application. There was no adverse material relied upon by the Tribunal and the Tribunal decision makes no reference to relying upon any material. The basis of the decision was the insufficiency of the material provided by the Applicant in his original protection visa application and his failure to appear before either the delegate or the Tribunal to answer questions and elaborate on his claims.
Second ground
This is no more than an alternate expression of ground one which is unsupported by any particulars, together with the lack of application of s.424A , this ground cannot succeed. There is no reference in the Tribunal decision to adverse material being put to the Applicant. The acknowledgement letter forwarded to the Applicant on 4 December 2010 clearly states:
If you wish to provide material or written argument to the Tribunal to consider, you should do so as soon as possible.
In the invitation to appear letter dated on 14 January 2011, the Tribunal states:
The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.
You are invited to appear before the Tribunal to give evidence and present argument relating to the issues arising in your case.
These invitations were not responded to and the Applicant did not appear at the hearing to advance his argument. The decision was clearly based on the lack of information provided by the Applicant and not on any adverse material.
Ground three
This ground is the mere assertion that the decision of the Tribunal is not a privative clause decision, but a decision is a privative clause decision if it is absent any jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2. I accept the submission by Ms Rayment that the Applicant has made no meaningful attempt to identify jurisdictional error in the Tribunal decision and none is apparent. It is the Tribunal’s power to proceed under s.426A(1), as it did in this case, and this is available to it even if circumstances are shown which would otherwise show a failure of procedural fairness: VNAA & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [14] – [15]; SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 at [17]; and Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]. Although the power conferred by s.426A must be exercised reasonably and cannot be exercised capriciously, the election to make a distinction on the review is not, by itself, the expression of an unreasonable exercise of the power: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 per Greenwood J at [20] – [21].
There is no obligation on the Tribunal to make any enquiry as to the failure on the part of an Applicant to appear or “to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant”: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 per Spender, French and Cowdroy JJ at [39].
No specific complaint is articulated by the Applicant about the process by which he was invited to attend the hearing pursuant to s.425 since the hearing invitation complied with the applicable legislative requirements and was validly sent to the Applicant. No error by the Tribunal, in its compliance with the statutory requirements contained in s.425(1) and s.425A of the Migration Act 1958 and Reg.4.35D of the Migration Regulations 1994 is apparent.
Conclusion
I accept the submission of Ms Rayment that the Application failed to establish any jurisdictional error on the part of the Tribunal. Consequently, the Tribunal decision is a privative clause decision within the meaning of s.474 of the Migration Act 1958 and the Application should be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 15 July 2011
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