SZQFJ v Minister for Immigration
[2011] FMCA 665
•10 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQFJ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 665 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36(2), 425A, 426A, 441A, 441C, 441G Migration Regulations 1994 (Cth), reg. 4.35D |
| Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 1550 FCR 439; [2006] FCAFC 73 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 346 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 |
| Applicant: | SZQFJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 906 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 10 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 906 of 2011
| SZQFJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 30 March 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant and his father protection visas.
It is relevant to note that it was the applicant’s father who was the person who made claims to be a refugee and that the present applicant sought a protection visa solely on the basis of being a member of his father’s family unit. His father is not a party to these proceedings. No independent claim to refugee status was advanced by the applicant either in the material put before the Department, including the application forms and the father’s statement of claims and subsequent evidence provided, or in the material provided to the Tribunal.
The Department raised with the visa applicant’s migration agent the issue of whether or not the present applicant was in fact a dependent of his father. The migration agent provided a statutory declaration from the father about his son’s dependency on him and made submissions in that respect.
The Department invited the applicant’s father to attend an interview. In reasons for decision the delegate recorded that the father had been invited to attend an interview and that his agent was contacted by telephone to ascertain if the date was suitable because of tight time frames related to the son’s detention. The father’s residential address was confirmed with the migration agent. A letter from the Department was sent to both the agent and to the applicant advising that if the father did not attend the interview the application may be decided on the information before the Department. The father did not attend the Departmental interview or contact the Department.
The delegate was not satisfied on the limited material before it of the father’s claims and determined that it was not satisfied that he was a person to whom Australia had protection obligations. In those circumstances, the delegate also refused to grant the son a protection visa.
The application for review lodged with the Tribunal named both the father and the son as applicants. In that form a migration agent was appointed adviser. The father indicated that he wanted all correspondence in connection with the review sent to his adviser whom he nominated as his authorised recipient.
Importantly, Section F of the form was signed by the second applicant who is the applicant in the present proceedings. He declared, among other things, that unless he advised the Tribunal otherwise he authorised the Tribunal to communicate with the first applicant (that is his father) or his authorised recipient (the migration agent) about the application.
Relevantly, the Tribunal invited each of the applicants to a hearing by letter of 25 February 2011. I will return to the manner in which that invitation was made in considering the grounds in this application.
Neither the father nor the son attended the Tribunal hearing. In its reasons for decision the Tribunal recorded that the migration agent had been appointed authorised recipient, that a Tribunal officer had contacted the migration agent to confirm the correct facsimile number to which correspondence should be sent and that she advised that she had provided the incorrect facsimile number. She provided the correct number to the Tribunal officer. The Tribunal then wrote to the applicants care of the migration agent inviting them to the hearing. In addition, as the son was in detention, the Tribunal requested the business manager at Villawood Detention Centre to hand deliver a copy of the hearing invitation letter to him and made arrangements for him to be escorted to the hearing.
There was no response to the hearing invitation. The Tribunal recorded that it telephoned the representative inquiring whether the applicant would attend. She advised she would have to speak with the applicant (father) and advise the Tribunal. She made no further contact with the Tribunal. The Tribunal recorded that the applicant did not appear, nor did his son, that no further communication was received from the applicant father, his son or the representative and that there had been no contact with the Tribunal to explain the non-attendance or to request that the hearing be rescheduled.
The Tribunal was satisfied that the applicants had been invited to appear before the Tribunal and that the invitation was sent to the address for correspondence listed on the application form, that being the facsimile number of the representative. In those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth) (the Act) the Tribunal decided to make its decision on the review without taking any further action to enable the applicants to appear before it.
In its findings and reasons the Tribunal considered the claims of the applicant’s father. It observed that he claimed to be a citizen of China. He arrived in Australia in 2007 and applied for protection in December 2010. He claimed to fear persecution based on his religion. The Tribunal found that there was no evidence before it as to the basis on which the father claimed to have practised Christianity and that it did not have adequate evidence as to the father’s understanding of Christianity, the meaning of the songs he claimed he sang in China, what he learned from Bible studies classes and the content and method of his prayer. Such evidence would have enabled it to “form a clear and accurate view as to whether or not the applicant [father] had practised Christianity in China”. It also referred to the absence of detailed evidence about the special ceremonies the father claimed to have held in the church he attended or of evidence as to how he practised his Christian faith in Australia. The Tribunal observed that the father had “failed to avail himself of the opportunity to discuss these matters with the Tribunal at a Tribunal hearing”.
The Tribunal also referred to the absence of detailed evidence about the father’s claims that he and fellow practitioners were harassed by the authorities in China, as to where church gatherings were held when they resumed or as to the circumstances of the father’s claimed arrest and detention. It also detailed other areas in relation to which there was limited evidence before it.
The Tribunal also addressed the father’s claim to fear harassment from the authorities for breaching the one-child policy, including being fined and his wife being forcibly sterilised. It recorded that he made no claim to fear persecution on that ground and that even if he had, there was no evidence as to how that led him to suffer serious harm or that their breach of the one-child policy would lead to him suffering serious harm on return to China.
Having set out the issues on which it would have required further clarification from the father, the Tribunal found that without more detail it was difficult to know what significance could be attached to the father’s assertions in the absence of further information which would enable the Tribunal to be satisfied that the father had suffered persecution in the past and that he had a well-founded fear of suffering persecution on a Convention ground in the future.
In view of the insufficient information and lack of detail in the father’s claims the Tribunal was not satisfied that he had been persecuted for a Convention reason in the past or that there was a real chance he would be persecuted for a Convention reason in the reasonably foreseeable future. It was not satisfied that the father had a well-founded fear of persecution for a Convention and was not satisfied that he was a refugee.
The Tribunal found that the son was included in his father’s protection visa application as a member of the family unit who did not have his own claim to be a refugee. No claim has been advanced to the Tribunal that the son had suffered or would suffer persecution in China for a Convention reason. Accordingly, as the father had been found not to be a refugee, the Tribunal found also that the son was not owed protection obligations by Australia. The decision of the delegate to refuse the son’s application was affirmed.
The Tribunal concluded that as the applicants did not satisfy the criterion in s.36(2)(a) of the Migration Act for a protection visa, it followed that they were also unable to satisfy the criterion in s.36(2)(b) (which relates to members of a family unit) and hence that they could not be granted the visa.
The son (but not the father) sought review of the Tribunal decision by application filed in this court on 2 May 2011. There are two generally expressed and unparticularised grounds in the application. They are that there was “procedural unfairness in the review conducted by the Refugee Review Tribunal” and that the applicant (son) was “prejudicially treated by the Refugee Review Tribunal”. In his accompanying affidavit the applicant claimed that he had been “unfairly treated by the Immigration Department” (although this application is an application for review of the Tribunal decision) and that he was being “prejudiced” by the Tribunal.
It is appropriate to consider both the grounds as raised in the application and also the issue of whether the applicant was properly invited to a Tribunal hearing, a matter addressed in the respondent’s submissions.
The generally expressed and unparticularised ground of procedural unfairness in the review conducted by the Tribunal does not establish jurisdictional error. When given the opportunity to elaborate on this ground in oral submissions the applicant simply stated that he and his father did not attend the Tribunal hearing and that they wanted the matter to go back to the Tribunal.
Of itself that claim does not establish jurisdictional error. It does raise the issue of whether the applicants were properly invited to the Tribunal hearing. In that respect it is relevant to have regard to the fact that, as set out above, in their application for review to the Tribunal the son authorised the Tribunal to communicate either with the father or his authorised recipient about the application, and the father appointed his adviser his authorised recipient. Contact details for the adviser were provided in the review application.
On 25 February 2011 the Tribunal endeavoured to send a facsimile to the applicants’ authorised recipient inviting the applicant and his father to attend a hearing before the Tribunal on 17 March 2011. The facsimile was sent to the facsimile number provided in the application for review. The copy of the attempt to send the facsimile contained in the court book is headed “fax failed” and records that there was no answer from that number.
The Tribunal then contacted the authorised recipient and was informed that the facsimile number was incorrect. The invitation was then faxed to the new number provided on the same day. The Tribunal updated its records to show the change to the facsimile number of the authorised recipient/migration agent. As the applicant was in immigration detention the Tribunal also sent a facsimile to Villawood Detention Centre requesting that he be provided with a copy of the hearing invitation.
The invitation sent on 25 February 2011 complied with the requirements of the Migration Act. The father had given the Tribunal notice of an authorised recipient (see s.441G of the Act). The son authorised communication by the Tribunal with that person. The invitation faxed to the number provided for the authorised recipient complied with the requirements of s.425A of the Act. It invited the applicants to a hearing and gave notice of the day, time and place. It was given by one of the means specified in s.441A of the Act (in particular by facsimile as contemplated by s.441A(5) of the Act) to the last facsimile number provided to the Tribunal by the recipient in connection with the review. A copy was also sent to the applicant in the detention centre.
As the father had appointed the migration agent as his authorised recipient, under s.441G of the Act the Tribunal had to give the authorised recipient (instead of the father) any document that it would otherwise have given to him. As it did so in accordance with s.441A of the Act, then that person was taken to have received the document in accordance with s.441C of the Act.
The applicant was given sufficient notice of the hearing in accordance with reg.4.35D of the Migration Regulations 1994 (Cth) by virtue of the facsimile notification given on 25 February 2011. The letter of invitation also contained a statement about the effect of s.426A of the Act and, relevantly, advised that the Tribunal was unable to make a favourable decision on the information before it, informed the applicants that they must contact the Tribunal immediately if unable to attend the hearing on the date specified and that if they failed to attend the Tribunal may make a decision without taking any further action to allow or enable them to appear before it.
No response was received to the hearing invitation. The Tribunal recorded that it contacted the authorised recipient to confirm that she and the applicant father would be attending the hearing and that she advised she would need to speak with him and get back to the Tribunal, but that she did not do so. The applicant did not attend the hearing. Nor did his father. It was open to the Tribunal to proceed to make a decision on the review without further action to enable him to appear before it (s.426A).
The applicant in these proceedings does not take issue expressly with the Tribunal’s procedure in this regard. In any event there is nothing in the material before the court to indicate that the Tribunal failed to properly invite the applicants to a hearing in accordance with the provisions of the Migration Act. Insofar as the applicant intended to raise this issue in ground one of his application, this claim is not made out. Nor is there any other basis to support his assertion of procedural unfairness.
The second ground in the application is that the applicant was “prejudicially treated” by the Tribunal. He initially claimed that, because he did not know English, his friend helped him. When asked to clarify what he meant by this, he simply said he wanted to go back to the Tribunal to have it review his application. This ground, as expressed, is not made out.
Generally, insofar as it is intended to be contended that the Tribunal did not comply with its obligations under the Migration Act, the applicant and his father were validly invited by the Tribunal to attend a hearing and both failed to attend. In these circumstances, as the first respondent submitted, the Tribunal was specifically empowered by s.426A of the Act to proceed to make a decision on the review without taking further action to allow or enable the applicants to appear before it. The Tribunal considered whether to proceed on this basis and decided to do so.
The Tribunal considered the evidence before it, but concluded that the evidence was insufficient to make a favourable decision. No jurisdictional error is apparent in the Tribunal’s decision that the facts advanced by the applicant did not cause it to be satisfied that the father met the applicable visa criteria in relation to an application for a protection visa.
The Tribunal was not required to accept the father’s claims at face value. The weight to be given to those claims and to the evidence was a matter for the Tribunal. It would be difficult for the Tribunal to be satisfied if an applicant did not provide sufficient information. In the absence of a positive finding of satisfaction a visa application must be rejected (see NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 346 and NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86).
In written submissions the first respondent pointed out that no complaint was made by the applicant about the process by which he was invited to attend the hearing or to explain his non-attendance. In submissions the applicant stated generally that he and his father did not attend the hearing because the agent did not take the responsibility. He then said that she asked him not to attend the hearing or interview.
However, as pointed out for the first respondent such assertions are not supported by any evidence. There is no evidence before the court and the assertions are not such as to raise a claim of third party fraud in the sense considered by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35. There is no evidence that there was any communication to the Tribunal to that effect. The oral submissions at the hearing were the first time at which such a contention was raised. In any event such an assertion, even if it were in the form of evidence, is not sufficient to amount to an allegation of fraud of the migration agent such as to disable the Tribunal from the discharge of its statutory functions. It is well established that the fact of a failure to inform or mere negligence is not sufficient to give rise to fraud on the Tribunal (see SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67). Bad advice does not of itself constitute fraud. This contention does not establish jurisdictional error.
In submissions in reply, the applicant then raised for the first time a claim that his father (who is not a party to these proceedings and has not given evidence) was going to attend the “interview” but that he was not well and went to the hospital. He claimed he gave a receipt or proof of this to the migration agent and asked the agent to tell the Department that his father did not attend the interview because he was not feeling well but the agent did not pass the message on. He also claimed that his father’s level of education was not high and that he did not know what to do.
Insofar as this appears to take issue with the circumstances in which the applicant’s father failed to attend the Departmental interview, the matter for review in these proceedings is the Tribunal decision. Even if there was any issue in relation to the Department interview that would not of itself establish jurisdictional error on the part of the Tribunal. In any event there is no evidence before the court to support such a claim, whether it be taken to relate to the Departmental interview or indeed to the Tribunal hearing.
The applicant also contended generally that he asked the agent to do everything for them and that she did not do so and that they did not know what to do. Again these claims do not suffice to raise any arguable allegation of fraud in the sense considered in SZFDE v Minister and Citizenship. As was pointed out by the High Court at [53]:
…there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.
The complaints that the applicant now makes for the first time about the conduct of the migration agent are not such as to establish that there was third party fraud on the Tribunal disabling it from the due discharge of its statutory functions. Nor has it been established that the Tribunal exercised its power to proceed under s.426A of the Act other than reasonably. I note that there is no obligation on the Tribunal to make any inquiry about the failure of an applicant to appear at a hearing or to search the papers lodged with it to discover whether there might be some other avenue of communicating with the applicant (see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 at [39]).
No jurisdictional error has been established. In these circumstances the application must be dismissed.
The applicant’s father is not a party to these proceedings. It is difficult to see how the applicant could possibly succeed were his application to be remitted to the Tribunal. In these circumstances the same outcome would be inevitable and a grant of the relief sought would be an exercise in futility. In any event no jurisdictional error has been established. The application is dismissed on that basis.
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 29 August 2011
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