SZQGB v Minister for Immigration
[2011] FMCA 934
•8 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQGB v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 934 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A, 441C, 441G |
| Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 267; [2009] HCA 37 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35 SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 SZNNJ v Minister for Immigration and Citizenship [2009] FCA 1356 Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 |
| Applicant: | SZQGB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 998 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 8 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 998 of 2011
| SZQGB |
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 3 May 2011. The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
The applicant, a citizen of the Peoples Republic of China, arrived in Australia in August 2010 and applied for protection in September 2010. In connection with his protection visa application he claimed, among other things, that he owned a grocery store in China that had been forcibly dismantled as part of a development scheme, that he attempted to stop the police dismantling his shop and that he had appealed to the authorities. He claimed that he was detained twice as a consequence and that he felt he was followed after his most recent release.
The applicant participated in a telephone interview with the delegate of the first respondent. By decision of 21 January 2011 the delegate refused the application. The applicant sought review by application lodged with the Tribunal on 17 February 2011.
It is relevant to the claims made in these proceedings to note that in his review application the applicant provided a residential address in Queensland. He also provided contact details for an adviser he authorised to act for him in relation to the application including a post office box address in Auburn New South Wales. Section D of the review application form headed “where do you want us to send correspondence about your application?” was completed to request that all correspondence in connection with the review be sent to the adviser, whom the applicant nominated as his authorised recipient.
I note that the Form states that if an authorised recipient is nominated, the Tribunal will send all correspondence to the authorised recipient and that the Tribunal only sends copies of correspondence to applicants who have nominated an authorised recipient where the applicant is in detention.
Relevantly, the Tribunal wrote to the applicant by letter dated 15 March 2011 (enclosed in a letter addressed to his authorised recipient at the address provided in the application for review) inviting him to attend a Tribunal hearing on 15 April 2011. That letter advised the applicant that the Tribunal had been unable to make a favourable decision on the information before it and that if he failed to attend the hearing the Tribunal may make a decision without taking further action to allow or enable him to appear before it. The hearing was scheduled at a place in Brisbane, consistent with the fact that the applicant had indicated that he lived in Queensland.
The Court Book contains a completed “Response to Hearing Invitation” form dated 18 March 2011 indicating that the applicant, but not his representative, would attend the Tribunal hearing on 15 April 2011. However he did not do so. On 20 April 2011, after the scheduled hearing date, the Tribunal wrote to the applicant by letter sent to Ms Yu, his authorised recipient, noting that he had nominated Ms Yu as his authorised recipient to receive correspondence in connection with review, but that on 11 April 2011 Ms Yu had told the Tribunal that she no longer wanted to receive correspondence on his behalf. The applicant was asked to complete a form appointing a fresh representative or changing his contact details and advised that unless he did so the Tribunal would continue to send correspondence to Ms Yu in the absence of confirmation of withdrawal of his authorisation of her as his authorised recipient.
Also included in the Court Book is a completed change of contact details form dated 29 April 2011 which contains a postal address for the applicant (which in fact is the same Post Office Box address in Auburn New South Wales as had been provided for Ms Yu) but which withdrew the authorisation of Ms Yu to receive correspondence or to act as the applicant’s representative. The Tribunal sent its decision of 3 May 2011 to the applicant at the Post Office Box address provided.
In its decision the Tribunal recorded the applicant’s claims made in connection with his protection visa application and his elaboration on those claims at the Departmental interview. It also recorded that it had invited the applicant to a hearing by invitation dated 15 March 2011 in a letter sent to the applicant’s agent and that on 18 March 2011 it received the applicant’s response to hearing invitation stating that he would attend the hearing. It also described the correspondence in relation to the change of contact details form provided by the applicant in response to the Tribunal’s letter of 20 April 2011.
The Tribunal recorded that the applicant did not appear before it on the day, time and place at which he was scheduled to appear for the hearing and that he did not contact it regarding his failure to attend the hearing. The Tribunal observed that the agent had purported to withdraw her representation prior to the hearing, apparently on 11 April 2011, that the applicant did not authorise his change of address until after the hearing (on 21 April 2011) and that the change of address in fact provided the same address as had been provided for the agent. However it noted that the response to hearing invitation form had been returned stating that the applicant would appear at the hearing. The Tribunal was satisfied that the applicant was aware of the date, time and place for the hearing and pursuant to s.426A of the Migration Act 1958 (Cth) (the Act) decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
In its findings and reasons the Tribunal found that the applicant’s claims were general claims lacking in detail in many respects. In the absence of an opportunity to test the applicant’s claims and evidence at a hearing in a number of specified respects, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason.
The Tribunal detailed concerns it had about particular aspects of the applicant’s claims, including the fact that there was insufficient evidence for it to be satisfied that the applicant’s store was dismantled or, if it was, that this constituted persecution for a Convention reason. Further, having regard to the absence of specific evidence about the compensation claims said to have been made by the applicant, the Tribunal was not satisfied it had sufficient evidence to be satisfied the applicant was under-compensated or that any compensation received constituted Convention-related persecution.
The Tribunal detailed the applicant’s claims about harm that he claimed had occurred to him, including detention, but found it was not able to test his claims about an altercation and arrests or to “discuss with him such things as what his claimed signed confession said, the form of the three appeals [to the government], how he organised business owners, how he came to the conclusion he was being followed, why he thought he would be watched, how it would affect his son’s future or the details of how he discovered that the police were asking about him”. Having regard to such lack of evidence the Tribunal found that it “did not have sufficient evidence to be satisfied the applicant made any appeals to the government or was ever detained or suffered any other harm in relation to any demolition or compensation or for any other reason”.
Given the Tribunal’s lack of satisfaction that the applicant had previously protested against any government decision, been detained or suffered any other harm, the Tribunal found that he would not engage in any future conduct that would lead to him suffering any future harm in relation to such claims.
The Tribunal found that as the applicant’s vague and generalised claims about not being able to express his opinion were not particularised and could not be explored at hearing it was not satisfied on the available evidence that the applicant had been politically active in the past or that he would be so active in the future. Nor was it satisfied on the available evidence that the applicant was or had been of interest to the Chinese authorities as a consequence of real or imputed political opinion, that he had any involvement in political activities in the past or any interest in involving himself in the future. The Tribunal was not satisfied that the applicant faced a real chance of persecution for any Convention reason or that he had a well-founded fear of Convention-related persecution in China in the reasonably foreseeable future.
It affirmed the decision of the delegate.
The applicant sought review by application filed in this court on 17 May 2011. The application contains three generally expressed and unparticularised grounds. They are that the Tribunal “considered [the applicant’s] case unfairly” and doubted his claim “without substantive evidence”, that procedural fairness was “denied by the Tribunal” and that the Tribunal “did not consider [his] situation in China” and that he would be put in gaol if he went back.
In an accompanying affidavit the applicant claimed that he “need religiou freedom” (sic) and he “fear to go back to China”. Notwithstanding the completely different nature of the claims made by the applicant in connection with his protection visa application there was no explanation for the claim about a need for religious freedom. In any event it seeks impermissible merits review.
In the hearing today the applicant (who did not file written submissions) claimed for the first time that he did not receive the invitation to the Tribunal hearing, that he was not aware of it and that his adviser had been negligent. He also sought to reiterate aspects of his claims about what he said occurred to him in China.
I have considered the matters raised by the applicant in his application and also the issues that he raised today in oral submissions insofar as it is possible to do so on the evidence before the court. It is convenient to consider the grounds in the application first. The first ground is that the Tribunal considered the case unfairly and doubted the applicant’s claim without substantive evidence. In oral submissions the applicant elaborated on this ground by claiming that the Tribunal made a very “perfunctory” assessment of the materials he provided. He appeared to submit that the Tribunal used third party information to decide that he had not been subject to persecution in China and that it did not carefully look into the material that he had provided.
Insofar as the applicant appeared to claim that he had provided the Department with a copy of a detention certificate, there is no such material before the court. I note to the contrary that the Tribunal recorded that in the Departmental interview, when asked if he had any evidence of detention or that the police came to his home, the applicant told the delegate that he had a certificate which was in China. He told the court that he had provided such a certificate to his migration agent. This evidence is not such as to establish that there was material before the Tribunal to which the Tribunal failed to have regard in a manner that might give rise to a jurisdictional error.
As to the claim that the Tribunal considered the case unfairly, there is no evidence that the Tribunal acted unfairly in relation to its review. Insofar as this may be taken to be an allegation of actual or apprehended bias, it is not made out. It is a rare case in which bias will be established on the Tribunal reasons for decision alone. Such an allegation is a serious allegation that must be distinctly made and clearly proved. There is nothing in the evidence before the court to establish or indeed to suggest either actual or apprehended bias in the sense considered by the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 or in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28.
Insofar as the applicant asserted that there was some obligation on the Tribunal to produce evidence to refute his claims, that is not the case. It is for an applicant to put evidence before the Tribunal in support of his claims and for the Tribunal to consider his case. There is nothing in the circumstances of this case to give rise to any duty to inquire on the part of the Tribunal (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39). Ground 1 is not made out.
The second ground is a bald allegation that the Tribunal denied the applicant procedural fairness. In oral submissions the applicant initially started to explain that he was in Queensland and that there had been a flood in January and that he could not make it to the hearing. However, having regard to the time at which these events occurred, this can only be a reference to the Departmental interview which occurred by telephone link in January 2011 consistent with material before the court indicating that the original Departmental interview scheduled to be held in Brisbane was cancelled due to the flood situation. The applicant agreed to attend a telephone interview. In any event, this relates to the Departmental interview and does not establish any jurisdictional error or lack of procedural fairness on the part of the Tribunal.
The applicant raised a claim that he did not receive any notification of the Tribunal hearing scheduled for 15 April 2011 due to a “certain fact” on which he did not elaborate. He claimed generally that his migration agent had been negligent, that at the time of the hearing invitation letter he had already moved to Queensland, that he had not received the letter and that the invitation had not been passed on to him. The applicant has not put any evidence in this respect before the court.
In any event I am satisfied on the material before the court that the Tribunal complied with its obligation to invite the applicant to a hearing in accordance with s.425 of the Migration Act and with its procedural obligations in that respect. The notice of invitation to appear (being the letter of 15 March 2011) contains the requirements specified in s.425A of the Act. It was sent by registered post to the address for service provided by the applicant in his application for review. The address for service he provided was the address of the migration agent whom he had appointed as his authorised recipient.
At the time of the letter an authorised recipient had been appointed (see s.441G of the Act) and accordingly the Tribunal was under an obligation to give the authorised recipient (instead of the applicant) any document that it would otherwise have given to the applicant. Under s.441G(2) if the Tribunal gives a document to the authorised recipient, it is taken to have given the document to the applicant. An applicant may vary or withdraw the notice of authorised recipient. However he had not done so at the time of the hearing invitation.
I am satisfied on the basis of the affidavit of Ms Laura Frances Weston affirmed on 8 November 2011 that the Tribunal hearing invitation contained in the covering letter addressed to the applicant’s authorised recipient was dispatched within three working days of the date of that letter in accordance with s.441A(4) of the Migration Act.
As the solicitor for the first respondent quite properly drew to the attention of the court, the postal log annexed to that affidavit contains the correct name of the authorised recipient and the correct postal address. However it also contains a handwritten registered post number which is the same as the registered post number on the hearing invitation letter except for the omission of two digits in a 12 digit number. The registered post number on the copy letter in the court book is 569897914017 whereas the form has been completed with the number 5698914017. The Tribunal received a response to this letter on 18 March 2011.
Notwithstanding the omission of two digits from the middle of the registered post number, I am satisfied on all the evidence before the court that the hearing invitation letter was dispatched by prepaid post within s.441A(4)(a) of the Migration Act and that it was properly sent to the person who had been nominated as authorised recipient for the applicant as at the date of that letter (cf Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 267; [2009] HCA 37. Accordingly pursuant to s.441C(4)(a) the applicant was, through his authorised recipient, taken to have received the document seven working days after the date of that document. That is so whether or not he actually received it. In Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 while considering provisions in relation to the Minister giving documents to an applicant, Spender J expressed the view at [70] that the same considerations about a person being taken to have received a document whether or not he actually received it applied to s.441C(4) of the Act. Also see Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172.
In these circumstances, whether or not the applicant actually received the hearing invitation letter, the Tribunal complied with its obligations. It was open to the Tribunal pursuant to s.426A of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it given that he had been properly invited to a hearing and had not appeared on the date, time or place at which he was scheduled to appear. The Tribunal, as is apparent from its reasons for decision, considered whether to proceed in that manner. It had regard to the agent’s indication that she did not wish to receive correspondence for the applicant and to the later change of address form as well as the response to hearing invitation form stating that the applicant would attend the hearing.
In such circumstances the inevitable consequence of the applicant’s failure to appear at the hearing was, as discussed in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287, that the Tribunal could not reach the requisite level of satisfaction.
The applicant sought to raise a concern about the conduct of his migration agent. Taking at its highest what he said to the court, it is not such as to establish fraud on the part of the migration agent in the sense considered in SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35. The claimed failure to inform the applicant of the time, date or place of the hearing, whether involving negligence or inadvertence, does not establish fraud on the Tribunal (see SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 and SZNNJ v Minister for Immigration and Citizenship [2009] FCA 1356). The complaints that the applicant makes in this respect are not such as to establish fraud on the Tribunal in the manner considered in SZFDE.
No failure to accord procedural fairness or other jurisdictional error arising out of the concerns expressed by the applicant in relation to his failure to attend the Tribunal hearing is established on the material before the court.
The final ground is that the Tribunal “did not consider [the applicant’s] situation in China” and that he would be “put in jail” if he returned. The Tribunal’s reasons for decision reveal that it had regard to all the integers of the applicant’s claims. He did not make further claims to the Tribunal and insofar as this ground seeks merits review, merits review is not available in this court.
Moreover the Tribunal specifically addressed the possibility of future harm if the applicant were to return to China in the manner set out above, based on the findings that it had made as to its lack of satisfaction that he had been politically active in the past or would be active in the future and also its lack of satisfaction on the limited evidence before it that he had suffered any harm in the manner in which he claimed. No jurisdictional error is established on the basis contended for in ground three of the application.
As no jurisdictional error has been established the application must be dismissed.
The applicant has been unsuccessful. The Minister seeks costs in the sum of $4,500. The applicant claims that this is quite unfair to him. However his dissatisfaction with his lack of success in these proceedings or more generally with what occurred before the Tribunal is not a reason for departing 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 thirty-five (35) paragraphs are a true copy of the reasons for judgment of Barnes FM.
Date: 28 November 2011
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