WZANN v Minister for Immigration and Anor (No.2)

[2009] FMCA 802

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZANN v MINISTER FOR IMMIGRATION & ANOR (No.2) [2009] FMCA 802

MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizen of China claiming fear of persecution on the basis of religion – applicant claims to be a Christian – credibility – whether Tribunal failed to take relevant evidence into account – allegation of bias – Tribunal has no obligation to conduct its own investigations – no jurisdictional error.

Migration Act 1958 (Cth), ss.65, 91R, 91R(3), 424, 424A , 424A(1) 424A(3)(a), (b),(ba), 424B, 424C(1), 425, 425A, 426A, 427, 441A, 474

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291; [2006] FCAFC 107
SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693
SZNJT v Minister for Immigration & Anor [2009] FMCA 730
WZANN v Minister for Immigration & Anor [2009] FMCA 643

Applicant: WZANN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: PEG 34 of 2009

Judgment of: Scarlett FM

Hearing date: 12 August 2009

Date of Last Submission: 12 August 2009

Delivered at: Perth

Delivered on: 12 August 2009

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Mr S. Thackrah

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 34 of 2009

WZANN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons revised from transcript)

Application

1. The applicant is a citizen of the People’s Republic of China. He applies to the Court for review of a decision of the Refugee Review Tribunal signed on 19 February 2009. That decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant him a Protection (Class XA) visa. The applicant filed an application at this Court on 19 March 2009. In that application he asks for two orders:

   (1) that the decision of the Tribunal be quashed; and

   (2) that the matter be remitted to the Tribunal differently constituted to be determined according to law.

2. The Court has power to quash the decision of the Tribunal by way of an order in the nature of certiorari. It has power to remit the application to the Tribunal for determination according to law by means of an order in the nature of mandamus. It has been explained to the applicant, however, that in order to make those orders, the Court must be satisfied that the Tribunal decision is affected by jurisdictional error.[1] However, if the Court were to make an order in the nature of mandamus, remitting the application for a visa to the Tribunal, the Court would not make an order directing that the Tribunal should be differently constituted. The reason for that is that the constitution of the Tribunal is a matter for the Principal Member of the Tribunal and not for the Court.

   [1] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ

3. The Full Court of the Federal Court has expressed doubt that the Federal Magistrates Court has the power, on remitting an application to the Tribunal, to make any order relating to the constitution of the Tribunal.[2]

   [2] SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291; [2006] FCAFC 107

4. The applicant in his application has set out grounds by which he claims the Tribunal fell into error. In short, they can be summarised as:

   (1) a failure to take a relevant claim into account; and

   (2) that the decision was affected by bias.

5. I will deal with those grounds in due course.

Background

1. The background to this matter is that the applicant arrived in Australia on 11 July 2008. On 14 July 2008 he applied for a Protection (Class XA) visa. He applied on the basis of a well-founded fear of persecution based on his religious belief. He claimed to be a practising Christian and to have suffered persecution in China from people who would harm him because they object to his religious beliefs. Those people include local police and other local authorities. The applicant was invited to attend an interview with an officer of the Department of Immigration and Citizenship. That interview was scheduled for Wednesday, 8 October 2008. The applicant provided some written material in support of his claim, including a letter from the Reverend Dr Samuel Huang, a copy of his marriage certificate and birth certificate. The applicant attended the interview with the delegate.

2. On 17 October 2008, the delegate of the Minister refused a Protection (Class XA) visa. The delegate’s reasons are set out in the delegate’s decision record. The reasons why the delegate did not accept the applicant’s claim were doubts about the genuineness of his religious belief and about whether the applicant had been subject to persecution in the past. The delegate said:

   The applicant claims to be Christian and to fear persecution because of his religious beliefs. However, I have doubts about the genuineness of his religious beliefs and I am not satisfied that he has been subject to persecution in the past. The applicant’s understanding of Christianity was very basic, although he claimed to have been a Christian all his life…[3]

   [3] See Court Book at page 65.

3. The delegate went on to consider the applicant’s claim of having been persecuted. The delegate said:

   …He has not provided any evidence of serious harm, relating to his religious activities, although he has claimed that his house was trashed and that he was sought by the authorities since his departure. I have doubts about the applicant’s credibility in relation to these claims, particularly as the letter of support provided by his purported church is not genuine. He expressed some fear of harm if he returned to China, although he claimed the police had searched for him, he had not been detained or questioned in this past. He was able to obtain a passport in his name and leave the country which suggests that he is not of adverse interest to the Chinese authorities. Whilst country information indicates that Christians can be subject to harassment, in this case I am not satisfied that the applicant has subject to Convention-based harm in the past or that he is likely to be at risk in the immediately foreseeable future.[4]

   [4] See Court Book at page 65.

Application to the Refugee Review Tribunal

1. The applicant then applied to the Tribunal for review of that decision. In his application, he specified the names of four other people as applicants for review. They were his wife, his father, his mother and his son. However, none of these four people had applied for a protection visa, and quite clearly they could not be applicants for review of a decision of the Tribunal that affected only the applicant himself.

2. The Tribunal wrote to the applicant on 5 November 2008. The letter was headed “Acknowledgement of Application”, and it was a letter set out in a standard form. I understand that the form of that letter has since been changed.

3. However, at the time, the letter informed the applicant of what the Tribunal would do. It discussed whether he would be invited to a hearing, explained what a hearing was, explained that the Tribunal would inform him of the date and time of the hearing, and then set out three bullet points under the heading “What Does the Tribunal Expect Me to Do?”. The third bullet point said:

   ·Immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English should be translated by a qualified translator.[5]

   [5] See Court Book at page 71.

4. The significance of this letter will be discussed later.

5. The applicant advised the Tribunal, on 17 November 2008, of his change of contact details, giving a postal address in Western Australia. The following day, the Tribunal was constituted. A copy of the Notification of Constitution can be found in the Court Book at page 75. That notification shows that a Tribunal Member based in Perth would hear the application.

6. On 28 November 2008, the Tribunal wrote to the applicant inviting him to attend a hearing scheduled for 7 January 2009. That letter advised him that the hearing would take place in Perth and advised him that an interpreter would be provided in the Mandarin language. The applicant then submitted to the Tribunal a letter from the Reverend Doctor Samuel Huang and copies of other documents from the Chinese Presbyterian Church in Western Australia. He completed a response to hearing invitation indicating that he would need the services of an interpreter in the Mandarin language, and as for special needs, indicated, “I’m at Perth. I ask the hearing at Perth.”[6] I note that the Tribunal had already scheduled the hearing to take place at premises in Perth.

   [6] See Court Book at page 87.

7. The applicant provided to the Tribunal copies of documents headed “Certification”, prepared by other members of his church, certifying that he was a member of their local church who was a devout Christian, and setting out a brief summary of claims that the applicant had been beaten in China. The applicant attended the hearing on 7 January 2008 and gave evidence.

8. The Tribunal signed its decision on 19 February 2008, affirming the delegate’s decision not to grant the applicant a Protection (class XA) visa. The Tribunal decision record set out, under the heading “Claims and Evidence”, a summary of the applicant’s claims taken from his visa application. It also referred to documentation provided by the applicant after 23 December 2008, and also provided a summary of his evidence at the hearing. Unfortunately, there is an error in the subheading, because it refers to, “Applicant’s evidence at hearing on 7 January 2008”, when quite clearly the hearing took place on 7 January 2009.[7] The Tribunal’s summary of the applicant’s evidence was quite detailed and included a number of propositions put to the applicant indicating that the Tribunal had some doubts about the harm that he claimed to have suffered, and that he claimed to fear in the future if he were to return to China.

   [7] See Court Book at page 101.

9. The Tribunal also set out, under the heading “Country of Origin Information”, material taken from the internet about the treatment of Christians in Fujian province, which is the province the applicant came from, and about the treatment of non-returnees. That information stated that there was no information that family members of non-returnees face discrimination or ill-treatment in China if and when they return.[8]

   [8] See Court Book at page 106.

The Tribunal’s Findings and Reasons

1. In its findings and reasons, the Tribunal accepted that the applicant was a citizen of China, on the basis of his Chinese passport. The Tribunal found that the Convention ground of religion was the essential and significant reason for the harm that the applicant claimed to fear. However, the Tribunal was not satisfied that the applicant was in genuine fear of persecution or that there was a real chance of persecution on his return to China for any Convention grounds.

2. The Tribunal then set out a summary of the applicant’s claims. Essentially, the Tribunal did accept that the applicant was a Christian, and had been so for most, if not all, of his life. The Tribunal said:

   …The Tribunal accepts that the applicant was brought up in a Christian family and that he has some understanding of the Christian religion. The Tribunal also accepts that the applicant’s parents and grandmother were all Christians. The Tribunal accepts that the applicant and his family all attended church meetings in various homes in their village in Fujian province.[9]

   [9] See Court Book at page 107.

3. However, whilst the Tribunal accepted that an altercation had taken place between the applicant and local authorities in late 2003, where the applicant was pushed and threatened, it did not accept that he had suffered persecution within the meaning of s.91R of the Migration Act 1958 (Cth) as a result. In summary, after considering the evidence, the Tribunal accepted that the applicant was a Christian in China and had attended the Chinese Presbyterian Church in Western Australia soon after he arrived in Australia because he was a Christian.

4. The Tribunal accepted that the applicant did not engage in that conduct in Australia for the purpose of strengthening his claim to be a refugee. The Tribunal therefore considered the effect of subsection 91R(3) of the Migration Act, but was satisfied that the applicant’s church attendance was brought about for reasons of his religion and not for the purpose of strengthening his refugee claim. That meant, of course, that the Tribunal could take it into account. However, what the Tribunal did not accept was that the applicant’s religious practices would give rise to a real chance that he would be persecuted on his return to China for reason of that religion.

5. The Tribunal considered the applicant’s religious practice in China after the incident in 2003, and noted that after that time, the applicant was able to travel to Thailand and return to China without harm. The Tribunal also referred to the country of origin information, which tended to support the fact that in Fujian province, where the applicant’s family home is, that the practice of the Christian religion is generally tolerated. The Tribunal found:

   53.    The Tribunal accepts that the applicant may wish to continue to attend the Church and to engage in religious practices in China. The Tribunal finds that if the applicant will engage in religious activities in China, he will be able to do so in his hometown, as he had done in the past, and that he will be able to continue his religious activities. The Tribunal has rejected the applicant’s claim that he was persecuted for his membership of the Church or because of his association with other members of the Church, including his wife and parents…[10]

   [10] See Court Book at page 109, para.53.

6. For those reasons, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if he were to return to China and affirmed the decision not to grant him a Protection (Class XA) visa.

Application for judicial review

1. The applicant, in his application, sets out reasons why he claims that the Tribunal fell into error. I will quote the grounds in full:

   (1)     When I was a child, I have been a Christian of an unregistered church in my village. Our church members all joined the building of our own church hall, which was demolished by the local authorities. I was detained and threatened by the local authorities. The Refugee Review Tribunal didn’t accept my claims. The Tribunal member didn’t take all my claims into account.

   I believe that the Tribunal member had bias against me and failed to consider my application according to s.91R of the Migration Act 1958. So the Tribunal member made a jurisdictional error in making the decision of refusing my application for review of the decision of the Immigration Department.[11]

   [11] Transcribed from the Application under Migration Act, filed on 19 March 2009, with minor amendments as to spelling.

2. In effect, those grounds can be summarised as a claim that the Tribunal:

   (1) did not take relevant evidence into account; and

   (2) showed bias in considering his application.

3. If those grounds are made out, they could indeed constitute jurisdictional error.

Submissions

1. The applicant has attended Court today and has made oral submissions. He did not file a written outline of submissions. He was asked by the Court to explain in more detail the claims that he made in his application.

2. He confirmed that he took issue with the fact that the Tribunal did not accept his claim to have been persecuted or to fear persecution in the future. When asked which claims the Tribunal did not take into account he said that the Tribunal should have investigated his claims. He submitted that the Tribunal could not say that it did not believe what he had said before it had done any investigation.

3. As to the question of bias, he told the Court that the Tribunal Member did not consider his request and went ahead with the decision. He said that he had sent the Tribunal some photographs which demonstrated how his home property had been demolished, but the Tribunal Member said there was no damage. In his submissions, generally, the applicant complained that at the Tribunal hearing, the interpreter said that she had another appointment and had to go. Rather than adjourning the hearing, the Tribunal Member finished in a rush and the applicant claimed that that situation should have been avoided, and an interpreter booked for the hearing should be prepared to finish the hearing.

4. I have read the written submissions prepared on behalf of the Minister and I have heard oral submissions by Mr Thackrah who appeared for the Minister today. Basically, he submitted that the allegation of a failure to take relevant material into account could not be substantiated because the Tribunal decision record clearly shows that the Tribunal provided an extensive summary of the applicant’s claims, as can be seen by reading pages 100 through to 105 of the Court Book. Each of the claims made by the applicant, he said, were subject to specific findings by the Tribunal, and the reference to the altercation of the building of the church hall in 2003 was considered by the Tribunal but was not considered to constitute serious harm within the meaning of s.91R of the Migration Act.

5. The Tribunal did consider that the applicant had travelled to Thailand but had returned and remained living in China. The Tribunal did consider the applicant’s claim that in July 2008 his home was attacked and damaged by the Chinese authorities. It was also submitted that the applicant’s claim of bias could not be made out and that, despite the applicant’s claims, the Tribunal did consider the photographs tendered by the applicant showing the damage to his home.

6. It was also further submitted on behalf of the Minister that the Court should not follow the decision of the Federal Magistrates Court in SZNAV & Ors v Minister for Immigration & Anor,[12] but instead should prefer the decision of Smith FM in SZNJT v Minister for Immigration & Anor.[13] The submission was made that SZNAV was wrongly decided but SZNJT by contrast was correctly decided.

   [12] [2009] FMCA 693

   [13] [2009] FMCA 730

7. In reply, the applicant said that despite the Tribunal’s view that nothing had happened between the incidents in China in 2003 and 2008, that was only because he was away; if he had been caught, it may well have been different.

Considerations

1. In dealing with the applicant’s claims, I look first at the grounds raised in the application. The first ground claims a failure to take relevant material into account. I am not satisfied that that claim has been made out.

2. The Tribunal decision sets out in some detail the applicant’s claim when applying for the protection visa, the supporting material submitted and the applicant’s evidence at the Tribunal hearing. In my view, a fair reading of the Tribunal decision shows that the Tribunal comprehensively dealt with all aspects of the applicant’s claims. It is noteworthy indeed that despite the fact that the delegate of the Minister was not satisfied of the genuineness of the applicant’s Christian beliefs, the Tribunal was so satisfied. This was, partly at least, due to the additional information that the applicant submitted to the Tribunal for the purpose of the review.

1. What the Tribunal was not satisfied about was the applicant’s claim to have been persecuted within the meaning of the Migration Act whilst in China, for the reasons of his religion, or that he had a well‑founded fear of persecution if he were to return. In my view, the first ground has not been made out. 

2. The second ground is a claim of bias. It is well established that bias is a very serious allegation. It must be strictly alleged and strictly proved. There are a number of decisions, both at first instance and on appeal, relating to bias. In Minister for Immigration and Multicultural Affairs v Jia Legeng,[14] it was held that an allegation of bias would have to be “distinctly made and clearly proved.”[15] Their Honours went on to consider the question of bias, saying:

   71.    …Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.[16]

   [14] (2001) 205 CLR 507; [2001] HCA 17

   [15] CLR at 531 per Gleeson CJ and Gummow J; HCA at [69] per Gleeson CJ and Gummow J.

   [16] Jia Legeng CLR at 531 per Gleeson CJ and Gummow J; HCA at [71] per Gleeson CJ and Gummow J

3. Similarly, in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs,[17] von Doussa J said:

   38.    In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision.[18]

   [17] [2002] FCA 668

   [18] SCAA at [38] per von Doussa J. See also SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ, and SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, per Tamberlin, Mansfield and Jacobs JJ

4. In my view, no claim of bias has been made out. The applicant referred to the Tribunal not accepting the evidence of the photographs that he produced showing the damage to his home. Clearly, the Tribunal did consider those photographs, but was not satisfied that the photographs had the meaning that the applicant claimed that they did. It is of course well established that an adverse decision on the facts is not of itself any evidence of bias on the part of the decision-maker. I am not of the view that the claim of bias has been made out, and that ground has not been substantiated.

5. In his oral submissions to the Court, the applicant made the claim that the Tribunal should have investigated his claims and should not have rejected his claims until such an investigation had been carried out.

6. There are two answers to that. The first is that it is no part of the Tribunal’s duty to provide evidence contrary to an applicant’s claim. Section 65 of the Migration Act requires an applicant to satisfy the Minister, or in this case, the Tribunal standing in the shoes of the Minister, that the applicant is entitled to the visa. If the Tribunal, in this case, is not so satisfied, then the application should be refused. The second is that there is no general obligation on the part of the Tribunal to conduct its own investigations. Whilst there is a power under ss.424 and 427 of the Migration Act for the Tribunal to seek further information, it is accepted that there is no obligation on it to do so.[19]

   [19] See, in particular, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32.

7. In my view, the claim that the Tribunal should not have rejected the applicant’s claim prior to conducting any independent investigations is not a valid ground for review and has not been made out.

8. The applicant also, at the hearing before the Court, complained about the conduct of the hearing before the Tribunal, in that he said that the interpreter had indicated that she had another appointment and had to go, and that the Tribunal finished the hearing in a rush. He claimed that an interpreter at a tribunal hearing should be prepared to finish the hearing, and that that situation should have been avoided. In general terms, that statement can be accepted. It sometimes happens, however, that tribunal hearings take longer than is expected, and interpreters are very busy people and may have other interpreting commitments. That is a situation well known to this Court.

9. In this case, the claim about the conduct of the Tribunal hearing was not made until today, and was not referred to in the application for review. Again, there is no evidence of it; there is no transcript and no affidavit. Even if there were evidence that the Tribunal hearing had been finished in a rush, I am not satisfied that it has been made out that the applicant was in any way denied an opportunity to put his case. He had given evidence at the Tribunal hearing, and that evidence was summarised and thoroughly considered. He had provided written documents. It is clear that the Tribunal accepted the contents of some of those documents, at least as far as the applicant’s religious belief is concerned.

10. The Tribunal hearing took place on 7 January 2009. The decision was not signed until 19 February 2009. It was open to the applicant, if he considered that further material should have been considered by the Tribunal, to have made a post-hearing submission. He could have complained that the Tribunal hearing was unnecessarily truncated due to the need for the interpreter to go elsewhere. He did not do so. Had he made a post-hearing submission which was not considered by the Tribunal, then indeed he would have then argued more successfully a claim of failure to consider relevant material, however, no such submission was made. In my view, the complaint about an unnecessarily foreshortened hearing has not been substantiated, and there is no jurisdictional error.

11. I am mindful of the fact that the applicant is not legally represented. It is well known that it is not a privilege to be an unrepresented party before a court; it is a misfortune. Indeed, the applicant sought, and was granted, a referral to the pro bono panel of the Court’s registry here in Perth. Unfortunately, he was unable to obtain any such assistance. That is a matter that was considered on the last occasion before the Court by Lucev FM on 6 July 2009. It was one of the matters that the Court took into account in deciding to adjourn the hearing from 6 July 2009 until today.[20]

    [20] See WZANN v Minister for Immigration & Anor [2009] FMCA 643 at paras.1, 2, 3 and 5 per Lucev FM.

12. However, in the case of an unrepresented applicant, it is the practice of this Court to consider the Tribunal decision and the supporting material to see whether an arguable case for jurisdictional error has been made out. That would include a consideration of the sections contained in Division 4 of Part 7 of the Migration Act. I will deal with them out of order.

13. This is not a matter to which the provisions of s.424A of the Migration Act apply. The material considered by the Tribunal in order to arrive at its decision consisted of the applicant’s claims to the Department for a protection visa, the applicant’s evidence to the Tribunal and independent country information. All of that material is excluded from the operation of subsection 424A(1) by subsection 424A(3)(a), (b) and (ba).Consequently, there is no breach of s.424A of the Migration Act.

14. The Court must consider the operation of s.425 of the Migration Act, particularly as it has been considered by the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[21] In this case, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The letter of invitation was dated 28 November 2008. It related to a hearing scheduled to take place on 7 January 2009. The letter advised the applicant of the day on which, and the time and the place at which, he was scheduled to appear before the Tribunal.

    [21] (2006) 228 CLR 152; [2006] HCA 63

15. The letter was posted by registered post to the applicant’s postal address, which he had provided to the Tribunal in his change of contact details received by the Tribunal at its Melbourne registry on 17 November 2008. That was one of the methods specified in s.441A of the Migration Act. The period of notice given for the hearing was in excess of the prescribed period of notice. The letter of invitation to the hearing also told the applicant:

    …Please contact the Tribunal immediately if there is a difficulty in the hearing proceeding on this date. Please note that the Tribunal may make a decision without further notice, if an applicant invited to appear before the Tribunal fails to attend the scheduled hearing.[22]

    [22] See Court Book at page 76.

16. This quite clearly is a statement to the effect of the operation of s.426A of the Migration Act. The notice of invitation to appear before the Tribunal complies with s.425A of the Migration Act. The applicant, in his response to hearing invitation, asked for an interpreter in the Mandarin language. Such an interpreter was provided. Despite the applicant’s complaint that the interpreter had to go elsewhere, there is no evidence that anything put by the applicant to the Tribunal, or anything asked of the applicant by the Tribunal, was not satisfactorily interpreted. The High Court in SZBEL has also considered the fairness of the hearing under s.425 in relation to matters being dealt with at the hearing that had been the subject of a finding by the Minister’s delegate.

17. It would be a breach of s.425 if the delegate had accepted a part of the applicant’s claim but the Tribunal, without putting the applicant on notice, had proceeded not to accept that same part of the claim. That is not the case here, quite the reverse in fact. It will be recalled that the delegate had not been satisfied for two reasons. One being doubts about the genuineness of the applicant’s religious beliefs and the other being a failure to be satisfied that the applicant had been subject to persecution in the past.[23] The Tribunal, however, was satisfied about the genuineness of the applicant’s religious beliefs.[24] What the Tribunal was not satisfied about, similarly to the delegate, was the applicant’s claim to have been persecuted in the past and, therefore, to have a well-founded fear of persecution in the future.

    [23] See Court Book at page 65.

    [24] See Court Book at page 107, at [41]

18. I am satisfied, on the material before me, that the Tribunal hearing was conducted in a way that did not contravene s.425 of the Migration Act.

19. That leaves the Court to consider the requirements of ss.424 and 424B of the Migration Act. The reason for that consideration, specifically, has been brought about by the decision in SZNAV, to which I have previously referred. In that decision, Raphael FM found that a letter of acknowledgement sent to the applicant in a particular form was a letter written pursuant to s.424 of the Migration Act.

20. His Honour went on to find that there was jurisdictional error in that subsection 424B(2) had not been complied with.[25] I am aware of the fact that in a recent decision, SZNJT, to which I have previously referred, Smith FM respectfully disagreed with his Honour’s conclusions in SZNAV.

    [25] See SZNAV at [20], [21], [28], [30], [32] and [44] per Raphael FM.

21. The first thing that must be considered is whether the letter of acknowledgement came within the purview of the kind of error to which FM Raphael referred to in SZNAV. The letter of acknowledgement is set out in full in para.20 of the decision in SZNAV. The words that attracted criticism were under the heading “What Does the Tribunal Expect Me to do”, they were:

    20.… Immediately send us any documents, information or other evidence you want the Tribunal to consider.  Any documents not in English should be translated by a qualified translator.[26]

    [26] SZNAV at [20] per Raphael FM

22. As has been made clear, the wording of the acknowledgement letter sent by the Tribunal to the applicant on 5 November 2008 contains those same words.[27] It is my understanding that the Tribunal changed the wording of its standard form acknowledgement letter on a date in February 2009. However, it is clear that this letter dated 5 November 2008, in the old form, is essentially similar to the letter in SZNAV.

    [27] See Court Book at page 71.

23. What the Court must also consider is the wording of s.424 of the Migration Act as it was at that time. Now, it is a fact that s.424 of the Migration Act has been amended with effect from 15 March 2009. However, it is the former form of s.424 that was considered in SZNAV and it is clear that it is the former form of s.424 that is relevant in this case. As it stood, prior to 15 March 2009, s.424 of the Migration Act said, under the heading “Tribunal May Seek Additional Information”:

    (1)     In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review;

    (2)     Without limiting subsection (1), the Tribunal may invite a person to give additional information.

24. Subsection 424(3) is not relevant to these proceedings. The situation is, however, that the acknowledgement letter in the matter currently under review is essentially identical to the acknowledgement letter in SZNAV, and the form of s.424 in the matter under review is the same as in SZNAV. That matter was considered by Smith FM in SZNJT. In SZNJT his Honour disagreed with the reasoning in SZNAV. His Honour said:

    58. In this reasoning Raphael FM adopts a “robust application of the purposive doctrine of statutory construction”, and assumes that the getting of information from an applicant was intended by the legislature normally, if not always, to be performed through an invitation complying with the formalities of s.424(2). However, I do not agree with that reasoning, nor that such a policy can be distilled from s.424 or any other part of the Migration Act. As I have indicated, I consider that the Federal Court authorities tend against, rather than in support, of such an approach to the application of s.424(2).

    59.    I respectfully disagree that it is an approach which carries obvious benefits to review applicants before the Tribunal in terms of procedural fairness. The central right of procedural fairness under the Act concerns the important opportunity under s.425(1) “to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. That right is not at all assisted by the approach taken by Raphael FM, but in my opinion it may be significantly weakened.

    60. I consider that characterising the advice that the applicant should immediately forward his evidence to the Tribunal in the present acknowledgement letter as an invitation under s.424(2) brings a significant disadvantage to an applicant, even if ‘immediately’ had been replaced by ‘within 14 days’. The disadvantage arises from the provisions of s.425(2)(c) read with s.424C(1), by which an applicant loses his or her rights under s.425 if there is a failure to respond to a s.424(2) invitation within the specified time…[28]

    [28] SZNJT at [58]-[60] per Smith FM

25. His Honour went on to consider and find that the statement in the acknowledgement letter advising the applicant to immediately send any information he wanted the Tribunal to consider was not an invitation intended by s.424 to come within s.424(2). His Honour also accepted the contention:

    64.… that s.424(2) could not have been enlivened in the present case, because the acknowledgement letter cannot be construed as inviting the giving of any ‘additional’ information.[29]

    [29] SZNJT at [64] per Smith FM.

26. With the very greatest of respect, I agree with his Honour’s decision in SZNJT, which means that, with equally great respect, I do not agree with the contrary consideration in SZNAV. It is also significant, in my view, to consider the acknowledgement letter of the Tribunal from the point of view of the intention of the Tribunal in sending the letter. The intention, in my view, should be taken from the text of the letter. It is clear from a reading of the text of the letter of 5 November 2008 that it was not intended by the Tribunal to constitute a request for additional information under s.424 of the Act. It was a request to the applicant to get his case ready for the Tribunal. The very fact that it was not intended by the Tribunal to be a request for information under s.424 is reinforced by the Tribunal’s decision on 28 November 2008 to invite the applicant to attend a hearing under the provisions of s.425.

27. Had the letter been a request for additional information under the provisions of s.424, as it was at the time, then it would have been open to the Tribunal to apply the provision of subsection 424C(1) to make a decision on the review without taking any further action to obtain the additional information, because at that stage, the applicant did not provide any information; he did later. It is also noteworthy that the Tribunal was not asking for additional information, because at the time the applicant applied to the Tribunal, he did not provide any information, other than the copy of the decision record needed to show what decision was sought to be reviewed.

28. I am certainly of the view that the acknowledgement letter sent by the Tribunal was neither intended by the Tribunal to be a request for additional information under s.424 of the Migration Act, nor could it be characterised as such. Even if I am wrong on that point, and even if there were a jurisdictional error, in my view, it would have had no effect on the outcome of the proceedings. The applicant attended the hearing. He provided, prior to the hearing, some information in support of his case. It is clear that the Tribunal accepted the information about the applicant’s religious beliefs, and made a finding favourable to the applicant on that point. There was no disadvantage and no prejudice to the applicant whatsoever.

Conclusion

1. Unfortunately for the applicant, the Tribunal considered the evidence before it. It was not persuaded that he had a well-founded fear of persecution for the reason of his Christian religion or for any other Convention reason. I am satisfied that the Tribunal decision is not affected by jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision, as defined by s.474 of the Migration Act, and consequently it is not subject to orders in the nature of certiorari or mandamus, as the applicant seeks in his application. It follows that the application must be dismissed.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Deputy Associate:  Susan Dinon

Date:  20 August 2009