WZAOB v Minister for Immigration
[2010] FMCA 868
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAOB v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 868 |
| MIGRATION – Protection visa application – Chinese national – alleged Falun Gong practitioner – judicial review – whether jurisdictional error – whether denial of procedural fairness. |
| Migration Act 1958 (Cth), ss.65(1), 424A, 425, 425A, 426A, 441A(4), 441C(4) Migration Regulations 1994 (Cth), reg.4.35D(b) |
| Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492; [2004] FCAFC 283 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 SZFGD v Minister for Immigration and Anor [2006] FMCA 99 SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62 SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159; [2006] FCA 1295 SZNNL v Minister for Immigration [2009] FMCA 714 |
| Applicant: | WZAOB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 105 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 5 November 2010 |
| Date of Last Submission: | 5 November 2010 |
| Delivered at: | Perth |
| Delivered on: | 10 November 2010 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr D Estrin |
| Solicitors for Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 105 of 2010
| WZAOB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of the People’s Republic of China who first entered Australia on a visitor visa on 7 April 2008. She departed Australia on 12 April 2008. She returned on 15 April 2008. She departed again on 17 April 2008. On 26 March 2009 the applicant was granted another visitor visa, and on that visitor visa she arrived in Australia on 16 September 2009.
On 10 December 2009 the applicant applied for a Protection (Class XA) visa.[1] The applicant claimed persecution arising from her membership and practice of Falun Gong.
[1] “protection visa application”; CB 1-28.
The Department of Immigration and Citizenship[2] wrote to the applicant on 22 February 2010, inviting her to attend an interview on 8 March 2010.[3] She failed to attend the interview, and on 8 March 2010 a delegate of the Minister for Immigration and Citizenship[4] refused the protection visa application.[5]
[2] “Department”.
[3] CB 31.
[4] “delegate”.
[5] “delegate’s decision”; CB 49-55.
The applicant applied on 8 April 2010 for a review of the delegate’s decision by the Refugee Review Tribunal.[6]
[6] “Tribunal”; CB 56-59.
The Tribunal wrote to the applicant on 22 April 2010[7] inviting her comments on the following information:
a)her migration history;
b)her failure to seek protection during her first visit to Australia;
c)her delay in departing China after the grant of her second visitor visa; and
d)her delay in seeking protection.[8]
[7] Pursuant to the Migration Act1958 (Cth), s.424A (“Migration Act”).
[8] “s.424A Letter”; CB 78-79.
The information was said to be relevant because it may cause the Tribunal to find that the applicant:
a)did not have a genuine fear of persecution in China; and
b)had not been truthful in her claims concerning events in China.[9]
[9] CB 78.
The applicant did not respond to the s.424A Letter.
On 22 April 2010, the Tribunal also invited the applicant to attend a hearing on 27 May 2010.[10] The s.425 Invitation was sent by the Tribunal to the last address provided by the applicant to the Tribunal, at PO BOX 297 Haymarket, NSW.[11] No response was received by the Tribunal.
[10] “s.425 Invitation”; CB 71-72.
[11] CB 58.
There was no appearance by the applicant before the Tribunal on the scheduled day of hearing, 27 May 2010. The Tribunal, as it is entitled to do, decided to make its decision without taking any further action to enable the applicant to appear before it.[12]
[12] Migration Act, s.426A.
On 28 May 2010, the Tribunal affirmed the delegate’s decision to refuse to grant a protection visa to the applicant.[13]
[13] “Tribunal Decision”; CB 89-99.
Tribunal Decision
The Tribunal found that the applicant’s claims were vague and lacking in detail.[14]
[14] CB 97 at [32].
The Tribunal noted that:
a)the applicant’s failure to attend the hearing denied the Tribunal an opportunity to test her claims;[15] and
b)the applicant:
i)had provided very little detail about the nature and circumstance of her purported practice of Falun Gong, or her dealings with the authorities;
ii)was unclear as to how her practice of Falun Gong came to the attention of the authorities;
iii)provided little information about her purported detention in 2009; and
iv)provided no information about her practice of Falun Gong in Australia.[16]
[15] CB 97 at [29].
[16] CB 97 at [32].
The Tribunal noted a number of inconsistencies between the protection visa application form and the applicant’s written statement, attached at the end of the protection visa application.[17] These were identified as:
[17] CB 98 at [33].
a)(i) a statement on the applicant’s protection visa application form that she has not committed, or been convicted of, a crime or offence in any country, and has not been charged with any offence currently awaiting action;[18]
[18] CB 22.
(ii) her written statement stated that she was detained in August 2009 for three months;[19]
[19] CB 25.
b)(i) in her application form, the applicant stated that she worked as an accountant until November 2009;[20]
[20] CB 15.
(ii) in her written statement she claimed that in August 2009 she was detained for three months and sacked by her employer;[21]
c)(i) in her written statement, the applicant stated that she was detained for three months in August 2009;[22]
(ii) a photocopy of her passport revealed that it was renewed on 17 August 2009;[23]
d)(i) in her application form, the applicant stated that she had no difficulty obtaining her passport;[24]
(ii) in her written statement she claims she bribed a government official to apply for the passport.[25]
[21] CB 25.
[22] CB 25.
[23] CB 26.
[24] CB 20.
[25] CB 25.
The Tribunal also noted that:
a)electronic records indicated that the applicant had travelled to Australia twice in April 2008[26] and had not sought protection during those visits;[27] and
b)the applicant’s last arrival had been in September 2009 but she had not sought protection until three months later in December 2009.[28]
[26] CB 62.
[27] CB 98 at [34].
[28] CB 98 at [34].
The Tribunal considered that the applicant might have been expected to have sought protection at the first available opportunity, and further said the applicant did not explain the delay in seeking protection.[29]
[29] CB 98 at [34].
On the basis of the very limited information available to the Tribunal, the Tribunal did not accept that the applicant:
a)was, or ever had been, a Falun Gong practitioner either in China or Australia;
b)had any association with other Falun Gong practitioners;
c)had come to the attention of authorities as a Falun Gong practitioner or as a person associated with other Falun Gong practitioners;
d)had been warned, detained or dismissed from employment;
e)had left China to avoid persecution; or
f)had any difficulty obtaining a passport.[30]
[30] CB 98 at [35].
The Tribunal also found that the applicant would not be likely to engage in the practice of Falun Gong, or associate with other Falun Gong practitioners, if she returned to China.[31]
[31] CB 98 at [36].
Jurisdictional error
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error.[32] An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[33]
[32] 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 para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[33] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
Grounds of application
There are three grounds for the applicant’s application, as follows:
a)the Tribunal Decision involved an important exercise of the power conferred by the Migration Act and Migration Regulations 1994 (Cth);[34]
b)there was no evidence or other material to justify the making of the Tribunal Decision; and
c)that she was a “real Falun Gong practitioner, … tortured by my original government.”
Applicant’s grounds
[34] “Migration Regulations”.
Ground 1
Ground 1 does not raise any legal ground of review. There is therefore no jurisdictional error disclosed by ground 1.
Ground 2
It is for an applicant to advance whatever evidence or argument she wishes to advance in support of a contention of having a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.[35]
[35] Abebe v Commonwealth (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ; [1999] HCA 14 at para.187 per Gummow and Hayne JJ; SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 at para.11 per Jacobson J.
Section 65(1) of the Migration Act requires the Tribunal to refuse the appellant’s application for a protection visa in circumstances where the Tribunal is not affirmatively satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa have been established.[36]
[36] SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62 at paras.13-14 per Greenwood J; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at para.15 per Ryan, Jacobson and Lander JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at para.17 per Black CJ, Sundberg and Bennett JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The Tribunal determined the matter on the evidence before it. The Tribunal was not satisfied on the basis of the evidence before it that the applicant’s claims had been made out. That finding was open to the Tribunal. The Tribunal Decision does not exhibit any jurisdictional error.
The applicant’s application was rejected because, amongst other reasons, she failed to appear before the Tribunal and address any concerns it may have had about her claims.[37] Where, as here, an applicant fails to attend a Tribunal hearing, upon an invitation to attend, rejection of the application is an “inevitable consequence” of the non-attendance.[38]
[37] S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492 at 493 onwards per Ryan, Merkel and Conti JJ; [2004] FCAFC 283 at para.25 onwards per Ryan, Merkel and Conti JJ.
[38] NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at para.5 per French, Emmett and Dowsett JJ; see also SZFGD v Minister for Immigration and Anor [2006] FMCA 99 at para.13 per Nicholls FM.
Ground 3
Ground 3 of the application is an impermissible attempt at merits review. The Tribunal fully considered all the applicant’s claims and based its decision on the information available. The applicant did not take up the opportunity to elaborate on her claims in person before the Tribunal. The Tribunal was therefore entitled to come to the conclusion that the applicant’s claims were “vague and lacking in detail”.[39]
[39] CB 97 at [32].
Conclusion – jurisdictional error
Based on a lack of detailed information, and the applicant’s failure to attend at the Tribunal hearing, the Tribunal was not satisfied that certain facts existed, in order to meet the criteria for the grant of a protection visa. Jurisdictional error is not established.
Compliance with procedural fairness
The applicant did not raise procedural fairness as a ground of appeal, and there is no evidence before the Court of any denial of procedural fairness. At hearing the applicant asserted that she did not receive the s.425 Invitation because the overseas student who was collecting her mail did not pass the Tribunal’s letter on to her.
Section 424A of the Migration Act provides that the Tribunal must:
a)give to the applicant clear particulars of any information that the Tribunal considers would be the reason for affirming the decision under review;
b)ensure that the applicant understands why the information is relevant to the review; and
c)provide the applicant with an opportunity to comment on or respond to the information.
On 22 April 2010, the Tribunal provided the applicant with the s.424A Letter inviting her to comment on “information”.[40] The Tribunal received no response from the applicant.
[40] CB 78-79.
Section 425 of the Migration Act requires the Tribunal to invite the applicant to appear before it to present arguments and give evidence.
Section 441A(4)(c)(i) of the Migration Act allows the Tribunal to dispatch the s.425 invitation by prepaid post to the “last address for service provided to the Tribunal by the recipient in connection with the review”.
On 22 April 2010, the Tribunal invited the applicant to attend a hearing on 27 May 2010.[41] The s.425 Invitation was sent by the Tribunal to the last address provided by the applicant to the Tribunal at PO BOX 297 Haymarket, NSW,[42] in accordance with s.441A(4)(c)(i) of the Migration Act.
[41] CB 71-72.
[42] CB 58.
A document given to a person by a method specified in s.441A(4) of the Migration Act to an address in Australia, is taken to have been received by the person seven working days after the date of the document.[43] The applicant is therefore taken to have received the s.425 Invitation on 4 May 2010. The deemed receipt on this date gave the applicant more than the prescribed minimum 14 day period of notice for her attendance at the Tribunal hearing on 27 May 2010.[44]
[43] Migration Act, s.441C(4)(a).
[44] Migration Act, s.425A; Migration Regulations, reg.4.35D(b).
Section 426A(1) of the Migration Act provides that:
If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Section 426A(1) of the Migration Act allows the Tribunal to proceed to make a decision without appearance by the applicant, and without the Tribunal attempting to contact the applicant by telephone.[45] The Tribunal did proceed to make a decision without appearance by the applicant at the hearing of the applicant’s application, and, in any event, the applicant had not provided the Tribunal with a contact telephone number.
[45] SZNNL v Minister for Immigration [2009] FMCA 714 at para.31 per Lucev FM, citing SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159 at 171-172; [2006] FCA 1295 at paras.62-67 per Rares J, and NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 at para.24 per Greenwood J.
Even assuming that the facts are as asserted by the applicant in relation to her alleged non-receipt of the invitation to the Tribunal hearing, no denial of procedural fairness occurred.
Conclusion
The Tribunal Decision is not affected by jurisdictional error. The application will be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 10 November 2010
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