WZAOC v Minister for Immigration and Citizenship

[2011] FCA 163

FEDERAL COURT OF AUSTRALIA

WZAOC v Minister for Immigration and Citizenship [2011] FCA 163

Citation:		WZAOC v Minister for Immigration and Citizenship [2011] FCA 163
Appeal from:		WZAOC v Minister for Immigration & Anor [2010] FMCA 869
Parties:		WZAOC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		WAD 370 of 2010
Judge:		NORTH J
Date of judgment:		21 February 2011
Date of hearing:	21 February 2011
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	17
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Mr D Estrin
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 370 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

WZAOC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	21 FEBRUARY 2011
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal is dismissed;

2.The appellant pay the first respondent’s costs of the appeal;

THE COURT DIRECTS THAT:

3.Any reference in the transcript of proceedings to the name of the appellant  be replaced the words “the appellant.”   

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 370 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

WZAOC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	21 FEBRUARY 2011
PLACE:	PERTH

REASONS FOR JUDGMENT

1. Before the Court is an appeal against the decision of the Federal Magistrates Court delivered by Lucev FM on 10 November 2010.  The federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 9 June 2010.  The Tribunal affirmed a decision of the delegate of the first respondent not to grant the appellant a protection visa. 

   THE CLAIMS

2. The appellant was born in 1959 and came to Australia in September 2009 on a tourist visa.  She is a citizen of China and claims to fear persecution on account of her practice of Falun Gong.

3. In a written statement accompanying her visa application, the appellant claimed that she started learning Falun Gong in 1996.  She said she introduced Falun Gong to her relatives, friends and former colleagues.  She claimed that at the end of 1999 she was detained by the police for almost a month and tortured by sleep deprivation and physical abuse.  She was also forced in detention to renounce her practice of Falun Gong.  In her statement she said that she fears that the government would strike against Falun Gong practitioners.  She said that friends suggested that she come to Australia to avoid these troubles.

4. The appellant was invited to attend an interview with the delegate of the first respondent.  She did not attend and she did not provide any reason for her non-attendance.

   THE DECISION OF THE TRIBUNAL

5. The appellant filed an application for review of the decision of the delegate in the Tribunal.  On 12 April 2010, the Tribunal invited the appellant to a hearing.  The letter was addressed to the address for correspondence indicated in the application for review.  The appellant did not attend the hearing before the Tribunal.  On 9 June 2010, the Tribunal made its decision.  The essence of its reasoning was as follows:

   27.The applicant claims to have suffered serious harm in the past for reason of her religious and political beliefs, real or imputed, as a practitioner of Falun Gong.  She claims that she was detained by the authorities for almost a month in 1999, and gives a description of her mistreatment in some detail.  She does not, however, give any details about the circumstances which led to her arrest, nor any details about the arrest itself.  She provides no supporting documentation of her claims of serious harm.  In addition, the applicant gives no information about her experiences from 1999 until she left China in 2009, including an explanation about what prompted her to leave China for Australia almost ten years after the harm she alleges was done to her.  The only information she gives about this ten year period is a statement that she was required to report to the local police station every day after her release from detention.  She does not state whether in fact she reported as required, and gives no information about her treatment when she reported, or alternatively failed to do so.  The applicant has therefore failed to provide a very substantial amount of relevant information about her claims.  On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past in China within the meaning of the Convention.

   28.The Tribunal has considered on the evidence before it whether there is a real chance that the applicant will be persecuted within the meaning of the Convention if she returns to China in the foreseeable future.  She did not elect to attend an interview with the Department to give evidence about her claims, nor did she attend a Tribunal hearing in which she might have had the opportunity to provide necessary details of her claim.  In these circumstances, a number of relevant questions about her claims remain unanswered, as indicated above, and the Tribunal cannot be satisfied that the claims already made by her are credible, such that she might be at risk of Convention-based persecution if she returns to China in the foreseeable future.  The Tribunal is not satisfied on the evidence before it that there is a real chance that the applicant will be persecuted in a Convention sense if she returns to China in the foreseeable future.

6. By letter dated 9 June 2010, the Tribunal notified the appellant of the decision.  That letter was also addressed to the address for correspondence contained in the application for review.

   THE JUDGMENT OF THE FEDERAL MAGISTRATES COURT

7. The appellant then filed an application for review in the Federal Magistrates Court on the grounds:

   (1)that the Tribunal had not adequately taken into consideration the applicant’s claims in her application for refugee status;

   (2)       that the Tribunal ignored relevant considerations; and

   (3)that there had been a constructive failure of the Tribunal to exercise jurisdiction. 

8. The federal magistrate said at [13]:

   The applicant’s grounds lack substance.  Ground 1 is an impermissible attack upon the merits of the Tribunal’s decision.  Ground 2 does not identify the relevant considerations allegedly ignored.  Ground 3 is a conclusion which does not state the ground on which it is based.

9. The federal magistrate explained that the appellant’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.  He said that the Tribunal fully considered the claims made and based its decision on the information available, even though that information was sparse.  Then at [18], the federal magistrate said:

   The applicant did not take the opportunity to elaborate on her claims in person before the Tribunal and the Tribunal was entitled to consider that the applicant’s claims lacked detail.  It was clearly open to the Tribunal to remain unsatisfied, on the evidence before it, that the applicant had a well-founded fear of persecution in China for a Convention reason.  The Tribunal’s failure to be satisfied was based on a lack of detailed information and does not disclose jurisdictional error.  In the circumstances it is an unsurprising outcome.

10. The federal magistrate then noted that the appellant did not raise procedural fairness as a ground of appeal and said there was no evidence before the Court of any denial of procedural fairness. He dealt with an argument raised by the appellant that she did not receive the invitation letter, under s 425 of the Migration Act 1958 (Cth) (the Act), because the overseas student who was collecting her mail did not pass the Tribunal’s letter to her. The federal magistrate referred to the requirements of s 425 of the Act. He also referred to s 441A(4)(c)(i) of the Act which allows the Tribunal to despatch 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”. He said that the letter of invitation dated 12 April 2010, had been sent in accordance with the section.

11. The federal magistrate then said that the provisions of s 441A(4) of the Act mean that the letter was taken to have been received by the appellant on 21 April, that is to say, more than the prescribed minimum 14 days before the hearing on 8 June 2010. He then said that s 426A(1) of the Act allowed the Tribunal to proceed to make a decision without the appearance of the appellant and the Tribunal acted under this provision. He concluded that even if the facts asserted by the appellant were true, that she did not receive the s 425 invitation letter, no denial of procedural fairness occurred.

    THE NOTICE OF APPEAL

12. The appellant then filed a notice of appeal in this Court.  The grounds of appeal were stated as follows:

    1.Federal Magistrate Lucev FM has not adequately taken into consideration the applicant’s claim in her application for Refugee Visa.

    2.Federal Magistrate Lucev has ignored relevant consideration in making the decision.

    3.There has been a constructive failure by the Magistrate Court to exercise jurisdiction.

    CONSIDERATION

13. The first ground of appeal is not supported by the facts.  It is apparent from the judgement of the federal magistrate that he took into consideration the appellant’s claims insofar as that fell within his function.  In all likelihood, the ground is meant to invite the Court to reassess the facts, and like the similarly worded ground dealt with by the federal magistrate, would then be an impermissible attack on the merits of the Tribunal’s decision. 

14. The second ground of review again mirrors the second ground of appeal, although directed to the federal magistrate rather than the Tribunal.  It fails for the same reason.  It does not particularise the considerations said to have been ignored. 

15. The third ground also mirrors the third ground of review before the federal magistrate, except that it is directed to the federal magistrate rather than the Tribunal.  It is unparticularised and, in any event, is not appropriate to the role of the Magistrates Court.  Ordinarily, it would be the type of ground directed to the decision of the Tribunal.  If that is what was intended, it fails to state the ground and none is obvious. 

16. The appellant appeared at the hearing of the appeal, assisted by an interpreter in Mandarin.  When asked to explain her grounds of appeal, she said that the government would harm Falun Gong practitioners.   Again, this appears an impermissible attempt to engage this Court in an examination of the facts of the claim. 

17. When asked by the Court why she did not attend the hearing before the Tribunal, she said that she was receiving assistance from an overseas student because her English is poor, and she received no notice of the hearing because the student was away at the time.  The federal magistrate dealt with a similar argument and correctly determined that even if the appellant did not receive the invitation letter, no denial of procedural fairness occurred.  For those reasons, the appeal will be dismissed. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       1 March 2011