WZAOH v Minister for Immigration and Citizenship
[2011] FCA 888
•8 August 2011
FEDERAL COURT OF AUSTRALIA
WZAOH v Minister for Immigration and Citizenship [2011] FCA 888
Citation: WZAOH v Minister for Immigration and Citizenship [2011] FCA 888 Appeal from: WZAOH v Minister for Immigration & Anor [2011] FMCA 299 Parties: WZAOH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: WAD 174 of 2011 Judge: MCKERRACHER J Date of judgment: 8 August 2011 Date of hearing: 3 August 2011 Place: Perth Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 19 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: D Estrin Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 174 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: WZAOH
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
8 AUGUST 2011
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the first respondent’s costs of the appeal to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 174 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: WZAOH
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE:
8 AUGUST 2011
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
The appellant, a citizen of the People’s Republic of China, arrived in Australia on 12 September 2009 on a Temporary Student Guardian visa (TU-580 visa), which was granted on 27 August 2009. On 20 July 2010, she lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). She was granted an associated Bridging visa while the application was processed. A delegate of the first respondent (the Minister) refused the application on 25 October 2010. On 24 November 2010, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the delegate’s decision and the appellant sought review in the Federal Magistrates Court.
This is an appeal from the judgment of a Federal Magistrate delivered on 2 May 2011 (WZAOH v Minister for Immigration & Anor [2011] FMCA 299). His Honour dismissed the application for judicial review.
APPELLANT’S CLAIMS
The appellant claims to have a genuine fear of harm and persecution as a result of her membership and practice of Falun Gong which had been banned in China since 1999. She claimed to have studied and practised Falun Gong in public areas since March 1997 to improve her health. As a consequence, the appellant claimed that she had been called to the local police office to confess to learning, practising and spreading Falun Gong. She was also forced to attend re-educational classes where she was treated badly both physically and spiritually and forced to confess to wanting to ‘subvert the government and to conduct illegal religion activities’.
The appellant claimed that the she was uncertain of her future as a Falun Gong practitioner and feared that she would receive ‘severe punishment by the government’.
BEFORE THE TRIBUNAL
The Tribunal, being unable to make a decision favourable to the appellant on the basis of the material before it, invited the appellant to attend a hearing to give evidence and present arguments. The Tribunal invitation contained the following note:
Please note that the hearing has been schedule [scheduled] to take place in Melbourne. If you prefer to appear before the Tribunal in Sydney with a video-link to the Tribunal in Melbourne, please advise the Tribunal in writing by 21 December 2010.
The appellant did not respond to the invitation in any way and failed to appear either in person in Melbourne or by video-link from Sydney. As a consequence, the Tribunal noted (at [15]) that it was not able to clarify vague and unsubstantiated aspects of the appellant’s claims.
The Tribunal accepted that the appellant was a citizen of the People’s Republic of China. It was not satisfied that she was a Falun Gong practitioner, that she was forced to attend any re-education courses or that she experienced any difficulties or torture in China as a result of her alleged association with Falun Gong. Therefore, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for any Convention-related reason.
THE FEDERAL MAGISTRATE’S DECISION
Before the Federal Magistrate the appellant claimed that (without alteration):
1.The Tribunal committed a serious jurisdictional error by failing to notify the applicant of the hearing and proceeding to deal the matter in the absence of the applicant.
2.The Tribunal committed another jurisdictional error by failing to comply with the compulsory requirements of s 424 A of the Migration Act, with regard to country information.
3.The applicant seeks relief under the Act on the grounds that: The applicant is a citizen of China. If the applicant is deported from Australia they will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of Refugees and the 1976 Protocol relating to the Status of Refugees.
The learned Federal Magistrate noted that the appellant had not only been invited to appear before the Tribunal but also advised that it would be unable to make a decision favourable to her on the information then available to it. The invitation had been sent by registered post to the address expressly nominated by the appellant. His Honour considered (at [19]) the requirements of notification to have been met by the Tribunal. His Honour also stated that there was no obligation on the Tribunal to attempt to contact the appellant by telephone, and in this case that would have been futile as no telephone contact details were provided. Therefore, the Tribunal could proceed to make a decision without an appearance.
The Federal Magistrate considered ground 2 of the application to have been misconceived. The Tribunal did not rely on or refer to any country information to assess the appellants claim. Also, even if the Tribunal had relied on independent country information, it would not have been required to disclose it as the information would have fallen within the exception provided by s 424A(3)(a) of the Migration Act 1958 (Cth) (the Act). His Honour therefore held that ground 2 of the application must fail.
The learned Federal Magistrate noted (at [16]) that a Tribunal decision could only be set aside upon review if it involved jurisdictional error, a matter further reinforced with the appellant in this appeal. His Honour considered ground 3 to be a request for the Court to review the merits of the claim. It was open for the Tribunal to find the facts as it did and no jurisdictional error was established by ground 3.
As there was no jurisdictional error in the Tribunal decision, his Honour dismissed the application.
GROUNDS OF APPEAL
The grounds of appeal from the decision of the Federal Magistrates Court are:
1.The Federal Magistrate Lucev failed to consider the [Tribunal] committed a serious jurisdictional error by failing to notify the [appellant] of the hearing and proceeding to deal with the matter in the absence of the [appellant].
2.The Federal Magistrate Lucev failed to consider the [Tribunal] committed another jurisdictional error by failing to comply with the compulsory requirements of s 424A of the Migration Act.
3.The Federal Magistrate Lucev failed to consider that the [appellant] is a citizen of China. If she is deported from Australia she will be at risk of suffering persecution.
ANALYSIS
At the hearing before me the appellant stressed that she was very keen to stay in Australia. She asked for an extension of time in relation to her case so that she could be permitted to get a job, repay her debts and stay in Australia. She had been unwell.
Insofar as the existing grounds of appeal are concerned she said that everything she had said before was true. I asked her specifically to explain the basis of her refugee claim. In doing so, she made no reference, despite explaining several other matters, to the root cause of her claim being the fact that she was a Falun Gong practitioner. This was something only mentioned in reply when counsel for the Minister pointed that she had not relied in her explanation in open court on that fundamental aspect of her claim.
Additionally in reply she raised for the first time the point that she had been critically ill when the notice inviting her to appear before the Tribunal to explain her claim was received. This explanation does not appear to have been raised and is certainly not recorded, if it has been raised, on any previous occasion. There was no evidence in support of it other than the statement from the bar table.
In short, there was nothing at all raised at the hearing which would support a claim that there had been jurisdictional error at any point in the process, nor anything raised which supports a contention that the approach taken by the learned Federal Magistrate was incorrect in any way.
CONCLUSION
I am satisfied that his Honour’s approach was entirely correct and to repeat his Honour’s reasoning would be superfluous.
The following orders will be made:
1.The appeal be dismissed.
2.The appellant is to pay the first respondent’s costs of the appeal to be taxed if not agreed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 8 August 2011