FEDERAL COURT OF AUSTRALIA

SZECI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1201

SZECI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 27 of 2005

ALLSOP J

9 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

REASONS FOR JUDGMENT

1                     This is an appeal against orders of the Federal Magistrates Court dismissing an application for judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) which affirmed a decision of a delegate of the respondent Minister to refuse to grant the applicant a protection visa. 

2                     The background to the appellant’s claims is set out in [2], [3] and [4] of the Magistrate’s reasons which I gratefully adopt.

The applicant is a citizen of the People´s Republic of China who arrived in Australia on 11 March 2004. On 18 March 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Act"). On 25 March 2004 the delegate refused to grant a protection visa. The delegate´s reasons are set out in the Court Book ("CB") at pages 31-40. On 8 April 2004 the applicant applied to the Tribunal for a review of the delegate´s decision.

The applicant is a male born on 5 January 1961. He is married and comes from Tieling, Liaoning Province. The applicant completed ten years of schooling and described his usual occupation before coming to Australia as a factory director. He held the position of director in a food factory from 1984 to January 2004. In the applicant´s application for a protection visa, he disclosed that he had lived at the same address in Tieling from March 1985 until March 2004 when he left China and travelled to Australia. The applicant arrived in Australia on 11 March 2004 and applied for a protection visa one week after his arrival (CB pp.1-26).

The applicant´s claims for protection arise from his practice of Falun Gong. His claims for protection are contained in the short half page typed statement attached to the original application (CB p.29) and is again referred to in his application for review (CB p.49). The applicant stated he took up Falun Gong in 1998 to improve his health and as part of that activity and was involved in the distribution of leaflets about Falun Gong. The applicant stated that after the government banned Falun Gong activities in 1999 many members were persecuted. The applicant claimed to have been interrogated several times by the police and forced to write a confession that he would give up his Falun Gong beliefs. The applicant referred in general terms to the persecution of Falun Gong members and the confiscation of Falun Gong materials. He stated he became very scared when he heard some members of the movement had been persecuted and some had even died. The applicant sought protection so he did not have to return to China.

3                     The Tribunal had before it material in the applicant’s application and his supporting statement.  No further material had been provided in support of his claim for protection.

4                     On 8 April 2004 the Tribunal wrote to the applicant setting out the procedure of the Tribunal.  This letter made clear that the applicant may be invited to a hearing.

5                     On 23 April 2004 a further letter was sent to the applicant inviting him to a hearing on 23 June 2004.  This letter indicated that the date would only be changed for good reason.  The applicant responded by indicating that he would attend.  However, he did not attend.  There was no apparent explanation and there was no application for an adjournment.  The Tribunal thereafter wrote to the applicant and informed him of its decision together with providing its reasons.

6                     In its reasons the Tribunal stated the following:

In this case, the applicant has provided only the barest outline of what he fears may happen to him in China and why.  His claims amount to a series of assertions almost entirely lacking in any detail.  No details as to the specific nature and extent of his involvement in Falun Gong were provided.  Apart from his contention that he was interrogated several times and forced to sigh [sic] a confession giving up his belief he does not provide any information as to his actual dealings with the authorities or when those dealings occurred.  He has not provided any information as to what in particular led the authorities to display an interest in him in relation to Falun Gong.  He does not explain on what basis he believed that prior to his departure from China that the authorities suspected him of practising Falun Gong again.  Finally, there was no indication from the applicant as to whether he has continued his Falun Gong activities in Australia; and if not why not.

The applicant was put on notice by the primary decision of the reasons that the delegate was not satisfied he was a refugee, including that his claims lacked detail.  Notwithstanding these matters he has not provided any further information in support of his claims.

…

I have been unable to explore aspects of the applicant’s claims with him.  Therefore a number of relevant questions as to his actual experiences in China and Australia and the reliability of his claim to be a Falun Gong practitioner are left unanswered.  If there are further explanations, or answers to the questions raised by the applicant’s claims, they are not before me.  In my view the totality of the applicant’s claims amount to little more than several unsupported and vague assertions.  There is simply insufficient information before me from which I could be satisfied that the applicant has a well-founded fear of persecution for Convention purposes.

The applicant has been put on notice by the primary decision as to the reasons why the primary decision maker was not satisfied he was a refugee and that the material he had provided did not support a finding that he had a well-founded fear of Convention persecution.  He has also been put on notice that the Tribunal had been unable to make a decision in his favour on the information provided.  Notwithstanding these matter he has not provided any additional written or oral information to the Tribunal which would enable me to be satisfied that he has a well-founded fear of persecution for Convention purposes.

I am not satisfied on the evidence before me that the applicant has suffered persecution in the past owing to his practice of Falun Gong or indeed any other Convention ground.  Further, I am not satisfied on the evidence before me that the applicant faces a real chance of persecution in the future within the meaning of the Convention.  Therefore I am not satisfied on the evidence before me that the applicant has a well-founded fear of Convention persecution.  Accordingly, I am not satisfied that he is a refugee.

7                     The application before the Federal Magistrate raised a number of matters.  The first two grounds asserted error on behalf of the Tribunal by its failure to deal with the incorrect advice that he had been given by a previous migration agent who, apparently, strongly advised him not to attend the hearing arranged by the Tribunal.

8                     The second group of complaints in the application was the asserted failure by the Tribunal to consider various factual aspects of his claims.  These matters were as follows:

c)                   The tribunal failed to consider the fact that-:

·     In China, I have actively participated in the movement for seeking basic human rights of our unemployed people, and I have been regarded one of main leaders to organize several large demonstrations in Tieling City of Liaoning Province, China.  As a result, I have been in great dangers, and I have to leave the country before the Public Security Bureau came to arrest me.

·     Shortly after my departure from China, many of friends, who have jointly participated in those demonstrations together with me in Tieling City, have been subjected to investigation by the Public Security Bureau, and some of them have even been arrested by the Chinese government.

·     Even my wife, who is currently still in China, has been subjected to investigation by the Public Security Bureau, because she has been implicated by my political activities against the Chinese government.

d)                 The Tribunal failed to consider the fact that-:

·     It is impossible for me to survive if I have been sent back to China, because it is impossible for me to find any jobs and my livelihood will be threatened from time to time.

·     It is impossible for me to have any third countries to resident.

e)                  In conclusion, the Tribunal should re-consider my application, because its decision is based on incorrect information provided by my previous migration agent.

9                     Thereafter the applicant filed an amended application.  The amended application was set out in full in paragraph 11 of reasons for judgment of the Magistrate and was in the following terms:

1.   There was an error of law in the Tribunal´s decision constituting a jurisdictional error

Particulars

a)    The Tribunal failed to send its correspondence to my correct residential and post address. As a matter of fact, I have already informed the Tribunal my new address before the hearing.

b)    The Tribunal failed to consider the fact that I have apparently misled by my previous migration agent (Mr Shiu Lun Peter Wong from Jack Meng Immigration Pty Ltd) who has never ever notified me any procedures or proceedings of the Tribunal, and never ever given me any legal advise.

c)    The Tribunal failed to give me the complete Independent Country Information which has been used as the reason, for affirming the unfair decision of the Delegate of Minister. The Tribunal failed to ensure that I have fully and complete understand the information that the Tribunal would be used its decision before and during the hearing.

d)    Particularly, the Tribunal did not give me any opportunities to comment the Independent Country Information or other relevant information before the Tribunal made its decision.

2.    There was procedural error in the Tribunal´s decision constituting an absence of natural justice.

Particulars

a)    I have been wrongly advised by my previous migration agent (Mr Shiu Lun Peter Wong from Jack Meng Immigration Pty Ltd) who has provided complete incorrect information and claims for me to the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA"); and particularly he has never explained to me about relevant legal information, such a the Definition of Refugee or the criteria of Protection Visa or processing procedures for the application, in relation to my application. In addition, he strongly advised me not to attend the hearing arranged by the Tribunal.

b)    The Tribunal failed to consider the fact that I have, in fact, misled by my previous migration agent, and the Tribunal failed to verify, with me, those claims in the application.

c)    The Tribunal failed to consider the fact that:-

·       In China, I have actively participated in the movement for seeking basic human rights of our unemployed people, and I have been regarded one of main leaders to organize several large demonstrations in Tieling City of Liaoning Province, China. As a result, I have been in great dangers, and I have to leave the country before the Public Security Bureau came to arrest me.

·       Shortly after my departure from China, many of friends, who have jointly participated in those demonstrations together with me in Tieling City, have been subjected to investigation by the Public Security Bureau, and some of them have even been arrested by the Chinese government.

·       Even my wife, who is currently still in China, has been subjected to investigation by the Public Security Bureau, because she has been implicated by my political activities against the Chinese government.

d)    The Tribunal failed to consider the fact that:-

·       It is impossible for me to survive if I have been sent back to China, because it is impossible for me to find any jobs and my livelihood will be threatened from time to time.

·       It is impossible for me to have any third countries to resident.

e)    In conclusion, the Tribunal should re-consider my application, because its decision is based on incorrect information provided by my previous migration agent. (Errors in original)

10                  The first ground of appeal was dealt with by the Federal Magistrate in [16] of his reasons.  In that paragraph there were findings on the material available to the court that there had been only one address ever notified to the Tribunal.  It is to be noted that in the grounds of appeal to this Court no complaint is made as to the rejection of the first ground in the amended application that correspondence was sent to the wrong address.

11                  The Federal Magistrate rejected the complaint of the applicant being misled by his previous migration agent on the basis that there was no evidence to support this claim.  The Magistrate said that even if it were to be accepted that the applicant was misled as he claimed there was no evidence that the Tribunal was made aware of that fact or any assertion of it.

12                  The Federal Magistrate rejected the claims that the applicant had been denied procedural fairness in not being given relevant country information.  It does not appear that any adverse country information was used in relation to the applicant.  Further, no evidential foundation was apparently laid for the assertion that some aspect of the country information was not brought to the applicant’s attention.  There was also a claim that s 424A had not been complied with in relation to the provision of country information.  However, as the Federal Magistrate correctly pointed out the decision in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 made clear that country information fell within the exception contained within s 424A(3)(a).  See also VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.

13                  The Federal Magistrate then dealt with a submission that s 424A had not been complied with by reason of the information in the applicant’s original statement.  This argument was based on the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27.  It was submitted in answer to this before the Federal Magistrate (wrongly in the light of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs 2005) 215 ALR 162) that the decision of the Full Court in NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102 may form a foundation for excusing any such breach.  This argument was accepted by the Federal Magistrate.

14                  The Federal Magistrate rejected the claim that any misleading of the applicant by the migration agent could be sheeted home to the Tribunal.

15                  The Federal Magistrate rejected the complaints about the Tribunal failing to take into account various factual matters.  He accepted the submissions of counsel for the Minister that the applicant had been told that the Tribunal could not reach a state of satisfaction unless he appeared a hearing and that the Tribunal adequately summarised and dealt with the claims of the applicant and explained why it was not, rationally, satisfied as to any obligation of Australia under the Convention.

16                  The notice of appeal in this Court reiterated the complaint that the appellant had been misled by his previous migration agent.  The notice of appeal asserted that the Tribunal should have checked the legal status of the migration agent before it made a decision.  It also asserted that the appellant did not receive the relevant letter informing him of the need to attend the hearing. 

17                  The appellant filed a one paragraph submission to the effect that it appealed from the Federal Magistrate’s judgment.  The appellant did not appear on the appeal when it was called on for hearing. 

18                  Pursuant to the application of the Minister I indicated that I would hear the matter under O 52 r 38A(1)(d).

19                  In NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119 at [52]-[56] I said the following:

If the Refugee Review Tribunal (the Tribunal) comes to the view, apparently within the bounds of reason, that, having considered the papers, it is not satisfied that Australia owes protection obligations to an applicant such as the appellant, it is required to inform the applicant of that fact and invite him or her to a hearing to put his or her case.

That was the position here. Such an invitation was given.

The appellant did not take up that invitation.

The Tribunal remained unsatisfied of the relevant matter to which I have referred.

In those circumstances, unless the Tribunal somehow misdirected itself, or otherwise failed to comply with the Migration Act 1958 (Cth) (the Act) or other applicable law, ss 36 and 65 of the Act, read together, required the refusal of the visa

20                  These matters apply in this case.  There is no evidence that there was any material before the Tribunal to lead it to suspect that the applicant was being in any way misled.

21                  In this case the Tribunal expressed reasons for its lack of satisfaction that Australia had protection obligations to the appellant in a way which was rational and open to it.

22                  One aspect of the Federal Magistrate’s approach to the matter which may be seen to be wrong is its reliance on NAHV.  This decision of the Full Court of this Court was disapproved by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs 2005) 215 ALR 162.  In SAAP it was held that any failure to comply with s 424A was a jurisdictional error. 

23                  When SAAP is read with Al Shamry there is the opportunity for an argument that the use of any information given by the applicant prior to the review application may form the foundation for an obligation for communications contemplated by s 424A.

24                  However, though the Tribunal obviously made reference to material that was not put before it in the way identified by the Full Court in Al Shamry there was no breach of s 424A here.  I refer to my reasons in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 and SZEZI v Minister for Immigration and Multicultural Affairs [2005] FCA 1195.  I do not repeat those reasons here.  The lack of satisfaction of the Tribunal was reached after considering all the information before it including documents which would be information for the purpose of s 424A.  However, the reason or the part of the reason for the decision was not the information but the evaluation of it and the fact that the thought processes of the Tribunal were such that it was not able to reach a state of satisfaction of the relevant criterion (in effect, that the applicant had a well-founded fear of persecution) upon that material.  It was the absence of information of any specificity or persuasive character that can be said to be the reason for the decision.  In the same way as in SZEZI, it cannot be said that the information was the reason or a part of the reason.  If I am wrong about this, the comments I made in SZEZI at [31] and [32] would apply here too. 

25                  The appeal should be dismissed with costs.

Associate:

Dated:              9 September 2005