FEDERAL COURT OF AUSTRALIA

SZEIQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1801

SZEIQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR

NSD 690 of 2005

ALLSOP J

8 DECEMBER 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 first 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 from orders made by a Federal Magistrate on 15 April 2005.  The orders made were that the application before the Federal Magistrates Court be dismissed.  The application before the Federal Magistrates Court complained about a decision of the Refugee Review Tribunal (the “Tribunal”) made on 14 July 2004 and handed down on 4 August 2004 in which the Tribunal affirmed a decision of a delegate of the Minister to refuse a temporary protection visa to the appellant.

2                     The appellant is a citizen of the People's Republic of China who claimed protection based on adherence to or practise of the beliefs of Falun Gong.  Thus his claims can be characterised as ones made for a well-founded fear of persecution based on political opinion or religion.  It is unnecessary to deal with the precise characteristic of the Convention reason.

3                     It would be undoubted that if the Tribunal were satisfied of a well-founded fear of ill treatment amounting to persecution by reason of the appellant's adherence to Falun Gong or practise of Falun Gong that would amount to satisfaction of Article 1A(2) of the Refugees  Convention referred to in section 36(2) of the Migration Act 1958.  The difficulty faced by the appellant both in the Court below and in this Court stems from the circumstances of the hearing of the Tribunal. 

4                     The Tribunal, having reviewed the papers before it, sent a letter to the address known for the appellant.  It stated (as it was obliged to if it could not reach a view favourable to the appellant on the papers) that the appellant was invited to attend a hearing of the Tribunal.  The letter stated that the Tribunal had considered the material before it in relation to the appellant's application but was unable to make a decision in his favour on this information alone.  The appellant was invited to attend a hearing of the Tribunal to give any oral evidence and present arguments in support of his claim.  It stated that he could also ask the Tribunal to obtain oral evidence from other persons.

5                     It was plain from the letter that the Tribunal was not able to make a favourable decision absent some further assistance from the appellant.  There was no response and no correspondence was received by the Tribunal indicating that the letter had not been delivered.  In any event, the appellant did not attend the hearing.

6                     In its reasons for affirming the decision of the delegate the Tribunal indicated the particular matters on which it was unable to be satisfied.  They are set out on pages 6 and 7 of the Tribunal's reasons and they are as follows:

·                    the Applicant’s personal – family, residential, employment and financial – circumstances, insofar as these may be relevant to his claims;

·                    the genuineness of his claimed adherence to Falun Gong, including: - the circumstances of her initial exposure to it; [sic] the basis for his commitment to the movement; the nature and extent of her [sic] personal practice both in the past and since his arrival in Australia; and the significance if any of the reference in his protection visa application to his not having any religion;

·                    the particulars of his alleged detention in February 2002, including: - whether he had previously come to the adverse attention of the Chinese authorities; the circumstances of his arrest; the duration of his detention; any medical or other consequences that his detention (including with respect to his continued residence at one address until March 2005, his employment and his family members);

·                    the circumstances in which the Applicant was able to obtain, without difficulty (according to his protection visa application), a passport in his own name in February 2003;

·                    the Applicant’s activities between obtaining a passport in February 2003 and his departure for Australia more than one year later;

·                    particulars of the Applicant’s obtaining an Australian tourist visa in September 2003, and his unobstructed departure from China shortly thereafter;

·                    his fears regarding Falun Gong practice if he returns to China.

7                     The Tribunal then went on to say the following:

On the limited evidence before it, the Tribunal cannot be satisfied that the Applicant adheres to Falun Gong, that he has in the past been subject to persecutory harm in China for that or for any other reason, or that there are any other past or current circumstances which give rise to a well-founded fear of persecution within the meaning of the Convention in the reasonably foreseeable future.  The Tribunal cannot be satisfied that he is refugee.

8                     It is important to note at this point (for a matter which I will come to in due course) that the Tribunal did not make positive findings of fact about the position of the appellant.  What it said in its reasons was, in substance, that without further assistance, in particular in the areas which it identified on pages 6 and 7 of its reasons, it could not be satisfied that Australia owed protection obligations under the Convention and in those circumstances was bound by law to refuse to grant the visa.

9                     It is important to understand at this point that by reference to the balance of the material in the court book that was before the Federal Magistrate and which comprises the appeal book in large part before me that the views of the Tribunal as to its doubts are not, on their face, irrational or capricious or in any way arbitrary.

10                  In those circumstances by reason of the dual operation of ss 36 and 65 of the Act the Tribunal felt bound to affirm the decision and refuse the visa not being satisfied without further assistance from the appellant (which assistance was not forthcoming) that the appellant had a well-founded fear of persecution.

11                  The appellant then sought to set aside the decision in the Federal Magistrates Court by an application filed on 6 September 2004.  As the learned Federal Magistrate indicated in his reasons the application which I will not set out in full contains no identification of any error which could be said to be jurisdictional.  The application merely re-stated the fundamental claim for asylum that the appellant had made in his application for a visa.

12                  The learned Federal Magistrate in short but complete reasons indicated that he was unable to identify any basis for criticism of the approach of the Tribunal.  The application was not dealt with on a summary basis; it was dealt with on a final basis.

13                  It is important that the appellant recognise a matter at this point which is not often appreciated by many applicants.  The procedure in the Federal Magistrates Court and in this Court on appeal is not one of simply re-doing the same job that the Tribunal did.  Neither the Federal Magistrate nor this Court has power to grant a visa.  That task is given to the Executive, or administrative arm of government which includes the Minister, the delegate and the Tribunal as an Executive body. 

14                  The task of the courts, that is the Federal Magistrates Court and this Court on appeal is to ensure that the Tribunal approaches the matter lawfully.  With some limited exceptions, the weighing of the evidence and the assessment of the facts is a matter for the Tribunal.  That is particularly the case when the proper question for the Tribunal is whether it is satisfied on the material before it of relevant state of affairs.  Here, for reasons that were not apparently irrational, the Tribunal indicated that it needed further information to be satisfied of the fundamental issue.  That was a matter for it to decide for itself.

15                  The appellant has filed in this Court appeal documents by way of a notice of appeal on 5 May 2005.  That notice of appeal did not identify any grounds of legal error in the approach of either the Federal Magistrate or the Tribunal.  Once again it set out the basic claims of the appellant. 

16                  An amended application was filed on 9 June 2005 which described in slightly more detail the factual grounds of the appellant's claim for asylum.  In Court today an amended application was also filed which I will treat as a further amended application which set out in para 1 some assertions of legal error which could be jurisdictional error.  Paragraph 1 was in the following terms:

1.        The decision involved an error of law in that:

(a)     procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed.

(b)     The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

(c)     The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.

(d)     There was no evidence or the other materials to justify the making of the decision.

17                  There are no particulars to that paragraph.  The appellant in oral submissions before me today re-asserted his claim for a need for protection from the Chinese Government as a Falun Gong practitioner.  As I hope is clear it is simply not up to me to decide that question.  What I need to attend to is assessing whether the learned Federal Magistrate committed any error in the way he approached the matter.

18                  The learned Federal Magistrate was unable to identify in the circumstances that I have described any jurisdictional error.  The only matter that is necessary to identify in addition to agreeing with the Federal Magistrate that there is no error whatsoever apparently disclosed in the approach of the Tribunal is to say something as to the operation of the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 when read with the Full Court of this Court's reasons in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27.

19                  In particular these cases concern the operation of s 424A of the Migration Act 1958 the terms of which are as follows:

(1)     Subject to subsection (3), the Tribunal must:

(a)   give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)   ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)   invite the applicant to comment on it.

(2)     The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)   if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)     This section does not apply to information:

(a)   that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)   that the applicant gave for the purpose of the application; or

(c)   that is non-disclosable information.

20                  Difficulties arise or may be seen to arise because all the information that was before the Tribunal might be said on the authority of Al Shamry not to have been provided by the appellant in the course of or for the purpose of the Tribunal application.  Thus it might be said that given that this was the only information before the Tribunal the information provided by the appellant before the Tribunal decision must have been the reason or part of the reason for the decision.  If that were the case it might be said that no letter under s 424A had been sent to the appellant.

21                  Leaving aside questions as to whether the correspondence that was sent could be seen to amount to a letter for the purposes of s 424A and leaving aside questions of the exercise of discretion as to whether relief should be given notwithstanding any asserted failure to comply with s 424A I do not think this is a case in which there has been any failure to comply with s 424A.

22                  I so conclude for reasons virtually identical to those set out in my judgment in SZEZI v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 and in particular what appears at [29] and [30] of that judgment.  In my view, as I said in [29] of that judgment, it would be an inadequate and misleading statement to say that the information provided by the appellant to the Department which had been on-sent to the Tribunal was the reason or part of the reason for the decision.  The Tribunal made plain in its letter to the appellant and in its reasons that it was the lack of further requested assistance that led to the inability to be satisfied.  That was the reason for the decision.  It would not be in any way a valid statement, in my view, to say that the information given was the reason or part of the reason in those circumstances.  Thus, in my view, there was no failure to comply with s 424A.

23                  It may be in other cases that a distinction must be drawn where the Tribunal, notwithstanding the absence of the party, proceeds in its reasons to find facts from the earlier information and says that it is not satisfied because of the facts as found based on the earlier information.

24                  In those circumstances it is difficult to resist the logical conclusion that the information previously given was part of the reason for the decision.  These fine linguistic or semantic distinctions may be seen to be required by the definitive operation of s 424A required by the High Court's decision in SAAP.

25                  In any event, here the Tribunal did not make findings of fact based upon earlier information.  It simply, perfectly properly, stated the true position which was that on the current state of information it was unsatisfied and to be satisfied it required further information.  It was the absence of further information that was the reason for the decision, in my view.

26                  For those reasons, in my view, s 424A of the Migration Act was not applicable to the circumstances here and does not provide a basis for a conclusion as to jurisdictional error.  There being, no other basis one could conclude that the Tribunal acted outside its jurisdiction in circumstances where it received no assistance from the appellant when asked I can only conclude that there is no error in the learned Federal Magistrates reasons or orders and in those circumstances must conclude that the appeal should be dismissed and the appellant pay the respondent's costs.

27                  The Tribunal has been joined as the second respondent.  If it hasn't and there is any doubt about that I so join it and I add that this matter is heard in the appellate jurisdiction by a single judge pursuant to a direction made by the Chief Justice under s 25(1A) of the Federal Court of Australia Act (1976) (Cth).

Associate:

Dated:              12 December 2005