FEDERAL COURT OF AUSTRALIA

SZFOR v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 1583

Migration Act 1958 (Cth)

FVAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872

Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27

Minister for Immigration and Multicultural and Indigenous Affairs v GIA [2001] HCA 17

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264

Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196

QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749

SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782

SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2

Tim v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109

VAAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 

SZFOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1690 OF 2006

COWDROY J

24 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Refugee Review Tribunal be joined as second respondent to these proceedings.

3.                  The appellant pay the costs of the respondent in sum of $3700. 

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

REASONS FOR JUDGMENT

1                                             This is an appeal against a decision of Nicholls FM delivered on 21 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 7 December 2004 and handed down on 6 January 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refusing the grant of a Protection Visa to the appellant.

BACKGROUND

2                                             The appellant, a citizen of the People’s Republic of China (‘PRC’), arrived in Australia on 20 June 2004.

3                                             On 14 July 2004 the appellant lodged an application for a Protection Visa. In his application he nominated his residential and postal address as 48/4 Fourth Avenue, Campsie NSW 2194. A statement comprising part of his application for a Protection Visa claimed that he had been a member of Falun Gong and had been actively practising Falun Gong since 1998. He claimed that he had been in Beijing many times to contact members there for the organisation of meetings and demonstrations. However, because the Falun Gong association was declared to be an illegal organisation by the PRC, members of the organisation were arrested, detained and tormented both physically and mentally. The appellant claimed that the PRC government began to use the army to harass Falun Gong practitioners and accordingly, being concerned about his safety, he left his job and hid for a period of time. Later he found another job and in 2003 obtained a passport. The appellant claimed that other members were arrested in 2003 and he had to leave his job and the PRC for safety reasons.

4                                             By letter dated 31 August 2004 the Minister advised the appellant that his application for a Protection Visa had been declined.

APPLICATION FOR REVIEW TO TRIBUNAL

5                                             By Application for Review received by the Tribunal on 1 October 2004, the appellant challenged the decision of the Minister. The appellant’s claims were essentially similar to those made previously in his Protection Visa application and the residential address provided was identical to that given in that application. The Tribunal acknowledged receipt of the Application for Review by letter dated on the day that the application was made.

6                                             On 5 November 2004 the Tribunal wrote to the appellant at the address nominated in his Application advising him that a hearing would take place on Friday 3 December 2004. The letter also advised that if he was unable to attend the hearing he should advise the Tribunal immediately. The letter also indicated that if the appellant did not attend and the hearing was not postponed, the Tribunal could proceed to make a decision without further notice. A Response to Hearing Invitation form was enclosed.

7                                             On 17 November 2004 the Response to Hearing Invitation form was received by the Tribunal indicating that the appellant wished to attend the hearing.

8                                             The hearing took place at the appointed time. The Mandarin interpreter attended but the appellant did not attend. By letter dated 9 December 2004 the appellant was notified that the Tribunal had made its decision and that it would be handed down on 6 January 2005. On that date the decision was delivered.

9                                             The decision noted that the appellant’s claims were general and lacking in detail. It noted that no further evidence had been supplied in support of the appellant’s claims and that the Tribunal had notified him that on the evidence supplied, the Tribunal was unable to accept his claims and that it was for this reason that a hearing was necessary. In the absence of any further information, the Tribunal found that there was insufficient evidence to support the appellant’s assertion that he was a Falun Gong practitioner. Accordingly the Tribunal determined that the appellant did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) (‘the Act’) for a Protection Visa.

APPEAL TO THE FEDERAL MAGISTRATES COURT

10                                          On 24 January 2005 the appellant filed an application pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking orders that the Tribunal’s decision be set aside and that his case be remitted for rehearing. The grounds relied upon claimed that the Tribunal did not give him ‘any other chance to explain my application’. He claimed that he was unable to attend the hearing because he was delayed in traffic and that he tried to contact the Tribunal but no one could assist him because of language difficulties. He also claimed that there was information and evidence which had not been considered by the Tribunal.

11                                          On 5 May 2005 the appellant filed an Amended Application. The grounds relied upon claimed that the Tribunal did not give him the opportunity to explain his claims; that the Tribunal’s satisfaction that he was not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief; that the Tribunal did not observe the requirement of the Act and that the Tribunal failed to consider his claims. The appellant also claimed that the Tribunal did not provide adequate particulars of the independent information nor give him an opportunity to respond to the substance of the information.

12                                          Nicholls FM heard the application. He noted that the allegation that the appellant did not attend the hearing because he was delayed in traffic was not the subject of any evidence. Nicholls FM also noted that the appellant had consulted a lawyer engaged by the Federal Magistrate Court’s Legal Advice Scheme on 22 September 2005 with the assistance of an interpreter. However, no evidence was put before the Court sufficient to justify a further opportunity for the appellant to provide evidence.

13                                          The appellant, through an interpreter, told Nicholls FM that he had experienced difficulty in obtaining relevant documentation from the PRC as he had no one to assist him. Nicholls FM noted that whilst the Court was sensitive to problems that unrepresented, non-English speaking appellants face in pursuit of protection, the appellant’s statement did not demonstrate any jurisdictional error.

14                                          Nicholls FM also noted that the Tribunal’s decision was handed down a month after the scheduled hearing date, but that no attempt had been made by the appellant to explain his non-attendance at the hearing. His Honour noted that the Response to Hearing Invitation form contained a statement that the Tribunal would hear the Application for Review in the absence of the appellant if he failed to attend. Nicholls FM also added that the provisions of s 422B of the Act applied.

15                                          Nicholls FM considered the allegation that the Tribunal’s decision was not based on a ‘rational or logical foundation’ but found there were no particulars provided in support of such allegation. He also considered the allegation that the Tribunal failed to consider the appellant’s claims, but found that there was no basis for such assertion.

16                                          Nicholls FM also considered the allegation that the Tribunal had failed to provide particulars of independent country information and that it had failed to give the appellant an opportunity to respond to that information. His Honour relying upon Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 concluded that there was no obligation on the part of the Tribunal to provide to the appellant particulars of any such information or to provide the appellant with an opportunity to respond. His Honour further noted that the Tribunal’s decision was based upon a lack of satisfaction that the appellant was a Falun Gong practitioner and that it did not rely on independent country information in reaching its decision.

17                                          His Honour also considered claims that the Tribunal was biased because it did not accept that the appellant was an ‘underground Church member’. Nicholls FM noted that there was no material before the Court to justify such submission. Nicholls FM nevertheless considered the statement made by the appellant in his Protection Visa application wherein the appellant said of his Falun Gong practice, ‘I believe it is like my religious belief’. Nicholls FM held that if the appellant was intending to refer to the Falun Gong movement as ‘an underground Church’ then the Tribunal’s decision was based upon a lack of satisfaction that the appellant was so involved. His Honour found that no error existed merely because the Tribunal did not accept the merits of the appellant’s claims.

18                                          His Honour referred to authorities demonstrating that actual bias required evidence of prejudgment by the decision maker: see Minister for Immigration and Multicultural and Indigenous Affairs v GIA [2001] HCA 17 at [69], [71-72], [127]. His Honour referring to Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27-32] observed that where an apprehension of bias is raised a standard of reasonableness is to be applied, and His Honour noted that the appellant brought no evidence to ground such a complaint of bias, observing that rarely could such a complaint be established on the decision record alone: see FVAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872.

19                                          Nicholls FM also considered the submission that the Tribunal should have referred to ‘independent materials’. However, His Honour noted that no such materials were specified by the appellant.

20                                          Lastly, Nicholls FM considered a submission that the Tribunal, prior to making its decision, should have notified the appellant of the reasons upon which it was to rely to refuse his application. His Honour found that the Tribunal’s adverse thought processes do not constitute information for the purposes of s 424A(1) of the Act and that there was no obligation upon the Tribunal to put adverse findings to the appellant. His Honour referred to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [65] (per Moore J); at 206 (per Allsop J); Tim v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; VAAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123. His Honour also noted that the Tribunal had, by its invitation to attend the hearing alerted the appellant to the very issue with which it was concerned, namely insufficiency of details, and provided him the opportunity to attend the hearing to enable the appellant to provide further evidence. No such evidence was provided and Nicholls FM considered that there was no ground of reviewable jurisdictional error in the Tribunal’s decision.

APPEAL TO THIS COURT

21                                          By Notice of Appeal filed in this Court on 5 September 2006, the appellant claims that he was not given a proper opportunity to explain his case; that the Tribunal was biased against him and did not consider his application according to law; that the Tribunal failed to carry out its statutory duty; and that the ‘Federal Court’ failed to find jurisdictional error made by the Tribunal.

22                                          The appellant attended the hearing before me and relied upon written submissions. The appellant submits that the Tribunal failed to carry out its statutory duty. The particulars in support of this submission claim that the Tribunal failed to comply with s 424A of the Act because it reached its decision without providing the appellant with an opportunity to comment upon the information used by the Tribunal as the reason or part of the reason for its decision. Reliance is placed upon SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and also upon Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27. The appellant also submitted that he was not given an opportunity to explain his case. He claims that the Tribunal made a decision on his application based upon ‘the wrong independent information’.

23                                          Each of the grounds will be considered hereunder.

FINDINGS

Lack of opportunity to explain his case

24                                          Pursuant to s 425 of the Act, the Tribunal is to provide an opportunity to an appellant to appear before it in order to provide further information. The invitation required by s 425 was provided to the appellant and it was received and acknowledged by him. However, the appellant did not attend the hearing. Nicholls FM did not accept that the appellant was detained in traffic. Before the Court today, in answer to a question relating to the reason for his non-attendance at the hearing before the Tribunal, the appellant merely responded that ‘something happened’. Further, the appellant made no effort to communicate with the Tribunal between the time it notified him that a decision had been made and the delivery of its decision, to explain his absence or to offer any further information. Although the appellant claimed today that he had received no assistance, the appellant was nevertheless able to respond to the invitation to attend the hearing. No further explanation has been offered for his failure to contact the Tribunal to explain any alleged difficulty in attending the hearing.

25                                          The invitation provided by s 425 also contained the requisite notice indicating that the Tribunal would hear the matter at the appointed time. In these circumstances, the Tribunal was empowered pursuant to s 426A of the Act to proceed with the hearing: see SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238. There is no merit in this ground of appeal.

Bias

26                                          No details have been provided which could sustain such ground. The function of this Court is not to review purported errors of the Tribunal, but rather purported errors of the Federal Magistrate: see SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4]. However in the interests of justice the Court pays regard to the events before the Tribunal.

27                                          An allegation of bias raises a serious issue and must be founded on facts sufficient to give rise to the inference: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. There is no factual material raised before this Court which establishes bias on the part of the Tribunal. Accordingly, this ground has no merit.

The Tribunal failed to carry out its statutory duty

28                                          No particulars have been provided and the Court is unable to determine any error in the conduct of the Tribunal. The Tribunal made its decision on the ground that the material before it was inadequate to justify a finding that the appellant was a Falun Gong practitioner or that he would suffer any persecution if he were returned to the PRC.

Failure to find jurisdictional error

29                                          The Court has considered the decision both of Nicholls FM and that of the Tribunal. No errors have been particularised and none are apparent.

30                                          It follows that all of the grounds of appeal fail.

Joinder of Tribunal

31                                          The Court notes that consistent with the High Court’s decision in SAAP the Tribunal should be joined as a second respondent to these proceedings. The Court makes such provision in the orders.

Costs

32                                          An order that the appellant pay the costs of the first respondent in the sum of $3700 is sought. According to a breakdown of costs submitted by the first respondent this amount appears to be within a reasonable range for costs and the Court will accordingly make such order.

Associate:

Dated:         24 November 2006