FEDERAL COURT OF AUSTRALIA

SZHOP v Minister for Immigration and Multicultural Affairs [2006] FCA 1640

MIGRATION – no point of principle – appeal dismissed

Migration Act 1958 (Cth) – ss 65, 424A

Abebe v Commonwealth of Australia(1999) 197 CLR 510 cited

Antoun v The Queen (2006) 224 ALR 51 cited

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 cited

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 followed

NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 followed

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 followed

Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 cited

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 followed

SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 followed

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 referred to

VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 cited

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

NSD 1567 OF 2006

JACOBSON J

17 NOVEMBER 2006

SYDNEY

On appeal from the Federal Magistrates Court of Australia

THE COURT ORDERS THAT:

1.         The Refugee Review Tribunal be joined as Second Respondent to the appeal.

2.         The appeal be dismissed.

3.         The Appellant pay the First Respondent’s costs of the appeal.

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

On appeal from the Federal Magistrates Court of Australia

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1                     This is an appeal from a decision of Federal Magistrate Scarlett given on 27 July 2006, dismissing an application for review of a decision of the Refugee Review Tribunal handed down on 20 October 2005.  The application for review was brought under s 483A of the Migration Act 1958 (Cth) as it then stood and s 39B of the Judiciary Act 1903 (Cth).  The Tribunal affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa. 

2                     The Refugee Review Tribunal was joined as a second respondent in the proceedings before the Federal Magistrate.  I have been requested to join the Tribunal as a party to the appeal and I will formally order that the Tribunal be joined as the second respondent. 

3                     The appellant is a citizen of the People’s Republic of China.  He arrived in Australia on 16 January 2005.  On 24 February 2005 he lodged an application for a protection visa, which was refused by a delegate of the Minister. 

4                     The appellant’s claims for refugee status were set out in answers to questions in his protection visa application.  The appellant said that the Chinese government had persecuted him and his wife because they have three children in breach of China’s ‘one child policy’.  He also said he was looked down upon because he was the son of a landlord and also because he had been involved in democratic activities in China to strive for freedom and democracy.

5                     He also stated that his grandparents were classified as landlords because they expressed political opinions contrary to the government and that accordingly he and all of his family suffered as a result of this.  He said that people in China do not have freedom of speech or human rights and cannot express their political opinions. 

6                     On 13 July 2005 the Tribunal wrote to the appellant stating that it had considered the material before it but that it was unable to make a decision in his favour on that information alone.  He was invited to attend a hearing to be held by the Tribunal on 5 September 2005.  The appellant responded to the invitation, stating that he wished to attend the hearing.

7                     However, on 25 August 2005 the Tribunal wrote to the appellant informing him that due to circumstances beyond its control it would be unable to hold the hearing on 5 September 2005.  It stated that it would inform him in writing as soon as a new date had been fixed. 

8                     On 5 September 2005 the Tribunal again wrote to the appellant in terms similar to those contained in the letter of 13 July 2005.  In the September letter the appellant was invited to attend a hearing to be held on 27 September 2005.  The letter specifically stated that if the appellant did not attend and the Tribunal did not postpone the hearing it could make a decision in the case without further notice.

9                     The appellant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.

10                  In its reasons for decision, the Tribunal referred to the letters of 13 July 2005 and 5 September 2005 informing the appellant that the available material was insufficient for it to make a favourable decision.  The Tribunal said that it had before it “vague and incomplete claims for refugee status”. 

11                  The Tribunal summarised the claims which it said appeared to be based on three factors.  The first was the violation of China’s one child policy.  The second was the appellant’s support for democracy.  The third was discrimination due to his family’s status as “landlords”, although the Tribunal noted that this seemed to be linked to the ground of political opinion.

12                  The Tribunal also summarised the other matters to which I have referred in the appellant’s answers to questions contained in his protection visa application form.  The Tribunal observed that it had not had the opportunity through a hearing to obtain further information to determine the veracity of the claims and accordingly that it could not be satisfied that the appellant met the criteria for recognition as a refugee. 

13                  The Tribunal set out a list of matters on which it was unable to be satisfied as a result of the failure of the appellant to attend the hearing.  The Tribunal concluded its reasons by stating:

On the limited evidence before it, the Tribunal is not satisfied with respect to the Applicant’s claimed family circumstances and his claimed political profile (past political activities, family association and ongoing commitment to democratic opposition); that he has been subject to adverse attention for those or for any other reasons in the past; or that the alleged past events or any other factors give rise to a well-founded fear of persecution within the meaning of the Convention in the reasonably foreseeable future. The Tribunal is not satisfied that he is a refugee.

14                  In his amended application for review before the Federal Magistrate, the appellant raised three grounds of review.  These grounds were summarised in [8] of the Federal Magistrate’s reasons for decision. 

15                  The first ground was said to be a failure to carry out the Tribunal’s statutory duty.  This was explained in particulars as a failure to comply with s 424A of the Migration Act.  The second ground was bias said to arise from the approach taken by the Tribunal due to the failure of the appellant to attend the hearing.  The third ground was a failure to refer to any independent information, because of its bias against the applicant.

16                  The Federal Magistrate dealt fully with each of the grounds of review.  The Federal Magistrate supported his reasons by reference to well-established authority.  The Federal Magistrate rejected the claim of a breach of s 424A of the Migration Act, referring to a number of authorities dealing with that question.  The Federal Magistrate said at [11] that the short answer was that “the Tribunal’s decision to affirm the delegate’s decision was not based on any information but on the vague nature of the applicant’s claims”.  This was part of the thought processes of the Tribunal and did not constitute information within s 424A.

17                  The Federal Magistrate rejected the claim of bias upon the basis that there was no evidence to support such a finding.  He also rejected the ground that the Tribunal failed to refer to independent information.  The Federal Magistrate observed that the appellant had submitted that the Tribunal had an obligation to make its own independent inquiries, however as he correctly pointed out, there is well-established authority that the Tribunal is ordinarily under no such obligation. 

18                  The Federal Magistrate went on to refer to a number of well-known authorities which deal with the consequences that flow from a failure of an applicant to attend a hearing as well as the principle that the Tribunal, having not been satisfied on the information before it, was entitled to proceed with the hearing and to find that the appellant had not satisfied it that he had a well-founded fear of persecution.

19                  The Federal Magistrate also said that he had read the decision himself thoroughly in order to satisfy himself that there was no jurisdictional error.  He apparently did so in light of the fact that the appellant was not represented in the hearing before him. 

20                  The appellant filed a notice of appeal on 17 August 2006.  With one exception, the notice of appeal seeks to re-agitate the grounds of review sought to be raised against the decision of the Tribunal.  None of the grounds relate to the reasons of the learned Federal Magistrate.  All of the grounds assert error in the Tribunal’s decision.

21                  The first ground of appeal is bias.  Curiously, the notice of appeal states that the Tribunal did not believe that he was a member of Falun Gong because of its bias against him.  There was no suggestion whatsoever before the Tribunal that the appellant’s claimed well-founded fear of persecution was based on membership of the Falun Gong. 

22                  In SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, von Doussa J usefully summarised the principles applicable to the ground of bias.  The principles are stated at [36] to [38] of his Honour’s judgment and need not be repeated. 

23                  His Honour there observed that it would be “rare and exceptional” for actual bias to be demonstrated solely from the published reasons for decision.  There is nothing in the present case to give rise to any possible suggestion of actual bias nor can there be anything to support a claim of reasonable apprehension of bias within the principles stated by the High Court in Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 at [27] to [28]; see also Antoun v The Queen (2006) 224 ALR 51 at [51]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. 

24                  The second ground of review is that the Tribunal “did not refer to any independent information for the consideration of my application”.  That does not seem to be a ground of appeal but rather an assertion which does not establish error on the part of the Tribunal, let alone error going to jurisdiction.

25                  It may be that the appellant seeks to raise a submission that the Tribunal had a duty to conduct its own independent inquiries.  However, as Wilcox J observed in Prasad v Minister for Immigration and Ethinic Affairs (1985) 6 FCR 155 at 169-170, the circumstances under which a decision will be invalid for failure to conduct its own separate inquiries are strictly limited.  There is nothing to suggest that that ground was enlivened in the present case. 

26                  As a full court observed in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17], there are “many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction”.  Section 65 of the Migration Act does not require the decision-maker to reach a decision to refuse a visa only if a particular matter is established.  As their Honours said, quoting from the decision of another full court:

It [section 65] requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. 

27                  It is also well established that the process is an inquisitorial one and it is a matter for an applicant to provide such information as he or she sees fit to support the claim of a well-founded fear of persecution; see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].

28                  The third ground of appeal is that the Tribunal failed to consider his claims.  This seems to me to be a new ground of appeal which was not a ground of review before the learned Federal Magistrate.  In any event it cannot be accepted for the reasons I have already given in relation to the previous ground of appeal.  Moreover, as a full court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]:

In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information.  Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing prosecution in China.  Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer his an opportunity to elaborate.  When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

29                  The final ground of appeal is that the Tribunal failed to carry out its statutory duty.  This appears to be a claim that there was a breach of s 424A of the Migration Act.  This ground is without foundation. 

30                  In SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [23], Bennett J referred to a number of authorities which show that where a Tribunal was merely “identifying deficiencies or inadequacies in the appellant’s case” it cannot be said that the Tribunal was relying on information communicated to or received by the Tribunal.  Rather, it was setting out its thought processes.  The same principle applies here. 

31                  As her Honour Bennett J said, there was no information that the Tribunal was obliged to give to the appellant by reason of s 424A(1).  Her Honour referred to the authority of a full court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24].  That paragraph of VAF has been referred to with approval by other full courts. 

32                  In short, it seems to me to be clear that the appeal must fail for the reasons given by the learned Federal Magistrate.  There is no error in the Federal Magistrate’s reasons, which deal comprehensively with the grounds of review and reject them in accordance with well-established authority to which the learned Federal Magistrate referred.

33                  The appellant appeared today without legal representation.  He was assisted by an interpreter.  He did not file any written submissions.  He requested an adjournment of at least two weeks to be able to respond to the written submissions of the first respondent.  He told me that he did not know what information the Department wanted from him and that he may want an adjournment of up to a month. 

34                  Ms Knight, who appeared for the first respondent, opposed the adjournment.  She pointed out that the appellant was aware of the hearing, that he filed no written submissions and that it was not for the appellant to respond to the Minister’s submissions, rather it was for him to put forward submissions as to why the appeal ought to be allowed.

35                  It seems to me, as Ms Knight observed, that the matters which the appellant wishes to agitate go to the substance of his visa application and in particular what information the Department would have required from him in order to support his claim for refugee status.  The information which he seeks time to gather can have no relevance whatsoever to the issues raised on this appeal. 

36                  Because the appellant is unrepresented, I have carefully considered the reasons given by the learned Federal Magistrate and by the Tribunal.  I am satisfied that no error is disclosed in the Federal Magistrate’s reasons and that no jurisdictional error can be seen in the decision of the RRT. 

37                  It is well established that the scheme contemplated by Part 7 of the Migration Act expressly contemplates that in particular circumstances an appellant will not attend a hearing, including cases involving no fault of the applicant.  Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence; see VSAF of 2003 at [12].  See also VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [16].  For these reasons the appeal must be dismissed with costs.

38                  I make the following orders:

(a)        the Refugee Review Tribunal be joined as a party;

(b)        the appeal be dismissed; and

(c)        the appellant pay the first respondent’s costs of the appeal.

Associate:

Dated:         17 November 2006