FEDERAL COURT OF AUSTRALIA

SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661

SZHZT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1427 OF 2007

ALLSOP J

31 OCTOBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  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.

REASONS FOR JUDGMENT

1                     This is an appeal from the orders made by the Federal Magistrates Court on 3 July 2007.  Those orders dismissed an application by the appellant for judicial review of a decision by the Refugee Review Tribunal (the “Tribunal”) which had affirmed a decision of a delegate of the Minister not to grant a protection visa. 

2                     The appellant is a national of the People’s Republic of China who arrived in Australia on 16 June 2006, and who applied for a protection visa shortly after arrival.  The basis of the appellant’s claim was that he was a Falun Gong practitioner and feared persecution upon return to China, having suffered ill treatment and persecution prior to coming to Australia.  The Minister’s delegate refused the application. 

3                     An application for review of that decision was made to the Tribunal.  On 18 September 2006, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application, but that it was unable to make a favourable decision on that information alone.  The Tribunal invited the then applicant to a hearing to give oral evidence and present arguments.

The appellant consulted a migration agent at the time, according to what he said to me today on appeal.  He said he was told that he could choose to go to the Tribunal or not go, and that he could submit material to the Tribunal.  What this advice failed to make clear to the appellant was that if the Tribunal was left unsatisfied of the appellant’s claims, the Tribunal was bound by the Migration Act 1958 (Cth) to refuse the application and affirm the decision.  The Tribunal was clearly stating in the letter that it was not able to be satisfied that the visa should be granted without an oral hearing.  In those circumstances, the lack of wisdom of attending the Tribunal hearing should have been clear. 

4                     The appellant, having spoken to his migration agent, chose not to go to the Tribunal hearing, but provided the Tribunal with further evidence.  That evidence was described by the Tribunal as follows:

Accompanying the applicant’s advice was a document and an unsworn and unattributed translation, indicating that it was a patient record issued by Tongzhou No 5 People’s Hospital pertaining to the applicant.  It stated that he was admitted on 12 February 2006 suffering from a scalded left shoulder.  Some photographs were enclosed, depicting the applicant’s injuries, which appear to comprise a few blisters on one shoulder.  It is unclear who took the photographs, or why so many were taken of what appears to be some minor injuries.  He was reportedly “mentally clear and normal in appearance”.  The applicant provided no explanation as to the significance of the report and photographs. 

5                     What may not have been clear to the appellant at the time, but nevertheless is the statutory framework with which I must work, is that the Tribunal was the place and forum at which the appellant was to make good his factual claims.  The Tribunal’s task, set out in the Migration Act, is to review all aspects of the claims of the appellant and come to a view, in the light of the Refugee Convention, and in the light of all the material put forward by the applicant before it, whether Australia owes protection obligations to the person concerned.  By not going to the hearing and assisting the Tribunal in understanding the full nature and detail of his case, the appellant risked leaving the Tribunal in a state of lack of satisfaction about aspects of his claims.  That is in fact what happened. 

6                     The findings and reasons of the Tribunal are set out in the last two pages of its six pages of reasons.  I will not recite them word for word, but, essentially, the Tribunal said that there was information that it needed from the appellant.  It felt that the appellant’s claims were lacking in detail in significant respects and, in the circumstances of his non-appearance at the hearing, was unable to be satisfied of the relevant criteria, in particular, that Australia owed protection obligations under the Refugee Convention.

7                     The review by the court system of the approach of the Tribunal is not to re-hear all factual matters.  The review by the court system is to ensure that the Tribunal, which was charged with the responsibility of factually investigating the appellant’s claims, acted according to law.  Thus, the Federal Magistrate’s task was not to re-examine the claim for protection, but to examine the approach of the Tribunal to ensure that it approached the matter lawfully.  In that context, the Federal Magistrate dealt with the application, and the grounds of the application, as brought by the appellant. 

8                     The three grounds of the application before the Federal Magistrate were as follows:

1.     I was denied procedural fairness in connection with the making of the decision.

2.     The decision (was) otherwise contrary to law.

3.     It is not reasonable for the Tribunal to deny that I am or was ever a Falun Gong practitioner.

9                     The Federal Magistrate concluded that there had been no denial of procedural fairness.  It is difficult to see how that conclusion could be the subject of debate, given that the Tribunal had invited the appellant to a hearing and he declined to attend.  The unparticularised assertion that the decision was contrary to law was rejected, and the assertion of the lack of reasonableness of the Tribunal was also rejected.  In particular, in relation to this last ground, the Federal Magistrate referred to the judgment of Hely J in SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [16], where Hely J said the following:

The RRT made it pellucidly clear in its letter … that it was unable to make a decision in the appellant’s favour on the basis of the information before it, and as the Full Court observed in NAVX … when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application. 

It is important to understand that the task of the Tribunal is to seek to reach a state of satisfaction.  If, not acting unreasonably or irrationally, the Tribunal says that it does not have the relevant state of satisfaction, the Migration Act requires that the visa be rejected.

10                  Looking at the Tribunal’s reasons here, on their face, the aspects of lack of satisfaction expressed by the Tribunal are not irrational.  The appellant, most unwisely, chose not to attend the hearing.  As I said earlier, it is not this Court’s or the Federal Magistrates Court’s task to re-decide the question of entitlement to a protection visa.  We have no authority to undertake that task.  The authority of the Federal Magistrates Court and this Court is to ensure the legality of the process and approach of the Tribunal.  For the reasons expressed by the FederalMagistrate, there are no apparent errors in the approach of the Tribunal as a matter of law.  I have examined for myself the Tribunal’s reasons.  I am not able to ascertain any error in law. 

11                  The appellant, in submissions today, indicated that, in effect, he had followed the advice of his migration agent.  That advice, in my view, can be seen as less than prudent on what I understand to be the case, and assuming the genuineness of the appellant in his claims.  As I have said, it is not my task to form an opinion as to whether the appellant is or is not a practitioner of Falun Gong.  That was the task of the Tribunal. 

12                  There was nothing said to me in submissions this morning as to the conduct of the migration agent that might call in aid the recent High Court decision of SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64.  Such issues were not ventilated before the Federal Magistrate, nor were they even hinted at today.  The most that can be said, without hearing from the migration agent, is that his or her advice that the appellant could not attend the Tribunal without grave danger to the possible success of his application was unwise in the extreme.  It is most unfortunate, if the appellant has legitimate claims.  They, of course, have been rejected both by the delegate and the Tribunal.  The only avenue that would appear now for the appellant is to collect all his material and make an application to the Minister for the exercise of a personal discretion.

13                  Examining the reasons of the Tribunal and the reasons of the Federal Magistrate, I see no grounds to appeal for this Court for the reasons I have given.  Therefore, the orders of the Court will be:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

14                  The court so orders.

Associate:

Dated:         16 November 2007