FEDERAL COURT OF AUSTRALIA

BZAAE v Minister for Immigration and Citizenship [2011] FCA 491

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant pay the First Respondent’s costs of and incidental to the appeal to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The Appellant is a citizen of the People’s Republic of China. She came to Australia on 21 March 2009. Later that year, on 15 December 2009, she applied to the Minister for Immigration and Citizenship (the Minister) for that class of visa under the Migration Act 1958 (Cth) (Migration Act) known as a Protection (class XA) Visa. The following year, on 9 March 2010, a delegate of the Minister decided to refuse that application, on the basis of absence of satisfaction that the Appellant was a person to whom Australia had protection obligations under the Refugee Convention. The delegate notified the Appellant in writing accordingly.

2    As was her right under the Migration Act, the Appellant sought the review of the Minister’s delegate’s decision, by the Refugee Review Tribunal (the Tribunal). Both in her original visa application, and also in her application to the Tribunal for review, the Appellant had specified as her address for contact an address in Surry Hills, New South Wales. It was to that address that the Tribunal sent two letters, each dated 22 April 2010, to the Appellant.

3    The first of these notified that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone. That letter went on to extend to the Appellant an invitation to appear before the Tribunal to give evidence, and to present arguments relating to the issues arising in respect of her visa application and the review of the Minister’s decision. The letter specified that the hearing was to occur at the Tribunal’s premises in Sydney at 2 pm on 27 May 2010. Amongst other things, that letter also stated that:

If you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.

4    The other letter of 22 April 2010, sent to the Appellant at the Surry Hills address which she had nominated, drew attention to a requirement, as the Tribunal saw it, to invite the Appellant to comment on certain information. That information, as set out in the second letter of 22 April 2010, was this:

    Electronic records before the Tribunal indicate you were granted a Visitor visa on 15 July 2008. You travelled to Australia on 2 August 2008, and departed on 1 November 2008.

    You were granted another Visitor visa on 3 March 2009.

    You travelled to Australia on 21 March 2009.

    You did not apply for the protection visa until 15 December 2009.

The letter continued:

This information is relevant because it may indicate that you failed to seek protection during your first visit to Australia and also that you have delayed your application for the protection visa. This may cause the Tribunal to find that you did not have a genuine fear of persecution in China.

This information is also relevant because it may cause the Tribunal to find that you have not been truthful in your claims concerning the events in China. The Tribunal may find that you are not a person of credibility and to reject your claims. If the Tribunal rejects your claims, the Tribunal may find that you are not a person to whom Australia has protection obligations. You may then not be entitled to the grant of the Protection visas for which you have applied.

[sic]

5    The Tribunal went on, in that second letter, to invite the Appellant to comment upon that information. A date prior to that fixed for the hearing was nominated for that purpose.

6    The first of the letters of 22 April 2010 was sent in conformity with an obligation which fell on the Tribunal in the circumstances by virtue of the operation of s 425(1) of the Migration Act.

7    The occasion for the second letter of 22 April 2010 would seem to be a perception on the part of the Tribunal that it was required to do this by reason of s 424A of the Migration Act. It may, with respect, be doubted whether the Tribunal was under any such obligation by virtue of s 424A. That is because, as was correctly submitted on behalf of the Minister, the Tribunal’s thought processes do not constitute “information” for the purposes of that section. See in this regard, SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190.

8    It is, though, not necessary to reach any concluded view on that subject, because the question as to whether or not there was a breach by the Tribunal of s 424A was not a ground of review argued before the Federal Magistrates Court, much less was it a ground of appeal to this Court. Further, and in any event, the Tribunal is hardly to be criticised for taking the demonstrably fair course of putting the Appellant on notice as to a particular line of reasoning based on particular general information and departmental records of the Appellant’s movements which might provide a basis for questioning her credibility.

9    On 27 May 2010, the Appellant sent a letter to the Tribunal which notified a new postal address, but did nothing more than this. The Tribunal appears to have received that notification that same day by facsimile. In light of a claim later made by the Appellant to the Federal Magistrates Court, to which I shall refer shortly, the absence of any information other than a change of address in that letter to the Tribunal is significant.

10    The Appellant did not appear before the Tribunal on 27 May at the time which the Tribunal had specified for the hearing, nor did she prior to that date, as invited, provide the Tribunal with any written response to the information which the Tribunal had suggested might provide a basis for doubting the credibility for her claim to a visa.

11    When, on 27 May 2010, the Appellant did not appear before it, the Tribunal, as it was entitled so to do, proceeded to determine her review application on the basis of the material which it did have. The Appellant’s visa claim had been founded upon her statement that she was a Falun Gong practitioner and that, by reason of that practice, she had been detained for a month and a half in a detention centre, tortured, and forced to declare she would no longer practice Falun Gong.

12    The Tribunal’s reasons disclose that the Tribunal directly confronted the claim for a visa as made by the Appellant. They further disclose, at para 34, that:

On the basis of the very limited information available to the Tribunal, the Tribunal does not accept that the events described by the applicant did occur.

13    The Tribunal made reference, at para 33, to the doubt as to credibility raised by the Appellant’s not having made application for a Protection Visa on her earlier visit in 2008. The Tribunal also made reference to the Appellant not having attended at the hearing and thereby depriving the Tribunal of the opportunity of questioning her concerning her claim to be a Falun Gong practitioner.

14    The Tribunal found that there was not a real chance that the Appellant would face persecution on the basis of her involvement with Falun Gong, or for any other convention reason, if she returned to China, either at the time the Tribunal made its decision, or in the reasonably foreseeable future. In so doing, the Tribunal directly addressed the criterion set out in s 36(2)(a) of the Migration Act in relation to a visa of this class.

15    The Tribunal’s decision was to affirm that of the Minister’s delegate to refuse the application for a Protection Visa. That decision was made on 27 May 2010 and communicated to the Appellant by a letter from the Tribunal sent to her new address on 28 May 2010.

16    The Appellant then sought judicial review by the Federal Magistrates Court of the Tribunal’s decision. There were three grounds of review specified in her application. They were:

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

2.    There was no evidence or other materials to justify the making of the decision; and

3.    I face a risk of being jailed if I go back to China.

17    These grounds of review came to be stated again as grounds of appeal to this Court.

18    As to ground one, the learned federal magistrate concluded, with respect unremarkably, that it was not a proper ground for review as it did not allege any error on the part of the Tribunal. Insofar as it has been repeated as a ground of appeal, the observation may be made that it is not a meaningful ground of appeal, because it does not allege any error on the part of the Federal Magistrates Court. That is not, of course, to say that the appeal is not important to the Appellant, or to the administration of justice, only, that there is no meaningful ground of appeal in ground one. In dealing with ground two of the application for review, the learned federal magistrate, amongst other things, made reference, at para 13 to the following observations made by a Full Court of this Court 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 persecution in China.

Having found that the outline was not sufficient to satisfy it that the Appellant had a well-founded fear or persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

19    The learned federal magistrate correctly, in my view, regarded this observation as applicable to, and determinative of, ground two of the application for review. In so doing, his Honour drew attention to the Tribunal’s reasons for not accepting the claims as made on the face of the visa application, unsupported by any further submissions or evidence by the Appellant. The Tribunal was not obliged to accept uncritically the claims made in the visa application. The Tribunal was entitled to regard the claims as general. It was also entitled to question the Appellant’s credibility by reason of her not having taken advantage of an earlier opportunity to make a Protection Visa application.

20    The Tribunal’s reasons are neither illogical, nor irrational. Nor are they made without evidence. The visa application itself was evidence, as were the departmental records of the Appellant’s travel. There was open to the Tribunal an ability on that evidence, and for the reasons the Tribunal gave, not to be satisfied that the Appellant was a person to whom Australia had, in terms of the Migration Act, protection obligations.

21    It was for the Tribunal to make such a finding on the merits, not for either the Federal Magistrates Court or much less, for this Court. It was for the Appellant to take advantage of the opportunity which the Tribunal offered by invitation to provide further details and make further submissions about her claims.

22    As to this, the reasons for judgment of the Federal Magistrates Court record that, at the hearing before the court and in the course of her submissions, the Appellant stated that she had failed to appear before the Tribunal because she was suffering from a urinary tract infection which prevented her from attending the hearing. His Honour states, at para 8:

When pressed, it was apparent that she was not under medical treatment at the time and that she made no real efforts to inform the Tribunal of her malady. No medical evidence was presented to the hearing before me, to verify the applicant medical complaint and its potential disabling effects on the day of hearing.

23    To this, it might be added, nor was the fact of a medical condition drawn to the attention of the Refugee Review Tribunal, by the Appellant in her facsimile letter of 27 May 2010. This underscores the aptness of the learned federal magistrate’s conclusion, at para 9 of his Honour’s reasons for judgment, that:

There is no material to suggest that the Tribunal was not within its rights in proceeding to hear the application in her absence, given the applicant failure to attend.

24    The learned federal magistrate was correct in dismissing ground two of the application for review. For the reasons which I have given, I dismiss ground two in the notice of appeal.

25    The learned federal magistrate treated ground three of the application for review as impermissibly inviting that court to engage in a review of the merits of the claim for a Protection Visa. That is certainly one way of so regarding that ground of review, as it is of so regarding ground three of the notice of appeal. Another way, perhaps, of construing ground three of the application for review, and for that matter, ground three of the notice of appeal, is to regard it as alleging that the Tribunal did not engage with the claim as made by the Appellant for a Protection Visa. This being an appeal, the argument would then be that the Federal Magistrates Court had failed to understand the ground of review, and further, had failed to appreciate that the Tribunal had not dealt with the claim for a Protection Visa as made by the Appellant.

26    Not to deal with the claims made by a person for a Protection Visa would constitute a jurisdictional error. However, it is obvious from the reasons given by the Tribunal that it directly dealt with, considered and reached conclusions about the very claims which the Appellant had made for a Protection Visa. However one approaches ground three of the notice of appeal, it has no merit.

27    For these reasons then, the appeal must be dismissed.

Associate:

Dated:    12 May 2011