NBAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 971

FEDERAL COURT OF AUSTRALIA

NBAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 971 NBAZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR NSD 2481 of 2005 ALLSOP J 28 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 2481 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NBAZ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 28 JULY 2006

WHERE MADE: SYDNEY

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. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 2481 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NBAZ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: ALLSOP J

DATE: 28 JULY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from orders made by the Federal Magistrates Court on 24 November 2005 in which that court dismissed an application for judicial review of a decision of the Refugee Review Tribunal made on 11 December 2003 and handed down on 8 January 2004. 2 The appellant is a citizen of the People's Republic of China who arrived in Australia in December 2002, in which month he lodged an application for a protection visa. A delegate of the Minister refused that visa and the applicant applied for review. 3 In his application for review in section D of the application form, the provision of information as to why he considered himself a refugee, there was written on his behalf in English the following: Please see my file at DIMIA. 4 The application was made out in English by the applicant's then migration agent. There is no suggestion that it was not otherwise signed by the appellant. Thus the totality of the DIMIA file can be seen to be information that the applicant gave for the purpose of the application. In those circumstances s 424A does not apply because of s 424A(3)(b). Therefore the case is not complicated by those considerations. 5 The claims of the appellant are helpfully summarised in the respondent's written submissions and were to the following effect: (a) That the appellant worked as a construction worker until he was laid off in 2000. (b) On 21 February 2001 he together with other unemployed people, participated in a protest against "xiagang," which means the policy of laying off people or being laid off, outside the building where the municipal government was located. The police were said to have arrived at the protest and arrested the appellant. (c) The appellant was detained for 18 hours and beaten by police. (d) After he was released the appellant embarked on what he referred to as "a long march" to the Provincial People's Committee in company with others. (I take it the expression "long march" was intended to convey a degree of political overtones to the march.) (e) The appellant protested, complaining to the higher authorities for a year and a half and he says that he was put on a black list. 6 As can be seen from these assertions, they are matters of some gravity if correct. 7 The appellant was sent, by the Tribunal, care of his migration agent, a letter in September 2003. The letter was dated 17 September 2003. The letter, which was in a standard form, is contained at pages 50 and 51 of the appeal book. It invited the appellant to attend a hearing. It commenced with a paragraph that said: The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone. 8 The letter clearly on the first page identified the time and date of the hearing. Though there is no evidence before me about it, I assume for the purposes of this appeal that the appellant's command of English was inadequate for him personally to understand the letter and that he relied upon his then migration agent to make an accurate and careful translation of the letter for him. 9 Some communication took place between the appellant and the migration agent because it was established at the hearing below that the appellant's signature appears on the response to the hearing invitation form. In that form it was stated that the appellant did want to appear at the hearing. He did not attend. 10 The evidence below as to why this occurred was dealt with by the Federal Magistrate. I should say that it appears to have been dealt with in oral submissions. Paragraph 21 of the Federal Magistrate's reasons was in the following terms: In oral submissions the applicant told the court that he relied on his migration agent who may have missed things and specifically that he did not receive the notification of the Tribunal hearing. However, he also acknowledged that the signature on the Invitation to Hearing form was his, although he indicated that he signed documents without knowing a great detail about the content of the documents. There was no evidence to this effect before the Court. 11 The Magistrate, as can be seen from paragraph 21, took oral submissions but said there was no evidence before the court to this effect. I am not aware of what steps had been taken in the Magistrates Court for the adducing of evidence and whether or not it would have been more appropriate to take oral evidence on these matters of fact. But in any event, in paragraph 22 of the Magistrate's reasons she took the oral submissions as, in effect, proven. The Magistrate's reasons at paragraphs 22, 23 and 24 are in the following terms: [22] However, taking these claims at their highest, in effect the applicant seeks to blame his migration agent for his failure to attend the Tribunal hearing. There are, however, a number of authorities in relation to such contentions. Thus in B41/2003 v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCA 30, (upheld on appeal [2005] FCAFC 4), it was held that where an applicant chose to act on the advice of his migration agent there was no denial of procedural fairness and that the applicant could not complain that his actions taken in reliance upon advice received from his migration adviser led to his being denied procedural fairness. The statement that negligence or incompetence of an adviser does not produce a denial of procedural fairness was accepted by Tamberlin J in SCDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531, (also see Applicant M172 v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FMCA 23 in which it was pointed out that Australian authorities required some defect in the decision-making process). [23] In this instance the Tribunal's notice to the applicant was sent in accordance with the statutory requirements of the Migration Act 1958 (C´th) . It was sent to each of the addresses notified in the application for review including the applicant's notified home address. Although the applicant asserts that he did not receive the notice, the Tribunal complied with its obligations to give him notice of the hearing and the applicant signed the response to hearing form. [24] Within the framework of the Migration Act 1958 (C´th) there was no failure to give the applicant an opportunity to appear before the Tribunal. The Tribunal was entitled under section 426A of the Migration Act 1958 to make a decision on the application for review in the absence of the applicant. The complaints that he makes about the conduct of the migration agent do not establish a jurisdictional error on the part of the Tribunal. 12 The Tribunal proceeded to determine the appellant's review without hearing from him. As the Federal Magistrate said in paragraphs 23 and 24, once the Tribunal could be said to have invited the applicant to appear before it pursuant to s 425 in a manner and in a form compliant with s 425A and 441A (as was the case here), the Tribunal was authorised by s 426A to proceed to determine the matter if the applicant for review did not attend the hearing. 13 Regrettably for the appellant, the contents of paragraph 22 of the Federal Magistrate's reasons are reflective of the law. If the appellant's migration agent negligently failed to tell him of the correct date, that does not bring about any error in the Tribunal in hearing the matter in circumstances where it was authorised to deal with the matter by reason of the provisions of the Act to which I have just referred. Therefore, to the extent that the appellant claims on appeal that there was error in the Magistrate's manner of dealing with this aspect of the matter, I reject that part of the appeal. 14 Turning more generally to the appeal, I do not propose to traverse the careful reasons of the learned Federal Magistrate. She dealt with a rejection of the claims that had been made in the application set out at page 134 of the appeal book. 15 My agreement with the learned Federal Magistrate in this respect is perhaps best dealt with for the benefit of the appellant by referring to the reasons of the Tribunal. The first part of the reasoning of the Tribunal rested on the difficulty that the Tribunal had in accepting the material unexplained. The Tribunal had asked for the appellant to be present because it was unable to be satisfied on the material that it had that the appellant had a well-founded fear of persecution. 16 In circumstances where the Tribunal is not able for itself to reach that state of satisfaction, the Act requires that the visa be refused. Thus underlying the whole of the Tribunal's reasons is the fact that without assistance from the appellant, the Tribunal was not in a position to be satisfied of the fundamental criterion for consideration, that being the application of article 1A(2) of the Refugees Convention. 17 The Tribunal then went on for over a page to effectively make findings of fact based on independent country information. The Tribunal appears to have drawn conclusions about the genuineness or accuracy of the claims by reference to the country information and by reference to the appellant's information. In a sense such specificity of fact-finding was unnecessary. If the Tribunal could not be satisfied from the material of the application of article 1A(2) and needed the assistance of the appellant in relation to matters of concern, and if the appellant did not provide that information because of his absence, that of itself is sufficient to require by reason of s 65 the visa to be refused. 18 I have had recourse to the written submissions filed on behalf of the respondents and I will leave them with the file. I am in general agreement with them. 19 The notice of appeal stated as follows: 2. Refugee Review Tribunal had bias against me and did not consider my application according to the Migration Act 1958. 3. The Tribunal did not notify the reasons that it would be based for refusing my application for a protection visa, I therefore could not provide reasonable response to those doubt. 4. I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge did not seem to consider my application in more details and refused my application on my haring [sic] date. 5. I had put forward my argument, land [sic] grounds of my application at the court, and I don't think my application has been considered reasonably. 20 To the extent that the magistrate has dealt with these matters I am in agreement with the reasons of the Federal Magistrate. 21 Part of the notice of appeal, in particular paragraph 4, seems to assume that the Magistrate's obligation was to hear the review again. The appellant is unrepresented and is a Chinese national who I assume has little detailed familiarity with the Australian legal system. For his benefit I would simply make the following explanation. The decision on the merits of the visa application is dealt with at two levels. The Minister or her delegate is the first level and a full review by the Tribunal is another level. At both those levels the task is to assess the personal circumstances of the applicant, by reference amongst other things to country information, and to make a decision as to the application of the Refugees Convention according to law. 22 Those two levels of review are done by the executive government of this country. A separate and independent arm of government comprises the judges and the courts. Their task, that is, the task of the Magistrates Court and this Court on appeal, is not to hear the application for a visa. The courts have no power to grant a visa. They have no power to refuse to grant a visa. Their task is to ascertain whether the executive government, that is in this case, the Tribunal, acted lawfully, that is, that it followed the provisions of the statute which set out what its authority was and that it undertook the review according to law. 23 The Federal Magistrate's reasons display why her Honour thought that the Tribunal had acted lawfully. I am in agreement with her Honour. Unfortunately for the applicant, the failure to appear in the circumstances of his case made it almost impossible for the Tribunal to reach any other decision even if it made findings of a character that to some degree did not have to be made. 24 If in fact the migration agent failed to tell the applicant of the correct date of the hearing this is most regrettable. I do not propose to make positive findings about that matter because for the reasons given by the Magistrate, with which I agree, the failure of the agent if there was a failure is not something which means that the Tribunal acted unlawfully. 25 Therefore in all the circumstances my conclusion is that the appeal should be dismissed and the orders of the court are: (1) the appeal be dismissed. (2) the appellant pay the respondent's costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.