SZKNQ v Minister for Immigration and Citizenship [2008] FCA 663

FEDERAL COURT OF AUSTRALIA

SZKNQ v Minister for Immigration and Citizenship [2008] FCA 663 Migration Act 1958 (Cth) s 424A

VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 considered SZKNQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

nsd 268 of 2008

LOGAN J

9 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 268 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKNQ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LOGAN J

DATE OF ORDER: 9 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Appeal dismissed. 2. Appellant to pay the First Respondent's costs of and incidental to the appeal to be taxed. 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 WALES DISTRICT REGISTRY NSD 268 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKNQ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LOGAN J

DATE: 9 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellant is a citizen of the Peoples Republic of China. She came to Australia on 9 September 2006. Later that month she lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister responsible for that Department refused her application for a protection visa on 11 November 2006. It is a feature of that application for a protection visa that it has attached to it a statement of the basis of the claim for a protection visa which bears a name and date of birth, each of which is different to the name and date of birth handwritten on the application itself. That difference does not seem to have been noted by the delegate of the Minister who considered the protection visa application. Lamentable though that particular omission may be, it is, given the role of the Refugee Review Tribunal ("Tribunal"), of no moment. That is, because the Tribunal sits in place of the Minister and his delegates, and further because it is quite apparent from the Tribunal's reasons, that it was not only aware of, but particularly considered, the difference that I have mentioned. 2 The Tribunal came to review the delegate's decision as a result of the Appellant exercising the right conferred the Migration Act 1958 (Cth) ("Migration Act") to seek the review of the delegate's decision by that Tribunal. The Appellant annexed to her application for review a further typewritten statement detailing the basis of her claim for a protection visa. The name on that annexed document and the date of birth correspond with that specified originally on the protection visa application. The basis upon which the Appellant claimed that she was entitled to the grant of a protection visa was as follows. 3 She claimed to practice the belief and way of life known as Falun Gong. Her claim was that she had commenced practising Falun Gong in 1997. She claimed that she feared imprisonment following the initial crack down on Falun Gong by Chinese authorities in 1999. She stated that she had witnessed many Falun Gong practitioners being sent to jail and being dismissed from their employment. More particularly, she stated in May 2006 a neighbour had been sent to jail. As a result she stated that she had become more and more afraid of the behaviour of the Chinese Government. She further stated that she planned then to leave China so as to avoid the government seizing and persecuting her. She stated that she got the idea to travel to Australia for seeking "…a protection my life and I was luck to get my passport" [sic]. 4 On 12 January 2007, two letters were sent by the Tribunal to the Appellant. Each of those letters was sent to the address which the Appellant had nominated to the Tribunal as her address for correspondence. The first of those letters was an invitation to comment on information. One feature of that letter is that it expressly highlighted to the Appellant the discrepancy in name which I have noted as a feature of the initial application for a protection visa. The other letter of 12 January 2007 invited the Appellant to come to a hearing of the application by the Tribunal on 1 March 2007 at a time and location specified. The letter stated materially: The tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing you must contact the tribunal immediately. If you do not attend the hearing and the tribunal does not postpone the hearing it can make a decision on your case without further notice. 5 The invitation to comment letter of 12 January 2007 is marked "Returned." The appeal book includes what is apparently a copy of the face of an envelope addressed to the appellant at her nominated address for correspondence. It is marked "RTS." It was submitted to me on behalf of the Minister that those letters meant return to sender. There was no submission to the contrary by the Appellant. It does seem to me to be reasonable to assume that this is the intendment of that marking on the envelope. According to the note in the index to the appeal book the envelope the face of which has been copied enclosed the invitation to comment upon information. 6 The Appellant did not attend the hearing conducted by the Tribunal. The Tribunal proceeded to consider her application for review nonetheless on 6 March 2007. The Tribunal decided to affirm the delegate's decision not to grant the Appellant a protection visa. In so doing the Tribunal expressly directed attention to the discrepancy I have noted in relation to the name and date of birth as between the annexure to the protection visa application and the face of the application itself. The Tribunal also recites in its reasons the history of correspondence, or one should state attempted correspondence, with the Appellant prior to the hearing. Particular reference is made in that regard to the letters of 12 January 2007 which I have mentioned. The Tribunal noted that correspondence sent to the Appellant had been returned and further noted that: The Tribunal has no means of contacting the Applicant and she has not contacted the Tribunal. 7 Having considered such procedural matters the Tribunal went on to consider the claim which she had advanced for a protection visa. The Tribunal considered that the annexure to the initial protection visa application had been attached in error as it was in the name of another, had a different date of birth, and different occupation. 8 The Tribunal went on to consider on its merits the basis of the protection visa claim as set out in the annexure to the review application. The Tribunal stated: The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is well founded, or that it is for the reason claimed. It remains for the Applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making the relevant facts of the individual case will have to be supplied by the applicant himself or herself in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the Applicant's case for him or her nor is the tribunal required to accept uncritically any and all of the allegations made by an Applicant. 9 Relevant authority for these propositions is cited by the Tribunal. Having reflected on the merits of the claim against this background the Tribunal's reasons record the following: Given the lack of detail in the applicant's claims together with the lack of opportunity for the Tribunal to explore the veracity of any of those claims the Tribunal cannot be satisfied that the applicant has been, or is, a practitioner of Falun Gong. The Tribunal cannot be satisfied was, or is, a person of interest to the police in China. 10 Unsurprisingly, in light of this, the Tribunal determined that it was not satisfied that the Appellant was a person to whom Australia had protection obligations under the Refugee's Convention as amended by the Refugee Protocol. 11 From this decision, the Appellant applied to the Federal Magistrates Court for judicial review. The grounds which she advanced before the Federal Magistrates Court were as follows: 1. The Tribunal failed to consider the real chance of risk of being jailed if the applicant returns to her original country. 2. The Tribunal made the decision which is not reasonable. 3. The Tribunal failed to take into account all of my relevant information. 12 The Federal Magistrates Court saw no merit in any of these grounds. I note that the ;earned Magistrate also expressly considered, even though it was not raised as a ground of review, whether the procedural requirements of the Migration Act in relation to the steps leading up to a hearing by the Tribunal had been complied with. The conclusion of the Federal Magistrate was that there had been compliance. 13 In this Court, the grounds of appeal are as follows: 1. The Tribunal failed to consider the real chance of risk of being gaoled if the Applicant returns to her original country. 2. The Tribunal failed to accept that the applicant is a Falun Gong practitioner. 3. The Tribunal appears to have fallen into jurisdictional error by failing to consider all of the relevant information in relation to the Applicant. 14 If only out of an abundance of caution, I have also expressly considered the pre‑hearing steps that were taken by the Tribunal. The following passage from the joint judgment of Sundberg and Hely JJ in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407, with which Gyles J relevantly agreed, is apt. I am reading from paras 15 and 16: The Tribunal invited the appellants to appear to give evidence and present arguments. The invitation and the notice of the time and place of the hearing were embodied in the one document, as ss 425 and 425A contemplate. . . . They were sent to the appellants' address for service at their last residential address appearing on their application for review. By force of s 441C(4) they are taken to have received the document seven working days after the date it bears. As the primary judge said, the fact that they did not become aware of the invitation does not displace the effect of s 441C. . . . s 426A empowered the Tribunal to decide the review in the absence of the appellants and without taking any further action to allow or enable them to appear before it. 15 Their Honours continued, speaking of s 420 of the Migration Act: That section requires the Tribunal to pursue the objectives of providing a fair and just mechanism of review, and to act according to substantial justice and the merits of the case. Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant 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. 16 That is what occurred in this instance. I am satisfied that the invitation to comment letter sent by the Tribunal met the requirements of s 424A of the Migration Act. I am also satisfied that the Tribunal sent, in good time, and in the form and manner required by the Migration Act, an invitation to attend a hearing. 17 As to the merits of the appeal itself, they amount, in essence, to a contention that the appeal should be allowed because the Federal Magistrate failed to find jurisdictional error on one or more of the grounds of appeal specified. 18 In respect of the first ground it is abundantly clear from the reasons of the Tribunal that the Tribunal expressly considered the risk which the Appellant might face were she to be returned to China. It just so happens that the Tribunal was not satisfied that such a risk was presented. The Tribunal was not obliged to act just upon the statement which the Appellant had annexed to her review application, or to accept it uncritically. The same applies to the appeal ground which alleges that the Tribunal failed to accept that the Appellant is a Falun Gong practitioner. 19 Even assuming that the illogicality or irrationality can amount to an administrative law error ground, and there is no need in this case to embark upon a consideration of that somewhat controversial issue, there is nothing illogical or irrational about the Tribunal's failure to be satisfied that the Appellant is a Falun Gong practitioner. 20 The final ground of appeal involves whether the Federal Magistrate fell into error by failing to hold that the Tribunal had not considered all of the relevant information in relation to the Appellant. That relevant information was, undoubtedly, the basis of her claim for a protection visa as annexed to her review application. Yet the reasons of the Tribunal, on their face, demonstrate that the Tribunal has expressly turned its mind to that very claim as detailed in the annexure. There is, therefore, no merit at all in this ground of appeal. 21 It follows, from what I have said, that the appeal must be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.