WZANH v Minister for Immigration & Anor [2009] FMCA 10 (12 January 2009)

Last Updated: 14 January 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZANH v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 10

MIGRATION – Protection visa application – whether well-founded fear of persecution – whether Tribunal considered material before it – whether opportunity to appear before Tribunal – change of address without notifying Tribunal – whether jurisdictional error.

Migration Act 1958 (Cth), ss.36(2), 65(1), 91X, 422B, 425A(1)(a), 426A, 441A(4) and 476 Migration Regulations 1994 (Cth), Schedule 2, Parts 785 and 866

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshutu & Anor (1999) 197 CLR 611; [1999] HCA 21 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 SZFGD v Minister for Immigration & Anor [2006] FMCA 99 SZGZQ v Minister for Immigration [2007] FCA 62 SZJAO v Minister for Immigration & Anor [2007] FMCA 1102 WZANE v Minister for Immigration & Anor [2008] FMCA 1520

Applicant:

WZANH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 136 of 2008

Judgment of:

Lucev FM

Hearing date:

22 December 2008

Date of Last Submission:

22 December 2008

Delivered at:

Perth

Delivered on:

12 January 2009

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Mr A Gerrard

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

PEG 136 of 2008

WZANH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a Chinese national, arrived in Australia on 17 December 2007 on a visitor’s visa.[1]
2. On 21 December 2007 the applicant applied for a Protection (Class XA) visa.[2] On 17 March 2008 the delegate refused the protection visa application.[3] On 13 April 2008 the applicant sought review of the delegate’s decision by the second respondent, the Refugee Review Tribunal.[4] On 18 June 2008 the Tribunal affirmed the delegate’s decision to refuse to grant a protection visa to the applicant.[5]
3. On 15 August 2008 the applicant filed an application under s.476 of the Migration Act 1958 (Cth)[6] seeking that this Court review the Tribunal Decision.

Grounds of application and orders and relief sought

4. The grounds of the applicant’s application are:
   • 1. Apply for Rufugee.
   • 2. Want human right.
   • 3. Practice Fa Lun Gung.[7]
5. The orders sought by the applicant are:
   • 1. Live in Australia.
   • 2. Be free to practice Fa Lun Gung.
   • 3. Become an Australian and freedom.[8]
6. The applicant also claims the following interlocutory relief:
   • 1. I moved from NSW.
   • 2. Post address need change.
   • 3. I need a job.[9]

Applicant’s affidavit

7. On 15 August 2008 the applicant filed an affidavit, sworn on 24 July 2008,[10] in support of the application, in the following terms:
   • 1./2. My name is [name deleted by reason of s.91X of the Migration Act]. I joined Fa Lun Kung Fu membership in 1998. I used to practice Fa Lun Kung Fu in the park in my country everyday. But by the end of 1999 Chinese Government banned. I am not allowed to practice in public but only at home. My family worried that the Government will put me in jail.
   • 3. I lost my job and my friends Police was always outside my home door. I and my family can’t live a normal life.
     • That is the reason I want to stay in Australia. To be free to practice and allow my family to live in peace. I am begging the court to consider my application. Thanks for your time to read my statement.[11]
8. The respondents made no issue of the evident failings in the grounds of the application, nor of the orders and interlocutory relief sought, save to ultimately submit that what was actually being sought from the Court was impermissible merits review and that the grounds failed to disclose any jurisdictional error.
9. In submissions at the hearing before this Court the applicant:
   1. said that he did not attend the hearing before the Tribunal;
   2. asserted that he did not attend the hearing because he did not receive a letter from the Tribunal advising him of the date, sent to him at an address in Sydney, and in any event he moved from Sydney to Perth prior to the hearing date to obtain work; and
   100. due to a lack of knowledge of:
        1. the appropriate procedures; and
        2. the English language,

he had no means to contact the Tribunal when he moved to Perth to obtain employment.

10. There was no evidence before the Court of the reasons why the applicant did not attend the hearing, but there is really no dispute about the essential facts, namely, that the applicant:
    1. did not attend the hearing; and
    2. was sent a letter by the Tribunal, addressed to a Sydney address, advising him of the date of the hearing before the Tribunal.

Issues

11. The issue to be determined is whether there is any jurisdictional error in the Tribunal Decision. Because the applicant has not specifically identified grounds for alleged jurisdictional error in the application, affidavit or oral submissions,[12] the Court, doing the best it can to distil grounds from the material before it, considers the grounds to be:
    1. failure by the Tribunal to take into account integers central to the applicant’s claim;
    2. failure by the Tribunal to exercise its review function; and
    100. a denial of procedural fairness.

Background Facts

Applicant’s claim of persecution

12. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 17 December 2007.[13] On 21 December 2007 the applicant applied for a Protection (Class XA) visa.[14]
13. The applicant claims persecution arising from his practice of Falun Gong. In the statement attached to his protection visa application the applicant states that:
    1. he applied for a protection visa because as a Falun Gong practitioner he feared persecution from the Chinese government if he returned to China;[15]
    2. he was introduced to Falun Gong in 2003 through a friend and thereafter became an active practitioner;[16]
    100. in early 2007 his workplace leaders questioned and cautioned him because he was a Falun Gong practitioner, which was against the Government, and his workplace leaders requested that he quit Falun Gong and change his beliefs or he would face a serious condition, but, notwithstanding this request, he continued to practise Falun Gong;[17] and
    4. in August 2007 he was formally warned by local security, who also checked his home, that he would lose his job and would be arrested if he continued to practice Falun Gong, and his family therefore encouraged him to leave China.[18]
14. The applicant’s protection visa application indicates that he left the Peoples Republic of China legally and had no difficulty obtaining travel documents.[19]
15. In his protection visa application the applicant:
    1. gave his residential and postal address in Australia as 38 Norval St, Auburn NSW 2144;[20]
    2. gave no telephone contact number and did not agree to communication from the Department of Immigration and Citizenship[21] by fax, email or electronic means, and gave no contact details for those means of communication;[22]
    100. requested that all written communications be sent to him at the address set out in sub-paragraph (a) above;[23] and
    4. provided no authorised recipient or agent details.[24]
16. The Department acknowledged receipt of the protection visa application in a letter dated 4 January 2008,[25] in which it specifically advised the applicant that if he changed his address for more than 14 days he must tell the Department of his new address and how long he intended living there (at the changed address) on the appropriate form, which was specified, and that if he did not inform of a change of address:
    • you will be taken to have received letters and notifications about your application sent to the last address you have given the Department.[26]
17. On 25 February 2008 the applicant submitted to the Department change of address details on the appropriate form[27] nominating his residential address and address for correspondence as “7/20 Northumberland Rd, Auburn, NSW, 2144”.[28]

Procedural history before the Delegate and Tribunal

18. The delegate refused the protection visa application on 17 March 2008.[29] Advice of the delegate’s refusal was sent to 7/20 Northumberland Rd, Auburn, NSW.[30]
19. On 13 April 2008 the applicant sought review of the delegate’s decision by the Tribunal.[31] In the application for review of the delegate’s decision the applicant nominated his residential address and address for all correspondence in connection with the review as 7/20 Northumberland Rd, Auburn, NSW, 2144.[32] The applicant did not nominate an authorised recipient for correspondence.[33]
20. On 5 May 2008 the Tribunal wrote to the applicant inviting him to attend a hearing on 18 June 2008.[34] In addition to the invitation to attend the hearing the letter indicated that:
    1. the Tribunal had considered the material before it and was unable to make a favourable decision on that information alone;
    2. the applicant should contact the Tribunal immediately if there was a difficulty with the hearing proceeding on the nominated date; and
    100. the Tribunal may make a decision without further notice to the applicant if the applicant failed to attend the hearing.[35]
21. The 5 May 2008 letter was sent, by registered post, to the Tribunal at the last address provided by the applicant to the Tribunal, namely, 7/20 Northumberland Road, Auburn, NSW, 2144.[36] No response was received by the Tribunal. The applicant:
    1. did not have an advisor; and
    2. had not provided a telephone number,

so there was no alternative means of the Tribunal contacting him.

22. The applicant did not appear before the Tribunal on the day of the scheduled hearing, 18 June 2008.[37] The Tribunal, under s.426A of the Migration Act, decided to make its decision without taking any further action to enable the applicant to appear before it.[38]
23. On 18 June 2008 the Tribunal Decision affirmed the delegate’s decision to refuse to grant a protection visa to the applicant.[39]
24. On 19 June 2008 the Tribunal sent a letter by registered post to the applicant at the Northumberland Rd, Auburn address and advised that the Tribunal Decision would be formally handed down on 10 July 2008 in Sydney.[40]
25. The Tribunal received a “Change of Contact Details” form from the applicant, sent by facsimile, nominating separate residential and postal contact addresses in the Perth suburbs of Mount Lawley and Bentley respectively and nominating the applicant as the authorised recipient at the Bentley address.[41] The “Change of Contact Details” form was sent from a Perth facsimile number, and bears a facsimile date sent of “23/06/2007” at the bottom of the facsimile, which as to year sent is obviously wrong.[42] The form, signed by the applicant, was dated 2 June 2008, but based on the date at the top of the facsimile which says that the facsimile was received by the Tribunal on 3 July 2008, the Court finds that it was not received by the Tribunal until 3 July 2008.[43]
26. On 7 July 2008 the Tribunal received, by facsimile, a copy of the first page of its letter of 19 June 2008 to the applicant, bearing a handwritten note as follows:
    • Please change the time As I moved to Perth[44]
27. The annotated letter was sent from the same Perth facsimile number as the “Change of Contact Details” form and bears a facsimile date sent of “27/06/2007”, which as to year sent is again obviously wrong. The Court finds that it was also wrong as to day and month, given that it was received by facsimile, by the Tribunal, on 7 July 2008,[45] which is the date upon which the Court finds that it was received by the Tribunal.
28. The Tribunal did not change the time for handing down of the Tribunal Decision,[46] but sent notification of the Tribunal Decision to the nominated authorised recipient address in Bentley.[47]
29. Also sent by facsimile with the annotated letter and received by the Tribunal on 7 July 2008 was a further “Change of Contact Details” form, signed by the applicant, this time dated 1 July 2008, changing the applicant’s postal address from the previously nominated Mt Lawley address to the Bentley address previously nominated by the applicant as the authorised recipient address. The authorised recipient details (the applicant himself) and address (the Bentley address) remained unchanged.[48]
30. Subsequently the applicant sent a letter by facsimile to the Tribunal, received by the Tribunal on 6 August 2008, saying that he had received a tax invoice sent by the Tribunal but had not received a copy of the Tribunal Decision, and requested that a copy of the “decision letter” be sent to a post office box address in Northbridge, an inner city Perth suburb.[49] The Tribunal sent a copy of the Tribunal Decision to the applicant at the nominated post office box address on 6 August 2008.[50]

Tribunal Decision

31. The issue identified in the Tribunal Decision was whether under s.65 of the Migration Act the decision-maker was satisfied that the prescribed criteria for the grant of a visa had been met.[51] The Tribunal referred to the relevant criterion under s.36(2) of the Migration Act for the grant of a class XA protection visa as being whether the Minister (the first respondent) was satisfied that Australia had protection obligations towards the applicant, and the further criteria for the grant of a protection visa as set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994 (Cth).[52] The Tribunal identified the relevant elements of the Convention definition of “refugee”,[53] and identified that there was a question as to whether the applicant had a well-founded fear of persecution.[54]
32. The Tribunal goes on to say that:
    1. it wrote to the applicant on 5 May 2008 and invited the applicant to the hearing to give oral evidence;[55]
    2. the invitation was sent to the last address provided to the Tribunal by the applicant, in accordance with ss.425A(1)(a) and 441A(4) of the Migration Act;[56]
    100. no response was received from the applicant;[57]
    4. it had no other contact details for the applicant;[58]
    5. the applicant had no advisor;[59] and
    6. the applicant did not attend the Tribunal hearing, and that, in all the circumstances it determined under s.426A of the Migration Act to proceed with the hearing, without taking any further steps to enable the applicant to appear.[60]
33. The Tribunal set out in full the applicant’s statement attached to the protection visa application,[61] which is summarised above.[62]
34. The Tribunal states that it is for the applicant to satisfy the Tribunal that the statutory elements of the claim are made out, by supplying to the Tribunal the relevant facts in sufficient detail to enable the Tribunal to establish those facts, and that the Tribunal is not obliged to accept matters uncritically.[63]
35. The Tribunal’s findings and reasons then provide as follows:
    1. the applicant did not attend the hearing;
    2. the Tribunal was left with claims which are untested and stated in general terms;
    100. the applicant's claims lacked detail;
    4. the Tribunal was unable to explore with the applicant:
       1. where and how he practised Falun Gong in China;
       2. how his work came to know he was a Falun Gong practitioner;
       3. the details of his warning by local security in August 2007; and
       4. where and whether he currently practises Falun Gong in Australia;
    5. that the Tribunal had been unable to establish the facts of the matter; and
    6. the information the applicant submitted did not provide the necessary detail for the Tribunal to be satisfied as to the veracity of his claims or that he had a well-founded fear of persecution.[64]
36. Essentially the Tribunal found that the applicant’s failure to attend the hearing resulted in claims which were unable to be tested and as a consequence of which it was unable to reach the requisite state of satisfaction under s.36(2)(a) of the Migration Act.

Whether jurisdictional error in Tribunal Decision

What constitutes jurisdictional error

37. A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[65] An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
    1. identifies a wrong issue;
    2. asks the wrong question;
    100. ignores relevant material; or
    4. relies on irrelevant material,

in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[66]

Tribunal Decision – consideration of whether jurisdictional error

38. The applicant advanced no arguable grounds of jurisdictional error in the application or the Applicant’s Affidavit. As filed they assert little but that the applicant deserves protection. Essentially, on the material provided by the applicant, the Court is asked to make a merits judgment, or at least review the merits of the Tribunal Decision in relation to the facts.
39. Proceedings before the Tribunal are inquisitorial. The Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument the applicant wishes to advance in support of a contention of having a well-founded fear of persecution for a Convention reason.[67]
40. The Tribunal considered the ultimate question of satisfaction: namely, whether it was satisfied that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal considered the ultimate question in proper form, having regard to:
    1. the prescribed criteria;
    2. sections 36(2) and 65(1) of the Migration Act and Parts 785 and 886 of Schedule 2 to the Migration Regulations;
    100. the definition of “refugee”; and
    4. that element of the definition of “refugee” as to whether there was a well-founded fear based on a “real chance” of persecution for a Convention reason.[68]
41. The Tribunal considered the applicant’s claims based on the information available. The applicant did not take up the opportunity to appear in person and elaborate on his claims in person before the Tribunal. The Tribunal was therefore entitled to come to the conclusion that the applicant’s claims were untested, stated in general terms and lacking in detail. The Tribunal’s failure to be satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa had been established because of a lack of detailed information does not amount to a jurisdictional error.
42. The foregoing analysis is sufficient to dispose of any argument that the Tribunal failed in any way to take into account any matter relevant to the applicant’s claims or that it failed to exercise its review function.[69]
43. Where an applicant fails to attend a Tribunal hearing, rejection of the application by the Tribunal is almost an “inevitable consequence” of the non-attendance.[70]
44. The Tribunal’s obligations concerning procedural fairness are codified in s.422B and Division 4 of Part VII of the Migration Act. Significantly, for present purposes, ss.425A(1)(a) and 441A(4) when read together oblige the Tribunal to send notices to the applicant at the applicant’s last residential or business address notified by the applicant to the Tribunal. The Tribunal here sent a letter inviting the applicant to the hearing on 18 June 2008 to the Northumberland Avenue, Auburn address which was the last known residential address notified to the Tribunal by the applicant. There is no evidence of when the applicant moved to Western Australia, but it is irrelevant in any event, for the evidence establishes that the Tribunal was not notified of a new address in Western Australia for the applicant until 3 July 2008, some 15 days after the Tribunal Decision was made. In the circumstances, the Migration Act did not oblige the Tribunal to do anything. Having sent an invitation to the applicant at the applicant’s last known residential address, the applicant having failed to attend the hearing, the Tribunal having considered the matter, and the Tribunal Decision having been made before any further notification of a new address for the applicant, does not constitute jurisdictional error by way of a lack of procedural fairness. [71]
45. The applicant was able to advise the Department once and the Tribunal three times of changes to his address details. Thus, the evidence does not sustain the assertion made before this Court by the applicant that a lack of knowledge of procedure and of the English language precluded him from communicating with the Tribunal. Even if this were a ground of jurisdictional error (which it is not) it is not made out on the facts.

Conclusion

46. The Tribunal's Reasons for Decision contain no jurisdictional error. The application will therefore be dismissed.
47. The Court will hear the parties as to costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Lucev FM

Acting Associate: Michele Lord

Date: 12 January 2009

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[1] Court Book (“CB”) 2, 4, 27 and 28.
[2] CB 1-30.
[3] CB 44-52.
[4] “Tribunal”. CB 60-68.
[5] CB 92-98 (“Tribunal Decision”).
[6] “Migration Act”.
[7] Application. Transcribed from the application without amendment.
[8] Application. Transcribed from the application without amendment.
[9] Application. Transcribed from the application without amendment.
[10] “Applicant’s Affidavit”.
[11] Applicant’s Affidavit, paras.1-3. Transcribed from the affidavit without amendment.
[12] Despite the inherent difficulty in doing so where the applicant is a self represented litigant, who does not speak English (CB 1), and is assisted by an interpreter, the Court formally asked the applicant at hearing if he was able to identify jurisdictional error in the Tribunal Decision, referring specifically to the matters constituting jurisdictional error set out below at para.37. The applicant was not able to do so.
[13] CB 2, 4, 27 and 28.
[14] CB 1-30.
[15] CB 29 and 95.
[16] CB 29 and 95-96.
[17] CB 29-30 and 96.
[18] CB 30 and 96.
[19] CB 11.
[20] CB 2.
[21] “Department”.
[22] CB 2.
[23] CB 23.
[24] CB 23-24.
[25] CB 34-36.
[26] CB 36.
[27] CB 42-43.
[28] CB 42.
[29] CB 44-52.
[30] CB 44.
[31] CB 60-68.
[32] CB 61-62. The application form provided that “all correspondence will be sent ONLY to your address provided below” (CB 62 – capitalised emphasis in the application form), following which the applicant inserts the Northumberland Rd, Auburn address.
[33] CB 62.
[34] CB 69-74.
[35] CB 69.
[36] CB 69.
[37] CB 78-79.
[38] CB 95.
[39] CB 92-98.
[40] CB 81-82.
[41] CB 77.
[42] CB 77.
[43] CB 77.
[44] CB 83. Transcribed from the notation without amendment.
[45] CB 83.
[46] CB 85.
[47] CB 89-90.
[48] CB 84.
[49] CB 107.
[50] CB 109.
[51] CB 93.
[52] CB 93. “Migration Regulations”.
[53] CB 93-94.
[54] CB 94.
[55] CB 95.
[56] CB 95.
[57] CB 95.
[58] CB 95.
[59] CB 95.
[60] CB 95.
[61] CB 95-97.
[62] At para.13 above.
[63] CB 97. Citing relevant case law including Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 per Kirby J.
[64] CB 97.
[65] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
[66] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ; WZANE v Minister for Immigration & Anor [2008] FMCA 1520 at para.32 per Lucev FM.
[67] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 per Jacobson J.
[68] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 at 274-275 per Brennan CJ, Toohey, McHugh and Gummow JJ. See also Minister for Immigration and Multicultural Affairs v Eshutu & Anor (1999) 197 CLR 611 at 650-651 per Gummow J; [1999] HCA 21 at paras.128, 130 and 131 per Gummow J; SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at para. 15 per Black CJ, Sundberg and Bennett JJ; SZGZQ v Minister for Immigration [2007] FCA 62 at paras.13-14 per Greenwood J; SZJAO v Minister for Immigration & Anor [2007] FMCA 1102 at paras. 28-30 per Lucev FM.
[69] See “grounds” (a) and (b) in para.11 above.
[70] NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at para.5 per French, Emmett and Dowsett JJ; see also SZFGD v Minister for Immigration & Anor [2006] FMCA 99 at para.13 per Nicholls FM.
[71] S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 per Merkel, Ryan and Conti JJ at paras.25-26.