WZAOC v Minister for Immigration & Anor [2010] FMCA 869 (10 November 2010)

Federal Magistrates Court of Australia

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WZAOC v Minister for Immigration & Anor [2010] FMCA 869 (10 November 2010)

Last Updated: 12 November 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOC v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 869

MIGRATION – Protection visa application – Chinese national – alleged Falun Gong practitioner – judicial review – whether jurisdictional error – whether denial of procedural fairness.

Migration Act 1958 (Cth), ss.65(1), 425, 425A, 426A, 441A(4)(c)(i), 441C(4) Migration Regulations 1994 (Cth), reg.4.35D(b)

Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 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) 85 ALD 492; [2004] FCAFC 283 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 and Anor [2006] FMCA 99 SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62 SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159; [2006] FCA 1295 SZNNL v Minister for Immigration [2009] FMCA 714

Applicant:

WZAOC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 114 of 2010

Judgment of:

Lucev FM

Hearing date:

5 November 2010

Date of Last Submission:

5 November 2010

Delivered at:

Perth

Delivered on:

10 November 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Mr D Estrin

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) That the application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

PEG 114 of 2010

WZAOC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of the People's Republic of China.[1] She arrived in Australia on 18 September 2009.[2]
2. On 11 December 2009 the applicant applied for a Protection (Class XA) visa.[3] She claimed to fear persecution by reason of her practice of Falun Gong.
3. By letter dated 22 February 2010, the applicant was invited to attend an interview on 1 March 2010 with an officer of the Department of Immigration and Citizenship[4] to discuss her claims and to provide any new information that she wished to have considered.[5] The applicant failed to attend the interview and on 1 March 2010, a delegate of the Minister for Immigration and Citizenship[6] decided not to grant the applicant a protection visa.[7]
4. The applicant applied on 30 March 2010 for a review of the delegate’s decision by the Refugee Review Tribunal.[8]
5. The Tribunal wrote to the applicant on 12 April 2010 advising her that it had considered all the material before it relating to her application, but was unable to make a favourable decision on that information alone.[9] In the s.425 Invitation Letter, the Tribunal:
   1. invited the applicant to give oral evidence and present arguments at a hearing before the Tribunal on 8 June 2010;
   2. advised the applicant that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice.
6. On the day of the scheduled hearing the applicant did not appear before the Tribunal. The Tribunal decided to make its decision without taking any further action to enable the applicant to appear before it.[10]
7. On 9 June 2010 the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.[11]

Tribunal Decision

8. The Tribunal:
   1. accepted that the applicant was a Chinese national; and
   2. noted that she claimed to have suffered serious harm in the past for reasons of her religious and political beliefs, real or imputed, as a practitioner of Falun Gong.[12]
9. The Tribunal commented on the lack of detail in the applicant’s claims. In particular, the Tribunal observed the absence of any information about her experiences from 1999 until she left China in 2009, including any explanation about what prompted her to leave China for Australia almost 10 years after she was allegedly detained. The Tribunal noted that the applicant had therefore failed to provide a very substantial amount of relevant information about her claims. On the evidence before it, the Tribunal was not satisfied that the applicant had suffered persecution in the past in China.[13]
10. The Tribunal observed that as a number of relevant questions remained unanswered it could not be satisfied that the applicant’s claims were credible, such that she might be at risk of Convention-based persecution if she returned to China in the foreseeable future. The Tribunal was not satisfied on the evidence before it that there was a real chance that the applicant would be persecuted in a Convention sense if she returned to China in the foreseeable future.[14]

Jurisdictional error

11. The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error.[15] An error by an administrative tribunal, such as 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.[16]

Grounds of application

12. There are three grounds for the application identified, namely:
    1. the Tribunal has not adequately taken into consideration the applicant’s claims in her application for refugee status;
    2. the Tribunal has ignored relevant considerations; and
    100. there has been a constructive failure by the Tribunal to exercise jurisdiction.

Applicant's grounds

13. The applicant’s grounds lack substance. Ground 1 is an impermissible attack upon the merits of the Tribunal’s decision. Ground 2 does not identify the relevant considerations allegedly ignored. Ground 3 is a conclusion which does not state the ground on which it is based.
14. It is for an applicant to advance whatever evidence or argument he or she wishes to advance in support of a contention of having a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.[17]
15. Section 65(1) of the Migration Act requires the Tribunal to refuse an applicant's application for a protection visa in circumstances where the Tribunal is not affirmatively satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa have been established.[18]
16. The applicant’s application was rejected because, amongst other reasons, she failed to appear before the Tribunal and address any concerns it may have had about her claims.[19] Where, as here, an applicant fails to attend a Tribunal hearing, upon being invited to attend pursuant to s.425 of the Migration Act, rejection of the application is an “inevitable consequence” of the non-attendance.[20]
17. The Tribunal fully considered all the applicant’s claims and based its decision on the information available. That information was sparse, namely:
    1. a claim of detention and mistreatment for a month in 1999 as a consequence of her practice of Falun Gong; and
    2. a requirement to report to the local police station every day after her release from detention.

Further, there was no information about:

100. what actually happened to the applicant following her release in 1999 until she left China in 2009; and

4. why she left China.

18. The applicant did not take the opportunity to elaborate on her claims in person before the Tribunal and the Tribunal was entitled to consider that the applicant’s claims lacked detail. It was clearly open to the Tribunal to remain unsatisfied, on the evidence before it, that the applicant had a well-founded fear of persecution in China for a Convention reason. The Tribunal’s failure to be satisfied was based on a lack of detailed information and does not disclose jurisdictional error. In the circumstances it is an unsurprising outcome.

Compliance with procedural fairness

19. The applicant did not raise procedural fairness as a ground of appeal, and there is no evidence before the Court of any denial of procedural fairness. At hearing the applicant asserted that she did not receive the s.425 Invitation Letter because the overseas student who was collecting her mail did not pass the Tribunal’s letter on to the applicant.
20. Section 425 of the Migration Act requires the Tribunal to invite the applicant to appear before it to present arguments and give evidence.
21. Section 441A(4)(c)(i) of the Migration Act allows the Tribunal to dispatch the s.425 invitation by prepaid post to the “last address for service provided to the Tribunal by the recipient in connection with the review”.
22. By letter dated 12 April 2010, the Tribunal invited the applicant to attend a hearing on 8 June 2010.[21] The s.425 Invitation Letter was sent by the Tribunal to the last address provided by the applicant to the Tribunal at PO BOX 297 Haymarket, NSW,[22] in accordance with s.441A(4)(c)(i) of the Migration Act.
23. A document given to a person by a method specified in s.441A(4) to an address in Australia, is taken to have been received by the person seven working days after the date of the document.[23] The applicant is therefore taken to have received the s.425 Invitation Letter on 21 April 2010. The deemed receipt on this date gave the applicant more than the prescribed minimum 14 day period of notice for her attendance at the Tribunal hearing on 8 June 2010.[24]
24. Section 426A(1) of the Migration Act provides that:
    • If the applicant:
    • (a) is invited under section 425 to appear before the Tribunal; and
    • (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
    • the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
25. Section 426A(1) of the Migration Act allows the Tribunal to proceed to make a decision without appearance by the applicant, and without the Tribunal attempting to contact the applicant by telephone.[25] The Tribunal did proceed to make a decision without appearance by the applicant at the hearing of the applicant’s application, and, in any event, the applicant did not provide a contact telephone number to the Tribunal.
26. Even assuming that the facts are as asserted by the applicant in relation to her alleged non-receipt of the s.425 Invitation Letter to the Tribunal hearing, no denial of procedural fairness occurred.

Conclusion

27. The Tribunal Decision is not affected by jurisdictional error. The application will be dismissed.
28. The Court will hear the parties as to costs.

I certify that the preceding 28Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-eighttwenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 10 November 2010

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[1] “China”.
[2] CB 62.
[3] “protection visa application”; CB 1-31.
[4] “Department”.
[5] CB 36-41.
[6] “delegate”.
[7] “delegate’s decision”; CB 43-51.
[8] “Tribunal”; CB 58-61.
[9] “s.425 Invitation Letter”; CB 66-72.
[10] Under s.426A of the Migration Act 1958 (Cth) (“Migration Act”).
[11] “Tribunal Decision”; CB 76-81.
[12] CB 80 at [25] and [27].
[13] CB 80 at [27].
[14] CB 80-81 at [28].
[15] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[16] 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.
[17] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ; [1999] HCA 14 at para.187 per Gummow and Hayne JJ; SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 at para.11 per Jacobson J.
[18] SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62 at paras.13-14 per Greenwood J; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at para.15 per Ryan, Jacobson and Lander JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at para.17 per Black CJ, Sundberg and Bennett JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
[19] S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283; (2004) 85 ALD 492 at 493 onwards per Ryan, Merkel and Conti JJ; [2004] FCAFC 283 at para.25 onwards per Ryan, Merkel and Conti JJ.
[20] NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at para.5 per French, Emmett and Dowsett JJ; SZFGD v Minister for Immigration & Anor [2006] FMCA 99 at para.13 per Nicholls FM.
[21] CB 66-72.
[22] CB 60.
[23] Migration Act, s.441C(4)(a).
[24] Migration Act, s.425A; Migration Regulations 1994 (Cth), reg.4.35D(b).
[25] SZNNL v Minister for Immigration [2009] FMCA 714 at para.31 per Lucev FM, citing SZHSQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1295; (2006) 155 FCR 159 at 171-172 per Rares J; [2006] FCA 1295 at paras.62-67 per Rares J, and NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045; (2006) 152 FCR 592 at 599; [2006] FCA 1045 at para.24 per Greenwood J.