WZAOH v Minister for Immigration & Anor [2011] FMCA 299 (2 May 2011)

Last Updated: 4 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOH v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 299

MIGRATION – Protection visa application – Refugee Review Tribunal decision – application for judicial review – Chinese citizen – alleged Falun Gong practitioner.

Migration Act 1958 (Cth), ss.424A(3)(a), 425A, 426A, 441A(4)(c)(i), 441C(4)(a), 474(1), 476(2)(a) Migration Regulations 1994 (Cth), reg.4.35D

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 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 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 Plaintiff S157/2002 v The 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 SZFGD v Minister for Immigration and Anor [2006] FMCA 99 SZGZQ v Minister for Immigration [2007] FCA 62 SZHSQ v Minister for Immigration and Multicultural Affairs and Another (2006) 155 FCR 159; [2006] FCA 1295 SZNNL v Minister for Immigration and Anor [2009] FMCA 714 SZOHJ v Minister for Immigration and Citizenship [2010] FCA 1268 SZOHJ v Minister for Immigration and Citizenship [2011] HCASL 46 WZAOB v Minister for Immigration and Anor [2010] FMCA 868 WZAOB v Minister for Immigration and Citizenship [2011] FCA 162

Applicant:

WZAOH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 38 of 2011

Judgment of:

Lucev FM

Hearing date:

21 April 2011

Date of Last Submission:

21 April 2011

Delivered at:

Perth

Delivered on:

2 May 2011

REPRESENTATION

For 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 38 of 2011

WZAOH

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 Peoples Republic of China who entered Australia on 12 September 2009 on a sub-class 580 (Student Guardian) visa valid until 31 July 2010.[1]
2. On 20 July 2010 the applicant applied to the Department of Immigration and Citizenship[2] for a Protection (Class XA) visa.[3] The applicant claimed persecution arising from her membership and practice of Falun Gong.
3. The applicant’s Protection Visa Application indicates that:
   1. she had completed 12 years of schooling in Shenyang City in China between 1976 and 1988;[4]
   2. she began to study and practise Falun Gong in March 1997 to improve her health, and that she usually practised in public areas such as parks, or at home;[5]
   100. Falun Gong was banned in China in 1999 and she was called to the local police office “to confess my conviction for learning and practising and spreading Falungong ... One month later, I was forced to attend re-educational courses set for Falungong practisers, where I, like many others, was treated badly both physically and spiritually. I was forced to confess what I wanted was to subvert the government and to conduct illegal religion activities”;[6]
   4. for ten years prior to leaving China in September 2009 she had lived at the same address in Shenyang City;[7]
   5. she had held a position as food and beverage manager for a building company for almost ten and a half years immediately prior to leaving China in September 2009;[8]
   6. on 27 April 2009 the applicant obtained a Chinese passport valid for ten years from the Exit and Entry Administration Ministry of Public Security,[9] but says that she “spent money to give to the police for my passport”;[10]
   7. she obtained her visa to leave China legally and left from Beijing Airport on 11 September 2009;[11] and
   8. because the applicant did “not know what will happen to us in the near future” she decided to leave China and borrowed money from friends and relatives in order to come to Australia, and if she went back to China she believes she would “meet much more severe punishment by the government”.[12]
4. In the applicant’s Protection Visa Application she gave a residential address in Parramatta Road, Annandale in New South Wales[13] and a postal address of “11/309 Castlereagh Street, Sydney NSW, 2000.”[14] The applicant gave no contact telephone numbers and did not consent to the Department communicating with her by fax, email or other electronic means.[15]
5. On 28 September 2010 the Department sent the applicant a letter at the Castlereagh Street Address inviting her to attend an interview to discuss her Protection Visa Application.[16] The applicant did not contact the Department to arrange an interview, or to advise that there was a reason why she was unable to attend an interview.[17]
6. On 25 October 2010 a delegate of the first respondent refused the Protection Visa Application on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention.[18]
7. On 24 November 2010 the applicant filed with the Refugee Review Tribunal[19] an application for review of the Delegate’s Decision.[20] The application for review of the Delegate’s Decision listed the applicant’s residential address as being the Parramatta Road Address.[21] The address for correspondence to be sent to was listed as the Castlereagh Street Address.[22]
8. On 24 November 2010 the Tribunal acknowledged receipt of the application for review of the Delegate’s Decision and sent a letter of acknowledgment by registered post to the applicant at the Castlereagh Street Address. That letter included advice to the applicant that it was important to tell the Tribunal immediately if the applicant’s contact details changed.[23]
9. On 14 December 2010 the Tribunal sent, by registered post to the applicant at the Castlereagh Street address, an invitation to appear before the Tribunal.[24] The Tribunal Hearing Invitation was to attend a hearing on 13 January 2011 at 10.00am[25] at a hearing location in Melbourne, Victoria. The Tribunal Hearing Invitation contained the following note:
   • Please note that the hearing has been schedule to take place in Melbourne. If you prefer to appear before the Tribunal in Sydney with a video-link to the Tribunal in Melbourne, please advise the Tribunal in writing by 21 December 2010.[26]
10. The Tribunal Hearing Invitation advised the applicant that the Tribunal had considered the material then before it but was unable to make a favourable decision on that information alone.[27]
11. No request to appear at the Tribunal Hearing by video-link was received by the Tribunal on or before the nominated date of
    21 December 2010. The applicant did not attend the Tribunal Hearing, either in person in Melbourne or by video-link from Sydney, on
    13 January 2011.[28]
12. On 18 January 2011 the Tribunal issued its Decision Record and Statement of Decision and Reasons.[29] The Tribunal sent notification of the Tribunal Decision to the applicant by registered post at the Castlereagh Street Address on 19 January 2011.[30]
13. With no appearance by the applicant before the Tribunal on the scheduled day of hearing, 13 January 2011, the Tribunal, as it is entitled to do, decided to make its decision without taking any further action to enable the applicant to appear before it.[31]

Tribunal Decision

14. On 18 January 2011 the Tribunal Decision affirmed the Delegate’s Decision to refuse to grant a protection visa to the applicant.[32]
15. The Tribunal noted that:
    1. the applicant’s failure to attend the hearing denied the Tribunal an opportunity to satisfy itself on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention;[33]
    2. the applicant:
       1. had provided few details in relation to her practice of Falun Gong and the problems she experienced as a result;[34]
       2. consequently, the Tribunal was unable to be satisfied on the limited evidence before it that the applicant was a Falun Gong practitioner;[35]
    100. there were a number of matters about the applicant’s practice of Falun Gong that the Tribunal would have wished to have discussed with the applicant, but was unable to do so because of the applicant’s non-attendance at the hearing, and the Tribunal reiterated that it was therefore unable to be satisfied that the applicant was a Falun Gong practitioner as she claimed;[36]
    4. the applicant provided no indication as to:
       1. when she was called to the police station concerning her practice of Falun Gong;
       2. what happened when she went to the police station;
       3. whether she was detained for any period of time; or
       4. whether she was charged with any offence;[37]
    5. although the applicant claimed that she was forced to attend re-educational courses set for Falun Gong practitioners she again gave no detail of the courses, including:
       1. where they were held;
       2. for how long she was required to attend;
       3. what the courses consisted of;
       4. how she was physically and spiritually mistreated; or
       5. what happened as a result of her confession to have engaged in illegal religious activities;[38] and
    6. it was therefore unable to be satisfied that the applicant was forced to attend any re-education courses, and together with a lack of information as to what happened after she completed the re-education courses, the Tribunal was unable to be satisfied that the applicant:
       1. ever experienced any difficulties in China as a result of her alleged association with Falun Gong; and
       2. would face a real chance of persecution now, or in the reasonably foreseeable future, because she was a Falun Gong practitioner.[39]

Jurisdictional error

16. The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error.[40] 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 a 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.[41]

Consideration of grounds of application

Ground 1

17. Ground 1 of the application is as follows:
    • 1. The Refugee Review Tribunal committed a serious jurisdictional error by failing to notify the applicant of the hearing and proceeding to deal [with] the matter in the absence of the applicant.
18. The Tribunal Hearing Invitation was sent by registered post to the Castlereagh Street Address, being the address nominated by the applicant as the address to which a notice such as the Tribunal Hearing Invitation ought to be sent.
19. An applicant who is to be invited to appear before the Tribunal must be given notice of the day on which, and the time and place at which, the applicant is to appear.[42] That notice must be by a specified method, and one of the specified methods is by dispatching the document by prepaid post or by other prepaid means to the last address for service provided to the Tribunal by an applicant in connection with the applicant’s application to the Tribunal for review of the Delegate’s Decision.[43] The Tribunal Invitation Hearing was sent by a specified means, namely, registered post, on 14 December 2010, and specified a time and place for hearing. The applicant is deemed to have received the Tribunal Hearing Invitation seven working days after the date of the document, that is, on 21 December 2010.[44] The requisite notice, being 14 days notice of the date scheduled for the Tribunal Hearing, was given in relation to the Tribunal Hearing listed for 13 January 2011.[45] The requirements for notification to the applicant were met by the Tribunal.[46]
20. Where an applicant who has been notified does not appear before the Tribunal at the Tribunal Hearing:
    1. there is no obligation on the Tribunal to attempt to contact an applicant by telephone, and in this case that would have been futile as the applicant provided no telephone contact details; and
    2. the Tribunal may proceed to make a decision without appearance by the applicant.[47]
21. Ground 1 of the application must therefore fail.

Ground 2

22. Ground 2 of the application is as follows:
    • 2. The Refugee Review Tribunal committed another jurisdictional error by failing to comply with the compulsory requirements of s424A Migration Act, with regard to country information used by the second respondent.
23. This ground is misconceived. The Tribunal did not refer to or rely upon any country information to assess the applicant’s claims. Even if the Tribunal had relied upon independent country information, that country information would have fallen within the exception provided by s.424A(3)(a) of the Migration Act, meaning that it would not have been required to be disclosed.[48]
24. Ground 2 of the application must therefore fail.

Ground 3

25. Ground 3 of the application is as follows:
    • 3. The applicant seeks relief under the Migration Act 1958 on the grounds that: The applicant is a citizen ... of China. If the applicant is deported from Australia they will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of Refugees and the 1976 Protocol relating to the Status of Refugees.
26. This ground seeks to have this Court review the facts as found on the paucity of evidence which was before the Tribunal. The function of this Court is to conduct judicial review of the Tribunal Decision, not to assess the merits of the claims.[49] It was for the applicant before the Tribunal at the Tribunal Hearing to affirmatively satisfy the Tribunal of the facts which had to be established to satisfy the criteria for the grant of a protection visa.[50] The inability of the Tribunal to reach a state of affirmative satisfaction as to whether or not the applicant had a well-founded fear of persecution or a real chance of suffering persecution in the future was a consequence of the failure of the applicant to attend the Tribunal Hearing of which she is deemed to have had proper notice. The failure to attend to take up the opportunity to persuade the Tribunal to the requisite state of satisfaction will almost inevitably result in the application being dismissed.[51]
27. No jurisdictional error is established by ground 3. The Tribunal was entitled to find the facts as it did, and this Court is not, in the circumstances outlined above, entitled to review those facts.
28. Ground 3 of the application must therefore fail.

Conclusion

29. For the reasons set out above the Tribunal Decision is not affected by jurisdictional error. The Tribunal Decision is therefore a privative clause decision, and as such, not susceptible to judicial review.[52] The application will be dismissed.
30. The Court will hear the parties as to costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:

Date: 2 May 2011

---

[1] Case Book (“CB”) 58.
[2] “Department”.
[3] “Protection Visa Application”; CB 1-29.
[4] CB 15.
[5] CB 25.
[6] CB 25.
[7] CB 13.
[8] CB 16.
[9] CB 14.
[10] CB 21.
[11] CB 21.
[12] CB 25-26.
[13] “Parramatta Road Address”; CB 12.
[14] “Castlereagh Street Address”; CB 12.
[15] CB 12.
[16] CB 31-32.
[17] CB 51.
[18] “Delegate’s Decision”; CB 35-52.
[19] “Tribunal”.
[20] CB 54-57.
[21] CB 55 and 12.
[22] CB 56.
[23] CB 66.
[24] CB 71-72; “Tribunal Hearing Invitation”.
[25] “Tribunal Hearing”.
[26] CB 71.
[27] CB 71.
[28] CB 79, 87 and 89.
[29] CB 84-91; “Tribunal Decision”.
[30] CB 83.
[31] Migration Act 1958 (Cth), s.426A (“Migration Act”); CB 89.
[32] CB 89.
[33] CB 89.
[34] CB 88.
[35] CB 88.
[36] CB 88.
[37] CB 88.
[38] CB 88.
[39] CB 88-89.
[40] Plaintiff S157/2002 v The 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.
[41] 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.
[42] Migration Act, s.425A.
[43] Migration Act, s.441A(4)(c)(i).
[44] Migration Act, s.441C(4)(a).
[45] Migration Regulations 1994 (Cth), reg.4.35D.
[46] Migration Act, s.425A(3).
[47] NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045; (2006) 152 FCR 592 at 599 per Greenwood J; [2006] FCA 1045 at para.24 per Greenwood J; SZHSQ v Minister for Immigration and Multicultural Affairs and Another [2006] FCA 1295; (2006) 155 FCR 159 at 171-172 per Rares J; [2006] FCA 1295 at paras.62-67 per Rares J; SZNNL v Minister for Immigration and Anor [2009] FMCA 714 at para.31 per Lucev FM.
[48] SZOHJ v Minister for Immigration and Citizenship [2010] FCA 1268 at para.27 per Cowdroy J, and the authorities there cited. The High Court refused special leave in SZOHJ: see SZOHJ v Minister for Immigration and Citizenship [2011] HCASL 46.
[49] WZAOB v Minister for Immigration and Citizenship [2011] FCA 162 at para.14 per North J (“WZAOB Appeal”).
[50] Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ; [1999] HCA 14 at para.187 per Gummow and Hayne JJ; SZGZQ v Minister for Immigration [2007] FCA 62 at paras.13-14 per Greenwood J.
[51] 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; 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 and Anor [2006] FMCA 99 at para.13 per Nicholls FM; WZAOB v Minister for Immigration and Anor [2010] FMCA 868 at para.24 per Lucev FM (from which an appeal by the applicant was dismissed in WZAOB Appeal).
[52] Migration Act, ss.474(1) and 476(2)(a).