WZAOI v Minister for Immigration & Anor [2011] FMCA 379 (30 May 2011)

Last Updated: 31 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOI v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 379

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

Migration Act 1958 (Cth), ss.65(1), 425, 425A, 426A, 441A, 441C, 474(1), 476(2)(a), Div.4 Pt 7 Migration Regulations 1994 (Cth), reg.4.35D(6), Sch 2 cl.580

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration & 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 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 [2007] FCA 62 SZHSQ v Minister for Immigration and Multicultural Affairs and Another (2006) 155 FCR 159; [2006] FCA 1295 SZMCN v Minister for Immigration and Anor [2008] FMCA 980 SZNNL v Minister for Immigration and Anor [2009] FMCA 714 WZAOB v Minister for Immigration and Anor [2010] FMCA 868 WZAOB v Minister for Immigration and Citizenship [2011] FCA 162

Applicant:

WZAOI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 49 of 2011

Judgment of:

Lucev FM

Hearing date:

23 May 2011

Date of Last Submission:

23 May 2011

Delivered at:

Perth

Delivered on:

30 May 2011

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 49 of 2011

WZAOI

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 who arrived in Australia on 5 July 2009 on a class TU-580 student guardian visa valid until 31 July 2010.[1] On 26 July 2010 the applicant applied for a Protection (Class XA) visa.[2] The applicant claims persecution arising from her being a Falun Gong practitioner.
2. The applicant’s Protection Visa Application indicates that:
   1. she completed eight years of schooling in the city of Changchun in China between 1977 and 1985;[3]
   2. she had lived at the same address in Changchun for more than nine years prior to her departure from China;[4]
   100. for more than 21 years prior to her departure from China she was employed as a storekeeper and then a restaurant manager in Changchun City;[5]
   4. on 11 June 2008, that is more than a year before she departed from China, the applicant was issued a Chinese passport valid for 10 years from the Exit and Entry Administration Ministry of Public Security in China;[6]
   5. she alleges that she left China “in order to avoid a risk of being jailed by Chinese authorities. I was prosecuted when I was in China as a genuine Falun Gong practitioner”;[7]
   6. she fears that she “will be put into jail if I go back to China. The Chinese authorities will continue prosecuting me”;[8]
   7. she thinks that the “Chinese authorities may harm/mistreat me if I go back”; and she thinks this because she “was put into jail by Chinese authorities. I was prosecuted when I was in China as a genuine Falun Gong practitioner”;[9]
   8. she does not think that she will receive protection if she returns to China because “I was put into jail by Chinese authorities. I was prosecuted when I was in China as a genuine Falun Gong practitioner”;[10]
   9. she left China legally and had no difficulties obtaining a passport in China;[11]
   10. her residential address in Australia was an address in Dora Street, Hurstville, New South Wales;[12] and
   11. her postal address was “11/309 Castlereagh Street, Sydney NSW 2000”;[13] and
   50. the applicant did not consent to the Department of Immigration and Citizenship[14] communicating with her by fax, email or other electronic means and gave no contact telephone number.[15]
3. On 28 September 2010 the Department sent the applicant a letter at the Castlereagh Street Sydney Address inviting her to attend an interview in relation to 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]
4. The delegate refused the Protection Visa Application on 25 October 2010 on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugee Convention.[18]
5. On 24 November 2010 the applicant filed with the Refugee Review Tribunal[19] an application for review of the Delegate’s Decision.[20] In her application for review, the applicant identified her residential address as the Dora Street Hurstville Address and specified her address for correspondence as the Castlereagh Street Sydney Address.[21] The applicant specified that all correspondence be sent to her only at the Castlereagh Street Sydney Address.[22] The applicant did not provide a telephone or a fax number on which she might be contacted.[23]
6. On 17 December 2010 the Tribunal invited the applicant to attend a hearing on 20 January 2011.[24] The Tribunal Hearing Invitation was sent by registered post to the Castlereagh Street Sydney Address specified as the applicant’s address for correspondence.[25] No response was received by the Tribunal.
7. The Tribunal Hearing Invitation was to attend a hearing on 20 January 2011 at 3.00pm[26] at a hearing location in Melbourne, Victoria. The Tribunal Hearing Invitation contained a note that the hearing was scheduled in Melbourne but that if the applicant preferred to appear before the Tribunal in Sydney with a video link to the Tribunal in Melbourne the Tribunal was to be advised by way of a response to the Tribunal Hearing Invitation form.[27]
8. The Tribunal Hearing Invitation advised the applicant that the Tribunal had considered the material then before it but was unable to make a decision favourable to the applicant on that information alone.[28]
9. No request to appear at the Tribunal Hearing by video link was received by the Tribunal.[29]
10. The applicant did not appear before the Tribunal on the day of the Tribunal Hearing.[30] The Tribunal, as it was entitled to do, decided to make its decision without taking any further action to enable the applicant to appear before it.[31]

Tribunal Decision

11. On 24 January 2011 the Tribunal affirmed the Delegate’s Decision to refuse to grant a protection visa to the applicant.[32]
12. The Tribunal found that the applicant’s failure to attend the Tribunal Hearing resulted in claims which were unable to be tested. The Tribunal Decision stated:
    • 28. The applicant has made claims relating to being a Falun Gong practitioner. Had the applicant attended the hearing, the Tribunal would have liked to discuss the details of her involvement with Falun Gong, including how and when she was introduced to Falun Gong, her level of involvement, what this involvement has comprised and any problems she has experienced in connection with her Falun Gong activities. Without further information and on the very limited information before it, the Tribunal is unable to be satisfied of the applicant’s claims of being a genuine Falun Gong practitioner.
    • 29. The applicant has also claimed that she was jailed in the past due to being a Falun Gong practitioner. Had the applicant attended the hearing, the Tribunal would have liked to ask for further details regarding this matter, including when and how she was arrested, her term of imprisonment and what happened to her during her period of imprisonment. The Tribunal would have also wanted to ask about her circumstances following her release from jail. The Tribunal would have also wanted to explore with the applicant how she was able to come to Australia and what has happened to her family members and/or fellow Falun Gong practitioners since she came to Australia. Without further information and on the very limited information before it, the Tribunal is unable to be satisfied of the applicant’s claims that she was previously jailed for being a genuine Falun Gong practitioner.
    • 30. The applicant was put on notice that the Tribunal was not able to make a favourable decision upon the evidence she provided in support of her application. She did not provide further information despite ample opportunity to do so. Nor has the applicant given the Tribunal the opportunity to explore her claims with her at a hearing. Many questions regarding her previous and future circumstances remain unanswered. Due to the lack of detailed information, and in view of the above findings, the Tribunal is not satisfied on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.[33]

Jurisdictional error

13. A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[34] Further, 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.[35]

Grounds of Application

Review ground 1

14. Review ground 1 is in the following terms:
    • The Tribunal based its findings on the information contained in the applicant’s application for a protection visa.

Review Ground 2

15. Review ground 2 is in the following terms:
    • The Tribunal failed to explain why the information is relevant and made a jurisdictional error.

Review Ground 3

16. Review ground 3 is in the following terms:
    • The Tribunal failed to provide the applicant with an opportunity to comment upon it.

Applicant’s submissions

17. At hearing the applicant made no submissions other than to say to the Court that what she had said in her Protection Visa Application was true and that she was afraid that if she were to return to China she would be tortured and abused.

First respondent’s submissions

18. The first respondent submits that:
    1. the applicant has advanced no real arguable grounds in the application;
    2. the first and second review grounds appear to take issue with the fact that the Tribunal had reference to the information provided by the applicant herself, which must have been relevant information and which is not indicative of jurisdictional error;
    100. it is for an applicant to advance whatever evidence or argument she wished to advance in support of her contention that she had a well-founded fear of persecution for a Convention reason and for the Tribunal to then determine if the applicant’s claim has been made out;[36]
    4. the Tribunal is required to refuse the 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;[37]
    5. the third ground of review is baseless. The applicant was provided with an opportunity to comment upon the information but failed to take that opportunity. The applicant cannot complain if her application was rejected because amongst other reasons she failed to take up the opportunity to appear before the Tribunal and address any concerns it may have had about her claims;[38]
    6. the Tribunal fully considered all of the applicant’s claims and based its decision on the information available. The applicant did not take up the opportunity to elaborate on her claims in person before the Tribunal. The Tribunal was therefore entitled to come to the conclusions it reached. 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;
    7. nothing indicates that the Tribunal failed to accord the applicant procedural fairness or failed to carry out a review in accordance with Division 4 Part 7 of the Migration Act;
    8. the Tribunal Hearing Invitation was sent by registered post to the Castlereagh Street Sydney Address nominated by the applicant on her application for review of the Delegate’s Decision. The applicant also failed to provide a telephone or facsimile number. While the applicant’s residential address (the Dora Street Hurstville Address) is different, she clearly indicated on the review form that she wished all correspondence to go to the Castlereagh Street Sydney Address;
    9. the Tribunal sent the Tribunal Hearing Invitation to the applicant in accordance with ss.425 and 425A of the Migration Act, using a prescribed method in s.441A of the Migration Act;[39]
    10. the applicant was also given more than the prescribed period of 14 days’ notice of the Tribunal Hearing[40] and accordingly the requirements of s.425A(3) of the Migration Act were met.

Consideration

Review ground 1

19. This ground of review is truly nonsensical. There can be no complaint based upon the fact that the Tribunal based its findings on information contained in the applicant’s Protection Visa Application. That is information the Tribunal is obliged to consider.
20. 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.[41] 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:
    1. to provide any detailed information in the Protection Visa Application; and
    2. to attend the Tribunal Hearing of which she is deemed to have had proper notice. The failure to attend a hearing before the Tribunal to take up the opportunity to persuade the Tribunal to the requisite state of satisfaction will almost inevitably result in the application being dismissed.[42]
21. The Tribunal has correctly approached its task by determining that if it is unable to be satisfied of those matters, the Tribunal must ‘refuse to grant the visa’.[43]
22. Otherwise, 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.[44]
23. There is no substance in review ground 1, and no jurisdictional error, and it must fail.

Review ground 2

24. Review ground 2 is simply wrong. The Tribunal dealt with such information as it had. It had a paucity of information because of:
    1. the failure of the applicant to include any detailed information beyond conclusory or assumptive statements in her Protection Visa Application, which statements which were in any event brief; and
    2. the applicant’s failure to attend before the Tribunal at the Tribunal Hearing.
25. For reasons otherwise set out in relation to review ground 1 the Tribunal did explain why what information it had was relevant, and why it did not satisfy the criteria for the grant of a protection visa. There was therefore no jurisdictional error by the Tribunal in relation to the assertion made in review ground 2.
26. Review ground 2 is therefore not made out, and must fail.

Review ground 3

27. 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.
28. 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.[45] 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.[46] The Tribunal Hearing Invitation was sent by a specified means, namely, registered post, on 17 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 24 December 2010.[47] 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 20 January 2011.[48] The requirements for notification to the applicant were met by the Tribunal.[49]
29. 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 or other contact details; and
    2. the Tribunal may proceed to make a decision without appearance by the applicant.[50]
30. In this case, the relevant law and procedures were complied with in relation to giving this applicant an opportunity to be heard by the Tribunal at the Tribunal Hearing.
31. Review ground 3 is therefore not made out, and discloses no jurisdictional error, and must therefore fail.

Conclusion

32. The Tribunal Decision does not involve jurisdictional error. The Tribunal Decision is therefore a privative clause decision, and as such, not susceptible to judicial review.[51] The application will be dismissed.
33. The Court will hear the parties as to costs.

I certify that the preceding 33Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirty-threethirty-three (33) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 30 May 2011

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[1] Case Book 51 (“CB”). At CB 51 the visa is said to be a “student visa”, but a class TU-580 visa is a student guardian visa: Migration Regulations 1994 (Cth), Sch 2 cl.580 (“Migration Regulations”); and the Department’s Client Detail files note the grant of the visa as a student guardian visa: CB 65.
[2] CB 1-25 (“Protection Visa Application”).
[3] CB 15.
[4] CB 14.
[5] CB 16.
[6] CB 13.
[7] CB 17
[8] CB 18.
[9] CB 19.
[10] CB 20.
[11] CB 21.
[12] CB 12. (“Dora Street Hurstville Address”).
[13] CB 12 (“Castlereagh Street Sydney Address”).
[14] “Department”.
[15] CB 12.
[16] CB 36-37.
[17] CB 54.
[18] CB 51-55 (“Delegate’s Decision”).
[19] “Tribunal”.
[20] CB 57-60.
[21] Nothing was made of it at hearing, but curiously the notification of the Delegate’s Decision, which had been forwarded to the Castlereagh Street Sydney Address, was returned “Unclaimed” to the Department on 23 November 2010. The Court is left to wonder, especially in the absence of other contact details for the applicant, how it is that she knew of the Delegate’s Decision and came to make the application for review the next day.
[22] CB 59.
[23] CB 58.
[24] CB 82-83 (“Tribunal Hearing Invitation”).
[25] CB 82.
[26] “Tribunal Hearing”.
[27] CB 82.
[28] CB 82.
[29] CB 108.
[30] CB 108.
[31] CB 108; Migration Act 1958 (Cth), s.426A (“Migration Act”).
[32] CB 105-110 (“Tribunal Decision”).
[33] CB 109.
[34] 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.
[35] Citing 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 (“Yusuf”).
[36] Citing Abebe v The 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 (“Abebe”); SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214.
[37] Citing SZGZQ v Minister for Immigration [2007] FCA 62 at paras.13-14 per Greenwood J (“SZGZQ”); SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at para.15 per Black CJ, Sundberg and Bennett JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
[38] Citing S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283; (2004) 85 ALD 492 at 493 per Merkel, Ryan and Conti JJ; [2004] FCAFC 283 per Merkel, Ryan and Conti JJ at para.25 onwards (“S58 of 2003”).
[39] Citing SZMCN v Minister for Immigration and Anor [2008] FMCA 980 at para.33 per Orchiston FM; SZNNL v Minister for Immigration and Anor [2009] FMCA 714 at paras.24-29 per Lucev FM.
[40] Citing Migration Regulations, reg.4.35D(6).
[41] Abebe CLR at 576 per Gummow and Hayne JJ; HCA at para.187 per Gummow and Hayne JJ; SZGZQ v Minister for Immigration [2007] FCA 62 at paras.13-14 per Greenwood J.
[42] S58 of 2003 ALD at 493 onwards per Ryan, Merkel and Conti JJ; FCAFC 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 v Minister for Immigration and Citizenship [2011] FCA 162 (“WZAOB Appeal”).
[43] Migration Act, s.65(1)(b).
[44] WZAOB Appeal at para.14 per North J.
[45] Migration Act, s.425A.
[46] Migration Act, s.441A(4)(c)(i).
[47] Migration Act, s.441C(4)(a).
[48] Migration Regulations 1994 (Cth), reg.4.35D.
[49] Migration Act, s.425A(3).
[50] 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.
[51] Migration Act, ss.474(1) and 476(2)(a).