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SZOSM & Ors v Minister for Immigration & Anor [2011] FMCA 50 (2 February 2011)

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SZOSM & Ors v Minister for Immigration & Anor [2011] FMCA 50 (2 February 2011)

Last Updated: 3 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOSM & ORS v MINISTER FOR IMMIGRATION & ANOR
[2011] FMCA 50

MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – invitation to Tribunal hearing sent but not received – deemed receipt of invitation to Tribunal hearing – merits review unavailable in judicial review proceedings.


Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZOBI v Minister for Immigration & Citizenship (No. 2) [2010] FCAFC 151

First Applicant:
SZOSM

Second Applicant:
SZOSN

Third Applicant:
SZOSO

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 2344 of 2010

Judgment of:
Cameron FM

Hearing date:
2 February 2011

Date of Last Submission:
2 February 2011

Delivered at:
Sydney

Delivered on:
2 February 2011

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondent:
Australian Government Solicitor

ORDERS

(1) The application be dismissed.
(2) The first and the second applicants pay the first respondent’s costs fixed in the amount of $4,800.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2344 of 2010

SZOSM

First Applicant


SZOSN

Second Applicant


SZOSO

Third Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent


REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicants are citizens of China where it is claimed the first applicant practised Falun Gong. The first applicant alleges that while in China she was a Falun Gong practitioner and that this led to her being arrested, detained, and fined. After her arrival in Australia on 13 August 2009 the first applicant lodged an application for a protection visa. The application included, as members of her family unit, her husband and daughter who are the second and third applicants.
  2. The application was refused by a delegate of the first respondent (“Minister”) on 17 June 2010. The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
  3. In these judicial review proceedings, the Court cannot rehear the applicants’ application for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”) and Plaintiff S157/2002 v the Commonwealth (2003) 211 CLR 476.
  4. For the reasons which follow, the application will be dismissed.

Background facts

  1. The facts alleged in support of the applicants’ claim for protection visas are set out on pages 4 – 6 of the Tribunal’s decision. Relevantly these are as follows.
  2. In a statement attached to her protection visa application, the first applicant claimed that:
    1. she joined Falun Gong in July 1998 and each evening from 7.00 to 9.00 pm she attended mass practice at the People’s Square in Yanji City;
    2. she suffered from severe arthritis, very bad pain and numbness in her limbs due to her work in the construction industry. She gradually recovered after she started to practise Falun Gong;
    1. in July 1999, Falun Gong was banned and at a workplace meeting to study an urgent circular which had been issued by the Chinese Communist Party to ban Falun Gong, she voiced her dissent to the circular citing her own experience as a Falun Gong practitioner. As a result, she was sent on an “Ideology Transformation Class” and her pay was stopped for a month. After this, she stopped practising Falun Gong because she did not wish to be punished further;
    1. she was laid off from her job and started a delivery business with her husband in August 2004. On 6 February 2007, whilst on a delivery trip, they had a motor vehicle accident and were both injured and, as a result, she resumed her practice of Falun Gong in the belief that it would help her get better. She gradually recovered from her injuries and continued her practice of Falun Gong;
    2. on 3 August 2008, the police raided their house on the pretext of checking household registration and found a demonstration tape by the founder of Falun Gong. The first applicant was taken to the police station where she was threatened and verbally abused. At the police station, she refused to accept that she had breached any law and, as a result, she was detained for 15 days and fined 20,000 yuan. Whilst in detention, the police also took off all her clothes before allowing her to practise Falun Gong; and
    3. her daughter became depressed due to the persecution of her mother, her study results dropped dramatically, she became quiet and she lost her friends.

The Tribunal’s decision and reasons

  1. On 22 July 2010, the Tribunal wrote to the applicants pursuant to s.425 of the Act to advise them that it had considered all the material before it but was unable to make a favourable decision on that material alone. The Tribunal invited the applicants to a hearing on 23 September 2010 to give evidence and present arguments. The applicants were advised that if they did not attend the hearing, the Tribunal might make a decision on their application without further notice. The evidence in the bundle of Relevant Documents (“RD”), which is exhibit A, indicates that the invitation was returned to the Tribunal and that on the envelope which enclosed the invitation it was noted that the first applicant had left the address to which the letter had been sent.
  2. The Tribunal received from the applicants no response to the hearing invitation and they did not appear before it on the day and at the time they were scheduled to appear. In the circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicants to appear before it.
  3. After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the United Nations Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967.
  4. The Tribunal was not satisfied on the evidence which it had that the first applicant had suffered persecution in the past, or that she had a well-founded fear of persecution if she returned to China in the foreseeable future for reasons of race, religion, nationality, political opinion, or because of her membership of a particular social group. This was because:
    1. the claims before it were lacking in essential detail. The Tribunal found that, while the first applicant claimed to have been practising Falun Gong, there were no details about how she began practising it, nor how the police knew to search her house. There were also no details in her application in relation to what had happened to her after August 2008; and
    2. the Tribunal could not question the applicants on the veracity of their claims as, although they had been invited to appear at a hearing before the Tribunal, they did not do so, leaving their claims unclarified and the Tribunal’s questions unanswered.

Proceedings in this Court

  1. The grounds of the application commencing these proceedings were pleaded as follows:
  2. The applicants also submitted, in substance, that the Tribunal’s decision should be set aside because they had not received its letter inviting them to a hearing and thus they had been unaware that the Tribunal’s hearing was to take place.

Decision made without a hearing

  1. The first matter to consider is whether any error is disclosed by reason that the Tribunal proceeded to make its decision without a hearing. In this regard, the Minister conceded that the applicants had not received the hearing invitation. The Minister also conceded that the applicants had, at all relevant times, lived at the address to which the hearing invitation had been sent. That means that the notation on the envelope enclosing the letter, in the form it took when it was received by the Tribunal upon its return, and was to the effect that the first applicant had left the stated address, was incorrect.
  2. To determine whether the Tribunal erred by proceeding to make a decision without a hearing, reference must be made to the statutory regime which applies in the circumstances.
  3. Section 425 of the Act relevantly provides that the Tribunal must invite an applicant to appear before it to give evidence or present arguments relating to the issues arising in relation to the decision under review if it cannot decide the review in the applicant’s favour on the basis of the material before it. Section 425A of the Act provides:

(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4) The notice must contain a statement of the effect of section 426A.
  1. The evidence before the Court which is of particular relevance to the question of whether the Tribunal should have made a decision without a hearing is the bundle of Relevant Documents and the affidavit of Elizabeth Warner-Knight affirmed 14 January 2011. The first applicant’s statement which was filed in Court, and whose correctness was affirmed by the first applicant in her oral evidence, has no particular relevance to the question currently under consideration as it is addressed to the facts which have been conceded by the Minister, namely that at all relevant times the applicants resided at the address to which the invitation was sent and, secondly, that they did not receive the hearing invitation.
  2. RD 109 shows that the s.425A letter addressed to the first applicant at the address given by her in her application to the Tribunal was dated 22 July 2010. A copy of a registered post sticker displaying the number 564722609014 appears on the copy of that letter. Annexed to
    Ms Warner-Knight’s affidavit is a copy of the Tribunal’s record of a number of registered post postings on 23 July 2010. Relevantly it records that a letter addressed to the first applicant with what appears to be the registered post reference number of 564722609014 was posted on that day. RD 109 and the affidavit of Ms Warner-Knight satisfy me that the s.425A letter was sent to the applicants on 23 July 2010.
  3. In relation to the despatch of the s.425A letter, s.441A(4) of the Act provides:

(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:

(a) within 3 working days (in the place of dispatch) of the date of the document; and

(b) by prepaid post or by other prepaid means; and
(c) to:

(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or

(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar or other officer.

By dispatching a s.425A letter on 23 July 2010 to the address given by the applicants in their application to the Tribunal, the Tribunal satisfied the requirements of s.441A(4).

  1. Section 441C(4) provides:

(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.

Because the Tribunal complied with s.441A(4), the effect of s.441C(4) is that the notice is taken to have been received by the applicants seven working days after the date which it bears, namely 2 August 2010.

  1. The provisions just quoted provide a complete answer to the applicants’ submissions based on the fact that they did not receive the invitation to the Tribunal’s hearing. As observed by Stone and Jagot JJ in SZOBI v Minister for Immigration & Citizenship (No. 2) [2010] FCAFC 151 at [18], provisions such as s.441A have nothing to do with receipt and are solely concerned with dispatch, and that the consequence of such dispatch is, by virtue of provisions such as s.441C, deemed receipt by the intended recipient. This means that the failure by the applicants to actually receive the invitation is not relevant to current considerations. They are deemed by the Act to have received the invitation, whether or not they in fact did, and thus the only remaining question to address at this point is whether the date of the deemed receipt complies with requirements of the Act and the Regulations.
  2. In this regard, when an applicant is invited to a Tribunal hearing, reg.4.35D of the Migration Regulations 1994 deals with how much notice of that forthcoming hearing the applicant is to receive.
    It provides:

The s.425A letter invited the applicants to a hearing on 23 September 2010. The applicants were not in detention and so they had to receive notice of the Tribunal hearing no later than 8 September 2010. As already noted the letter is deemed to have been received by them on 2 August 2010. Consequently, the requirements of reg.4.35D have been met.

  1. Section 426A(1) of the Act provides:

In the circumstances, the Tribunal discharged its obligation to invite the applicants to the hearing and its decision to proceed to make a decision on the review without taking any further action to allow or enable them to appear before it was not affected by error.

Grounds raised in application

  1. Turning to the decision which the Tribunal reached on the review application, it should be observed that this was based on the Tribunal’s failure to be satisfied, on the limited information available to it, that the first applicant had a well-founded fear of persecution for a Convention reason. Although an applicant in review proceedings before the Tribunal does not bear a formal onus of proof in the sense understood in the litigation context, nevertheless he or she must place material before the Tribunal such that it can be satisfied that the criteria for the grant of the visa sought have been met. In this case, the applicants failed to achieve this, principally because they failed to attend the Tribunal’s hearing. As the Tribunal said, the applicants’ claim lacked essential details and was not clarified or elaborated upon because the applicants failed to attend the hearing. In such circumstances, and given that the Tribunal had said in its s.425A notice that it could not find in their favour on the information it then had, the affirmation of the delegate’s decision could be predicted if they did not attend the hearing. For these reasons, the matters raised by the applicants in their application to this Court do not really address the basis of the Tribunal’s decision.
  2. In any event, the allegation that the Tribunal did not make the right decision, and the allegation that “I am a true Falun Gong practitioner”, do not point to jurisdictional error on the Tribunal’s part. Rather, they invite the Court to substitute the Tribunal’s decision on the merits of the visa application with a different decision. As mentioned towards the beginning of these reasons, the Court is not empowered to do that.

Conclusion

  1. Jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently the application will be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM


Associate:


Date: 23 February 2011

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