NBKM v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal against the judgment of a Federal Magistrate dated 13 February 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal's decision was made on 7 September 2006 and handed down on 19 September 2006, and affirmed a decision of a delegate of the first respondent to refuse to grant protection visas to the appellants. An earlier decision made by a differently constituted Tribunal handed down on 2 March 2004, had been set aside in May 2006. Background 2 The appellants are a boy and his parents who were born in the People's Republic of China (China). The father alleges that he first arrived in Australia in 1990, and then returned to China in 1993. He came back to Australia on 12 December 1995. The boy and his mother arrived in Australia on 8 May 1997. The family applied, through the boy, for protection visas on 3 March 2003. In his application for a protection visa, prepared by a migration agent, the son claimed to fear persecution in China because he had spent his formative years in the "West". The son stated that he would not have access to state education in China, that he would not be recognised as a "normal" Chinese student and that his own attitudes to the Communist government would endanger him. The father and mother offered no claims of their own and instead relied upon their membership of the son's family unit. On 29 May 2003, the delegate refused to grant the visas. The Tribunal 3 The appellants sought a review of the delegate's decision by an application to the Tribunal dated 8 July 2003. This application, completed by the appellants' new migration agent, stated that each of the appellants had his or her own claim, and that separate statements in support of the claims would be submitted. The statements were received by the Tribunal on 8 January 2004 - the day before the date of the hearing. 4 The appellants claimed that each of them had individual claims for refugee status. The appellants claimed that due to the fault of their previous migration agent they mistakenly did not put in claims on their own behalf. 5 The father claimed that on his return to China from Australia in 1993 he was regarded as a dissident and was interviewed by the Public Security Bureau (the PSB) about subversive communications he had engaged in with a particular foreign journalist. He claimed to have departed China in December 1995 because he had to escape scrutiny from the PSB. It was further claimed that the wife and son faced persecution in China on account of the husband's political profile. It was said that the mother was required to attend a labour camp and the son was denied access to school. The father claimed that his wife and their son obtained their passports eventually, by paying bribes, and came to Australia. 6 A hearing of the Tribunal was held in January 2004. The hearing was transcribed. Only the adult appellants attended the hearing. Their migration agent, Ms Grace X Chen, was present at the hearing. Each of the father and the mother gave evidence. On 2 March 2004, the Tribunal handed down its decision. In its reasons for decision, the Tribunal recorded the evidence which had been given by the husband and the wife. The Tribunal affirmed the delegate's decision. 7 The appellants applied for judicial review of the Tribunal's decision. 8 Pursuant to a consent order dated 29 May 2006, a Federal Magistrate quashed the decision of the Tribunal and remitted the matter to the Tribunal to be considered in accordance with law. 9 On 6 July 2006, the Tribunal wrote to the appellants. The letter stated: The Federal Magistrates Court of Australia has remitted your case to the Tribunal for reconsideration. You are invited to provide any documents or written arguments you wish the Tribunal to consider which you have not already provided to the Tribunal. Any documents should be provided as soon as possible. Any documents not in English should be translated by a qualified translator. You should send both the documents and the translations. In the meantime, your case will be allocated to a Member of the Tribunal who has not previously made a decision in relation to your case. The Member may do one or more of the following: · seek further information · seek your comments on particular information · invite you to a hearing before making a decision on your case. 10 On 27 July 2006, the Tribunal wrote to the appellants pursuant to s 424A of the Migration Act 1958 (Cth) (the Act), seeking a response to nine nominated items of information. The letter outlined various inconsistencies between the original protection visa application, submissions made by the father in 2004 and 2005, and the evidence previously given to the Tribunal, and sought the appellants' comment. The letter included the following paragraph: Please note that the Member who is now considering your case will listen to the tape recording of the Tribunal hearing on 9 January 2004. He may decide, having done so, and having considered your response to this letter and the other evidence currently before the Tribunal, that he is able to make a decision, which may be either favourable or unfavourable. It is therefore in your interest to submit with your response to this letter, all further evidence or submissions you wish the Tribunal to consider. 11 On 28 August 2006, Mr Wayne YT Han, a migration agent, acting on behalf of the appellants, submitted a five page facsimile to the Tribunal, which responded to each of the nine items of information in the Tribunal's letter. 12 The Tribunal did not invite the appellants to a further hearing. In its reasons for decision dated 7 September 2006, the Tribunal explained that, having listened to the tape of the hearing, it was satisfied that the summary recorded in the first review decision was a fair summary of the evidence given by the parents. The Tribunal affirmed the decision of the delegate to refuse to grant the appellants protection visas. The Tribunal did not accept that the son would face "serious harm" by reason of having been educated abroad. Further, the Tribunal did not accept that the father was in fact a dissident and, therefore, rejected the mother's and son's claims that they would each suffer harm by reason of their association with the father. The decision of the Federal Magistrate 13 The appellants applied for judicial review of the decision of the Tribunal in an amended application on 8 December 2006. The essence of the appellants' complaint was that the reconstituted Tribunal had made the decision on 7 September 2006, without inviting the appellants to a hearing at which the appellants could give oral evidence. This omission, said the appellants, meant that the Tribunal failed to comply with its obligations under s 425 of the Act and under s 422B of the Act - which they referred to as the "natural justice hearing rule". 14 The Federal Magistrate appointed the father as litigation guardian of the son for the purpose of the proceedings. The Federal Magistrate asked the father to expand on the alleged denial of natural justice under s 422B. The father relied on the failure by the Tribunal to invite the appellants to attend a hearing to give oral evidence.