SZCJP v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of the Federal Magistrates Court delivered on 2 February 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 16 December 2003. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of the People's Republic of China, and claims she has been subject to persecution on the basis of her Christianity. The appellant says that when she was brought up as a Christian by her parents, and that when she was a child, her parents were persecuted by the Chinese Authorities because of their Christianity. She says that during the Cultural Revolution, her parents were briefly imprisoned by the Red Guards and all books on Christianity were confiscated from her house. She says that her home subsequently was frequently visited by the Red Guards, but that despite this, she continued to attend church secretly with her parents. 3 The appellant claims to have married a man who also subsequently began to study Christianity, with whom she had a daughter. The appellant claims that first her husband and then she lost their jobs, and they set up a grocery store below their home. She says that the store prospered but government officials began demanding bribes and repeatedly fined the appellant and her husband, and that they closed the store when they found out that she and her husband were Christians. She also claimed that she was taken to a police station and detained for two weeks. Whilst in detention, she says the police tried to force her to confess that her church was opposed to the Communist Party. The appellant says she refused to confess. She says that whilst she was in detention, the authorities threatened her family and extorted money from her husband. After her release, the appellant obtained a passport and travelled to Australia. 4 On 30 December 2002 the appellant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 28 February 2003, a delegate of the Minister refused the appellant's application. 5 On 26 March 2003 the appellant applied to the Refugee Review Tribunal ('the Tribunal') for a review of the decision of the Minister's delegate. On the application form the appellant provided a home address of 8 Marina Crescent, Gymea Bay NSW, and a mailing address of PO Box K1094 Haymarket NSW. She did not complete that part of the form which allowed for specification of an agent. 6 On 27 March 2003 the Tribunal sent a letter to the appellant's mailing address acknowledging her application. On 8 August 2003, the Tribunal received a letter from Southern Hemisphere Consulting Pty Limited, which stated: 'Dear Sir/Madam, I refer to the above review application. My company is the authorized recipient of the above application. However, on behalf of my company, and myself I would like to advice [sic] you that we are no longer acting as her recipient. I am enclosing a Change of Address Details form for your reference. Should you have any further quires [sic], please contact the applicant directly.' 7 The postal address of the Southern Hemisphere Consulting Pty Ltd is identical to the mailing address provided in the appellant's application form for review by the Tribunal. The 'Change of Address Details' form records her new mailing address as the home address provided in the application form. 8 On 13 October 2003 the Tribunal wrote to the appellant at her home address (which was then also her mailing address), informing her that the Tribunal was unable to come to a favourable decision on the material before it, and inviting her to attend a hearing on 18 November 2003. A Response to Hearing Invitation form was enclosed. 9 The Tribunal received no response to its invitation, although the letter to the appellant was not returned unclaimed. The appellant did not appear before the Tribunal on the specified hearing date, and pursuant to s 426A of the Migration Act 1958 (Cth) ('the Migration Act'), on 20 December 2003 the Tribunal proceeded to make its decision without taking further steps to enable the appellant to appear before it. 10 In its reasons for decision, the Tribunal stated: 'On the important aspects of her claims, namely the events following the establishment of the family grocery store the claims of the Applicant are very sketchy. While the Applicant claims that she and her husband have been persecuted by a corrupt Chinese official who used information that the Applicant is a Christian to punish her by closing the family business, she has produced no evidence whatsoever which might satisfy me that her claims of being a Christian are genuine. It is noted that while claiming in her statement that she is a Christian the Applicant did not claim any particular religion in her response to item 12 of her primary application (see folio 18 of the DIMIA file). Further, even if the Applicant is a Christian there is no evidence that establishes that the Applicant does not belong to one of the two registered Christian churches in China (Catholicism or Protestantism). No evidence is provided as to how it was that the corrupt official became aware that the Applicant and her husband are Christians. I consider it significant that the Applicant makes no claim and provides no evidence that she has been a practising Christian in Australia. Further, no evidence has been provided which might support the claim of the Applicant that the family business has been closed down by the authorities or the reason for that closure. Even if extortionate demands were made by a corrupt official, in the absence of the opportunity to discuss the claim with the Applicant I consider implausible her claim that the same demands would be imposed on a small shopkeeper operating from below her home as a larger establishment operating in a major centre. … Because I cannot be satisfied that any of the Applicant's claims are true I consider that I am unable to make findings of fact favourable to the Applicant in relation to the claims she has made.' 11 By letter dated 24 November 2003 the Tribunal wrote to the appellant, informing her that its decision would be handed down on 16 December 2003. 12 On 2 December 2003 the appellant signed an 'Authorisation of person to act and receive communication' form, indicating that she had appointed a new agent. The form was sent to the Tribunal and was received by the Tribunal on 16 December 2003. The form authorised Christina Zeng of 107/413-415 Sussex St Sydney to receive communications on the appellant's behalf. 13 On 16 December 2003 the Tribunal wrote to the appellant at her residential address informing her of its decision that she was not entitled to a visa. It is not possible to say whether this letter was posted before or after receipt of the form which notified the Tribunal of the name and details of the appellant's new agent. 14 The appellant filed an application for review of the Tribunal's decision in the Federal Magistrates Court on 5 January 2004, and filed an amended application on 17 May 2004. In the amended application the appellant claims that the Tribunal's findings in relation to a number of jurisdictional facts were not reasonable; that the Tribunal ignored relevant considerations in making the decision; that there was a constructive failure by the Tribunal to exercise jurisdiction; and that the Tribunal denied the appellant natural justice. Particulars are given in respect of each ground of appeal. 15 On 2 February 2006, Raphael FM heard the appellant's application and delivered ex tempore judgment. In his Reasons for Judgment, his Honour stated (at [5]): 'I agree with Mr Smith that the lack of satisfaction as to the facts asserted in support of the visa application on the basis of a lack of detail of the evidence is a sufficient and reasonable basis for a decision affirming the decision on review. This is what has happened. The Tribunal has not made any findings of fact. It was merely not sufficiently addressed by the [appellant's] written statement … That really is the beginning and the end of the matter, but the [appellant] has filed an amended application in which she states that the Tribunal's finding on a number of jurisdictional facts was not reasonable. The views I have expressed above indicate that I believe this claim to be misconceived as it is not the Tribunal's findings that caused it to decline to grant a visa, it was the Tribunal's lack of satisfaction based upon inadequate evidence.' 16 Raphael FM also found (at [6]) that the Tribunal had considered all of the claims of the appellant, and had not ignored any relevant material or considerations. Referring to the details which the appellant claimed had been ignored, his Honour stated: 'They are all set out in the green book as are the reasons why the Tribunal has assessed that the statements do not meet the required standard.' 17 His Honour therefore dismissed the appeal in respect of this ground. Since the claim that the Tribunal had failed to exercise its jurisdiction was based upon the same particulars, his Honour also concluded that there had been no constructive failure to exercise jurisdiction: see [6]. 18 In relation to the ground of procedural fairness, Raphael FM noted that this was divided into two separate claims: first, that the Tribunal made its decision without allowing the appellant an opportunity to be heard; and second, that the Tribunal appeared to be biased. In relation to the first part of this claim, Raphael FM said (at [7] and [8]): 'The [appellant] was given an opportunity to be heard pursuant to the provisions of s 425 of the Act. She did not avail herself of them and that permitted the Tribunal to proceed in accordance with s 426A. Before me today the [appellant] said that she was working as a nanny, she was residing at the home of the children she was looking after. That was why she did not receive the invitation to the hearing nor attend. I do not know whether this is so or not but I am somewhat surprised that it is raised now and has never been raised before … In any event the formalities appear to have been complied with and the fact that she did not receive the invitation would not be grounds for setting aside the Tribunal's decision.' 19 The allegation of apprehended bias was made in respect of a comment by the Tribunal that the appellant had not listed any particular religion in her original application form for a protection visa. Raphael FM considered that a fair minded observer would not infer from that comment that the Tribunal had so prejudged the matter that it was unable or unwilling to change its mind. Accordingly, Raphael FM dismissed the appeal in its entirety. 20 The appellant filed a notice of appeal to this Court on 20 February 2006. The grounds for the appeal are that 'the Tribunal has not considered relevant information provided by the applicant in making the decision' and that 'the Tribunal has not adequately taken into consideration that her relatives and family had been persecuted in the past by reason of their religious activities'. 21 The appellant did not provide written submissions to the Court. At the hearing today, she said that she was not convinced by the judgment of the Tribunal and that she felt that the material she prepared for the refugee application was genuine. She also said that she did not want to return to China because she had a real fear that she would be subject to persecution. She said that she did not attend the Tribunal hearing because she was ill, although she also said that she did not receive the notification of the Tribunal hearing date until after the date had passed. 22 The Minister, in relation to the issues raised at the hearing, submitted that the appellant had not made any claim of illness at the hearing before the Federal Magistrates Court, and referred to Raphael FM's reasons at [8]. Raphael FM there referred to her claim that she did not receive the invitation to the hearing because she was working as a nanny and was residing 'at the home of the children she was looking after'.