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[2005] FCA 999
Federal Court of Australia
2005-05-27
Conti J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from the orders and reasons for judgment of a Federal Magistrate made and given on 28 February 2005, which dismissed the appellants' application for review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 2 July 1999, and which affirmed an earlier decision of a delegate of the respondent Minister dated 31 October 1998 refusing the appellants protection (Class XA) visas. 2 The appellants, who are husband and wife, are citizens of the People's Republic of China. They arrived in Australia on 6 January 1997 but did not lodge applications for protection visas until 30 September 1998. Of the two, the wife was the only applicant who specifically claimed to have a well-founded fear of persecution on her return to China, since her husband made his application as a member of her family unit. 3 The appellant wife's claims are contained in the written statement annexed to her application for a protection visa, which were extracted in whole by the Tribunal in its reasons for decision. It would appear that the appellant wife claimed to have a well-founded fear of persecution on the basis of her political beliefs. The appellant wife claimed that following the Communist revolution her grandparents and parents were subject to persecution at the hands of the new government; this in turn led to the appellant being deprived of 'education rights'. In spite of that, the appellant claimed that she was able to obtain a job teaching in a primary school however after an undisclosed period of time she again earned the ire of the Communist government due to her progressive teachings. In particular, the appellant alleged that she orchestrated a letter-writing campaign in support of those students involved in the 1989 pro-democracy protests. This led to her detention at the hands of the Public Security Bureau ('PSB') and an extended period of unemployment. After that, the appellant was able to start up her own clothing factory which was financially a success until local Communist authorities confiscated it and ceased production. This was said to be because the appellant refused to employ certain 'bad personalities', who were associated with the local government officials. After failing to obtain relief for her treatment from the courts, the appellant alleged that she again organised a protest, which led to a second period of detention by the PSB and physical and mental mistreatment. It was only after her family paid a bribe that the appellant was allegedly released. The appellant claimed that she had difficulty getting a passport but that once that was achieved she left the country. As I have said, the appellant husband did not make specific claims of his own and thus the success, or otherwise, of his appeal depends on that of his wife's. 4 On 6 April 1999, the Tribunal wrote to the wife informing her that the Tribunal had considered the material before it in relation to the application but that without more could not make a decision in the appellants' favour. That letter also invited the appellant to a hearing 'to give oral evidence and present arguments in support of your claims'. The wife was informed that she was 'entitled to ask the Tribunal to obtain oral evidence from another person'. That letter warned the appellant that if she did not respond to that letter of invitation, the Tribunal would assume that she did not want her case to come to hearing and that the Tribunal would then make a decision on her case without further notice. In a response received by the Tribunal on 23 April 1999, the wife indicated that she would like to come to a hearing, and furthermore that in spite of the fact that her application includes other family members, they would not like separate hearings. The Tribunal sent a letter dated 7 May 1999 to the wife informing her of the scheduled hearing on 16 June 1999 which also warned the appellant that if she did not attend the hearing and a postponement had not been granted, the Tribunal would assume that she no longer wanted to come to the hearing and it could make a decision on her case without further notice. 5 Neither the wife, who was the primary applicant and the only one with specific claims of a well-founded fear of persecution, or her husband, attended the Tribunal hearing. The appellants made no attempt to explain to the Tribunal a reason for their absence. 6 The Tribunal had before it only the material contained in the wife's written statement which I have essayed above. Without oral evidence, or further details about the specific years when certain alleged events occurred, the Tribunal member found it impossible to be satisfied of the validity and severity of the claimed abuses. Some aspects of the wife's claims 'lead the Tribunal to question whether they [were] claims which [were] grounded in the Convention', and without any opportunity to explore that with the wife in person, the Tribunal was unable to be satisfied in her favour. The Tribunal was also concerned to find out why the wife appeared to have two passports in circumstances where she had complained of the difficulty of obtaining even one. It also wished to enquire into the cause of the appellants' significant delay in seeking protection once they had arrived in Australia. In those circumstances, the Tribunal was not satisfied that the wife had a well-founded fear of persecution and consequently, her husband's application, relying as it did, on the strength of his wife's claims, also fell to be rejected. 7 The Federal Magistrate detailed a substantial delay of some two years until the appellants' joined the Lie class action (proceedings number S89 of 1999) on 31 August 2001. There was a further delay of some six months between the refusal, by Emmett J of this Court, of the appellants' application for an order nisi which had been remitted from the High Court, and their making of an application in the Federal Magistrates Court for review of the 2 July 1999 Tribunal decision. No explanation for this delay was provided to the Federal Magistrate during the course of the hearing of that application for review from which the appellants now appeal. 8 In their application before the Federal Magistrate, the appellants claimed that they were 'aggrieved' by the Tribunal's decision because: '1. The Minister is responsible for the administration of the Migration Act 1958 2. The decision requires her to take steps which are unlawful. 3. The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision. Particulars The Tribunal misconstrued or misapplied the law concerning its determination.'
9 In his ex tempore reasons for judgment, the Federal Magistrate first rejected an application for adjournment of the hearing brought by the husband appellant. The husband contended that since his wife, who was of course the primary applicant, was ill and could not attend the hearing, it should be adjourned. Before I explain the reasons for my agreement with the way in which his Honour disposed of that application, I will first essay the purported grounds of appeal and a supporting affidavit that were filed by the appellants in the present appeal. 10 The appellants' notice of appeal is as follows (read literally): '1. The matter was verbally dismissed despite the fact that the Penal [sic] lawyer failed to contact us at any time prior to the scheduled hearing, and that [the appellant wife] had been seriously ill with three medical certificates submitted to Court and Respondent. 2. I need more time to engage a lawyer and to attend a proper hearing when I am fit and well.'
11 And the affidavit sworn on 6 March 2005 by both appellants reads literally as follows: '1. My lawyer from RRT Legal Advice Scheme (NSW) Mr B Zipser (Selborne Chambers 174 Phillip Street, Sydney) Tel: 02 9231 4560) failed to contact us and to provide legal advice as expected. He already admitted that he was sorry that he had put our papers away. As a result, we were left without proper legal advice, and in fact, any legal advice before the hearing on 28 February 2005. Despite the fact we asked for an adjournment, the hearing still went ahead against our will. This led to my answers at the hearing to be "I don't understand", "I don't know". In another word, the hearing procedure is wrong because we did not get any legal advice at all. 2. Despite at lest 3 medical certificates were submitted, the hearing still did take place in Ms Wang's absence. Given that Ms Wang is the main applicant, she should be given an opportunity to attend a hearing to present her own case. The husband Mr Ye has been looking after the wife and was not actually "present" although "physically" attended the hearing. His heart and soul and thoughts were with sick wife and could not concentrate. 3. The matter should be reinstated and proceed to a proper hearing in due course.' 12 Those documents refer to a second basis that the appellant husband suggested for an adjournment of the hearing before the Federal Magistrate, namely, the alleged failure of the lawyer appointed to the appellants under the Refugee Review Tribunal Legal Advice Scheme to contact the appellants and provide them with legal advice. Both this claim and the claim alleging the appellant wife's illness were dismissed by the Federal Magistrate. 13 In relation to the appellant wife's sickness, the Federal Magistrate addressed the numerous documents sent to the Minister by the appellant's husband which were said to be doctor's certificates and concluded that none of them provided any reason why the appellant wife could not attend court on the allocated day. The so-called certificates lacked detail about the nature of the illness and whether or not it was the doctor or doctors' opinion that the appellant wife would not be capable of giving evidence to the Federal Magistrate. 14 The Federal Magistrate further found that the appellant husband's claim that the lawyer appointed under the scheme had failed to contact the appellants was untrue. His Honour was referred to an email dated 24 February 2005 from Mr Benjamin Zipser, the lawyer concerned, to Ms Catherine Gray, the solicitor acting for the Minister, in which he referred to a phone call that he received from a 'friend' of the appellants that afternoon in which he was asked about his legal advice. The appellants had not contacted Mr Zipser before this point but he nevertheless offered to meet them for the purposes of giving them advice any time up until the morning of their hearing in the Federal Magistrates Court. The appellants did not take up this offer. His Honour found that the appellants had been given advance notice that a lawyer had been appointed to their case but that they had made no attempt to contact him until four days before the hearing. His Honour observed in any event that the appellants had been entitled to seek their own legal advice prior to that point in time as well but that they had chosen not to do so. 15 For those reasons, his Honour chose not to accede to the appellants' request for an adjournment of the hearing. I can see nothing wrong with the way his Honour chose to exercise his discretion in this regard. I observe that the appellants provided no evidence to the Court during the present hearing in support of their claim that the scheme lawyer refused to provide them legal advice and that the appellant wife is still sick. 16 His Honour also considered in detail the merits of the appellants' claims, observing that grounds 1 and 2 of their application for review (which I have extracted above at [8]) did not disclose a jurisdictional error. In relation to the third purported ground (that the decision involved an error of law being the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal), his Honour considered the Tribunal's reasons for decision and held that the Tribunal had abided by the statutory requirements in conducting a review in the appellants' absence. His Honour could not identify any breach of the requirements for procedural fairness - the invitation had been meaningful and not a hollow gesture, the appellant wife gave no reasons for her failure to attend (after the Federal Magistrate gave the appellant husband time to phone his wife to ask her). His Honour considered that the Tribunal member had been correct to require his satisfaction of the claims made by the appellant wife, in accordance with s 65 of the Migration Act 1958 (Cth), and furthermore that the vagueness of those claims and the lack of detail was an appropriate basis for lacking that satisfaction. His Honour also emphasised that the appellants had chosen not to attend the hearing even though they had been specifically warned that the Tribunal was not in a position to make a decision in their favour without more. The Federal Magistrate referred for support to NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 in which the Full Federal Court (French, Emmett and Dowsett JJ) said at [5], in a passage equally applicable to the current circumstances: '… it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.'
17 This case is indistinguishable from NAVX. In both instances the appellants had failed to accept an invitation from the Tribunal to augment their stated claims with more facts and details in circumstances where the Tribunal had made it clear that were they not to do so, their applications would be dismissed. I do not find any error in the Federal Magistrate's decision to reject the appellants' application on the ground that it did not evince a jurisdictional error. 18 In those circumstances, I do not find it necessary to consider his Honour's decision to dismiss the application on discretionary grounds owing to the unwarranted delay of the appellants in prosecuting their appeal. 19 For the reasons that I have outlined above, I order that the appeal be dismissed and that the appellant must pay the Minister's costs, assessed and taxed in the usual way. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.
SZEGZ
Minister for Immigration & Multicultural & Indigenous Affairs