SZHZT v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from the orders made by the Federal Magistrates Court on 3 July 2007. Those orders dismissed an application by the appellant for judicial review of a decision by the Refugee Review Tribunal (the "Tribunal") which had affirmed a decision of a delegate of the Minister not to grant a protection visa. 2 The appellant is a national of the People's Republic of China who arrived in Australia on 16 June 2006, and who applied for a protection visa shortly after arrival. The basis of the appellant's claim was that he was a Falun Gong practitioner and feared persecution upon return to China, having suffered ill treatment and persecution prior to coming to Australia. The Minister's delegate refused the application. 3 An application for review of that decision was made to the Tribunal. On 18 September 2006, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the then applicant to a hearing to give oral evidence and present arguments. The appellant consulted a migration agent at the time, according to what he said to me today on appeal. He said he was told that he could choose to go to the Tribunal or not go, and that he could submit material to the Tribunal. What this advice failed to make clear to the appellant was that if the Tribunal was left unsatisfied of the appellant's claims, the Tribunal was bound by the Migration Act 1958 (Cth) to refuse the application and affirm the decision. The Tribunal was clearly stating in the letter that it was not able to be satisfied that the visa should be granted without an oral hearing. In those circumstances, the lack of wisdom of attending the Tribunal hearing should have been clear. 4 The appellant, having spoken to his migration agent, chose not to go to the Tribunal hearing, but provided the Tribunal with further evidence. That evidence was described by the Tribunal as follows: Accompanying the applicant's advice was a document and an unsworn and unattributed translation, indicating that it was a patient record issued by Tongzhou No 5 People's Hospital pertaining to the applicant. It stated that he was admitted on 12 February 2006 suffering from a scalded left shoulder. Some photographs were enclosed, depicting the applicant's injuries, which appear to comprise a few blisters on one shoulder. It is unclear who took the photographs, or why so many were taken of what appears to be some minor injuries. He was reportedly "mentally clear and normal in appearance". The applicant provided no explanation as to the significance of the report and photographs. 5 What may not have been clear to the appellant at the time, but nevertheless is the statutory framework with which I must work, is that the Tribunal was the place and forum at which the appellant was to make good his factual claims. The Tribunal's task, set out in the Migration Act, is to review all aspects of the claims of the appellant and come to a view, in the light of the Refugee Convention, and in the light of all the material put forward by the applicant before it, whether Australia owes protection obligations to the person concerned. By not going to the hearing and assisting the Tribunal in understanding the full nature and detail of his case, the appellant risked leaving the Tribunal in a state of lack of satisfaction about aspects of his claims. That is in fact what happened. 6 The findings and reasons of the Tribunal are set out in the last two pages of its six pages of reasons. I will not recite them word for word, but, essentially, the Tribunal said that there was information that it needed from the appellant. It felt that the appellant's claims were lacking in detail in significant respects and, in the circumstances of his non-appearance at the hearing, was unable to be satisfied of the relevant criteria, in particular, that Australia owed protection obligations under the Refugee Convention. 7 The review by the court system of the approach of the Tribunal is not to re-hear all factual matters. The review by the court system is to ensure that the Tribunal, which was charged with the responsibility of factually investigating the appellant's claims, acted according to law. Thus, the Federal Magistrate's task was not to re-examine the claim for protection, but to examine the approach of the Tribunal to ensure that it approached the matter lawfully. In that context, the Federal Magistrate dealt with the application, and the grounds of the application, as brought by the appellant. 8 The three grounds of the application before the Federal Magistrate were as follows: 1. I was denied procedural fairness in connection with the making of the decision.