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[2008] FCA 641
Federal Court of Australia
2008-05-13
McKerracher J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of a Federal Magistrate (Raphael FM) delivered on 30 November 2007 (SZJMF v Minister for Immigration & Citizenship & Anor [2007] FMCA 2029)dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down 19 September 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.
BACKGROUND 2 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 28 March 2006. On 24 April 2006 the appellant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs (as it was then known). A delegate of the first respondent refused the application for a protection visa on 22 May 2006. On 26 June 2006 the appellant applied to the Tribunal for a review of that decision. 3 The appellant claimed to fear persecution in China due to his activities in support of worker's rights. According to the appellant, he and other drivers formed a union of members at their engineering company to protest diminished working conditions. After the company made lay-offs, the union protested before the Fuqing City Council in July 2005 and received, what appeared to be, a fair hearing. The appellant recounted that he and other organisers were arrested in October 2005 while writing letters to protest the Council's inaction. He claimed that he was firstly detained by the National Security Bureau and mistreated before being placed in a detention camp for two years. The appellant stated that he was allowed a four-month 'medical release' after the payment of 150,000 Yuan, and that he then contrived to escape overseas.
THE TRIBUNAL DECISION 4 The appellant failed to attend the Tribunal hearing. In the circumstances, the Tribunal felt that it had insufficient details of his claims. The appellant claimed to have commenced driving trucks at the age of 16 whereas country information showed that truck licences are not issued to those aged less than 18 years in China. The Tribunal also found the appellant gave limited or negligible evidence in relation to his substantive claims. 5 In these circumstances, the Tribunal could not be satisfied that the appellant had been involved in any union-related activity, had been harmed in the past by the Chinese authorities, or held a well-founded fear of future Convention-related persecution in China (Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967).
FEDERAL MAGISTRATE'S DECISION 6 Before the Federal Magistrate the appellant filed both an application and a subsequent amended application. 7 The initial application (filed on 6 October 2006) raised three grounds, alleging that the decision was an improper exercise of the power conferred on the Tribunal, that the Tribunal failed to follow relevant procedures and that the Tribunal failed to carry out its function in a bona fide manner. His Honour found that the appellant was unable to explain the first two contentions and that neither of these grounds disclosed jurisdictional error. In relation to the issue of bona fides, his Honour responded to the appellant's contention that the length (1.5 pages) of the 'Findings and Reasons' section of the decision record disclosed lack of bona fides by stating that: It would be a sad day if brevity in decisions founded jurisdictional error. No particulars are provided of the lack of bona fides alleged against this Tribunal and none are immediately apparent. 8 The amended application (filed on 8 March 2007) raised a further three grounds. The first stated that: I did not receive any letter from legal adviser. There are more evidens [sic] to be provided after receiving legal advises [sic]. 9 His Honour noted that the appellant had been granted access to legal advice pursuant to the Minister's scheme and that it was possible that the allocated barrister did not communicate with or was unable to communicate with the appellant. While the failure of the system might be perceived as 'distressing', his Honour held that the absence of legal representation did not found a jurisdictional error on the part of the Tribunal. 10 The second ground asserted that the Tribunal had committed an error of law. His Honour noted that this matter had been dealt with already in addressing the initial application. 11 The third ground claimed that the Tribunal 'ignored the truth' that the appellant would face danger in China. His Honour found that the Tribunal had considered this matter but was unable to be satisfied that it would occur. 12 His Honour accordingly dismissed the matter as it did not disclose jurisdictional error on the part of the Tribunal.
GROUNDS OF APPEAL 13 The notice of appeal raises only two grounds: 1. The RRT does not take into account the fact that I was sick on the day of the hearing. Hence, I should have gotten another hearing date. 2. The RRT had no evidence to support its claims. 14 Although the grounds are directed against the Tribunal rather than the Federal Magistrates Court, for the purposes of this appeal, the grounds will be considered as alleging a failure on the part of the Federal Magistrates Court to identify those failures of the Tribunal. 15 At the hearing of the appeal before me today, in relation to Ground 1, the appellant reiterated that he was not at the hearing before the Tribunal on the intended day as he had hurt his back in Canberra. He was in pain and he could not walk and he wanted to have another chance at the hearing before the Tribunal. 16 In relation to Ground 2, the appellant in his oral submissions confined the considerations in relation to evidence to his back injury as distinct from the broader evidence on which the Tribunal dealt. I will treat his oral submissions on the topic of evidence in relation to his back injury as supplementing any other submissions that might be available to him in relation to the evidence on which the Tribunal relied. The appellant referred to x-rays and CT scans that he had at his home which proved his back injury. He indicated that he had not produced or offered to produce any medical records to the Tribunal or to the Federal Magistrates Court at any time but made the point that he did not think that he had been asked for those records. 17 Counsel for the first respondent, Mr Snell, pointed to the fact that the appellant had not identified any error of the Federal Magistrate and had never notified the Tribunal or the Federal Magistrates Court until first appearing before the Federal Magistrates Court of the problems caused by the back injury. 18 Although the absence of legal advice had not been raised as a ground of appeal in this Court (as it had in the Federal Magistrates Court), Mr Snell pointed to the decision of SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702. In that decision, Gyles J said: 2 This is an application seeking leave to appeal against orders and judgment of Federal Magistrate Driver dated 19 January 2006 (SZHTI & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 41) dismissing an application for judicial review on the grounds that it failed to disclose an arguable case for the relief claimed pursuant to r 44.12 of the Federal Magistrates Court Rules. The affidavit in support of the application for leave to appeal has two paragraphs. The draft notice of appeal attached to the affidavit repeats the substance of those two grounds. 3 The first paragraph of the affidavit in support of the application is: I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court. 4 That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.
Ground 1 19 The appellant claims that he should have been given another hearing because he was sick on the day his hearing was scheduled. 20 Section s 426A of the Migration Act 1958 (Cth) (the Act) provides: (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time or place at which, the applicant is scheduled to appear; The Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled. 21 There is no evidence that the appellant contacted the Tribunal and tried to reschedule his hearing nor is there any affidavit or other evidence of the appellant's sickness on the day of the hearing. The first occasion that the back problem was raised was before the Federal Magistrates Court. The Tribunal followed the proper course. In my view, this ground must fail.
NEW SOUTH WALES DISTRICT REGISTRY NSD 2485 of 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
JUDGE: MCKERRACHER J DATE OF ORDER: 13 MAY 2008
NEW SOUTH WALES DISTRICT REGISTRY NSD 2485 of 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of a Federal Magistrate (Raphael FM) delivered on 30 November 2007 (SZJMF v Minister for Immigration & Citizenship & Anor [2007] FMCA 2029)dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down 19 September 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.
BACKGROUND 2 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 28 March 2006. On 24 April 2006 the appellant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs (as it was then known). A delegate of the first respondent refused the application for a protection visa on 22 May 2006. On 26 June 2006 the appellant applied to the Tribunal for a review of that decision. 3 The appellant claimed to fear persecution in China due to his activities in support of worker's rights. According to the appellant, he and other drivers formed a union of members at their engineering company to protest diminished working conditions. After the company made lay-offs, the union protested before the Fuqing City Council in July 2005 and received, what appeared to be, a fair hearing. The appellant recounted that he and other organisers were arrested in October 2005 while writing letters to protest the Council's inaction. He claimed that he was firstly detained by the National Security Bureau and mistreated before being placed in a detention camp for two years. The appellant stated that he was allowed a four-month 'medical release' after the payment of 150,000 Yuan, and that he then contrived to escape overseas.
THE TRIBUNAL DECISION 4 The appellant failed to attend the Tribunal hearing. In the circumstances, the Tribunal felt that it had insufficient details of his claims. The appellant claimed to have commenced driving trucks at the age of 16 whereas country information showed that truck licences are not issued to those aged less than 18 years in China. The Tribunal also found the appellant gave limited or negligible evidence in relation to his substantive claims. 5 In these circumstances, the Tribunal could not be satisfied that the appellant had been involved in any union-related activity, had been harmed in the past by the Chinese authorities, or held a well-founded fear of future Convention-related persecution in China (Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967).
FEDERAL MAGISTRATE'S DECISION 6 Before the Federal Magistrate the appellant filed both an application and a subsequent amended application. 7 The initial application (filed on 6 October 2006) raised three grounds, alleging that the decision was an improper exercise of the power conferred on the Tribunal, that the Tribunal failed to follow relevant procedures and that the Tribunal failed to carry out its function in a bona fide manner. His Honour found that the appellant was unable to explain the first two contentions and that neither of these grounds disclosed jurisdictional error. In relation to the issue of bona fides, his Honour responded to the appellant's contention that the length (1.5 pages) of the 'Findings and Reasons' section of the decision record disclosed lack of bona fides by stating that: It would be a sad day if brevity in decisions founded jurisdictional error. No particulars are provided of the lack of bona fides alleged against this Tribunal and none are immediately apparent. 8 The amended application (filed on 8 March 2007) raised a further three grounds. The first stated that: I did not receive any letter from legal adviser. There are more evidens [sic] to be provided after receiving legal advises [sic]. 9 His Honour noted that the appellant had been granted access to legal advice pursuant to the Minister's scheme and that it was possible that the allocated barrister did not communicate with or was unable to communicate with the appellant. While the failure of the system might be perceived as 'distressing', his Honour held that the absence of legal representation did not found a jurisdictional error on the part of the Tribunal. 10 The second ground asserted that the Tribunal had committed an error of law. His Honour noted that this matter had been dealt with already in addressing the initial application. 11 The third ground claimed that the Tribunal 'ignored the truth' that the appellant would face danger in China. His Honour found that the Tribunal had considered this matter but was unable to be satisfied that it would occur. 12 His Honour accordingly dismissed the matter as it did not disclose jurisdictional error on the part of the Tribunal.
GROUNDS OF APPEAL 13 The notice of appeal raises only two grounds: 1. The RRT does not take into account the fact that I was sick on the day of the hearing. Hence, I should have gotten another hearing date. 2. The RRT had no evidence to support its claims. 14 Although the grounds are directed against the Tribunal rather than the Federal Magistrates Court, for the purposes of this appeal, the grounds will be considered as alleging a failure on the part of the Federal Magistrates Court to identify those failures of the Tribunal. 15 At the hearing of the appeal before me today, in relation to Ground 1, the appellant reiterated that he was not at the hearing before the Tribunal on the intended day as he had hurt his back in Canberra. He was in pain and he could not walk and he wanted to have another chance at the hearing before the Tribunal. 16 In relation to Ground 2, the appellant in his oral submissions confined the considerations in relation to evidence to his back injury as distinct from the broader evidence on which the Tribunal dealt. I will treat his oral submissions on the topic of evidence in relation to his back injury as supplementing any other submissions that might be available to him in relation to the evidence on which the Tribunal relied. The appellant referred to x-rays and CT scans that he had at his home which proved his back injury. He indicated that he had not produced or offered to produce any medical records to the Tribunal or to the Federal Magistrates Court at any time but made the point that he did not think that he had been asked for those records. 17 Counsel for the first respondent, Mr Snell, pointed to the fact that the appellant had not identified any error of the Federal Magistrate and had never notified the Tribunal or the Federal Magistrates Court until first appearing before the Federal Magistrates Court of the problems caused by the back injury. 18 Although the absence of legal advice had not been raised as a ground of appeal in this Court (as it had in the Federal Magistrates Court), Mr Snell pointed to the decision of SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702. In that decision, Gyles J said: 2 This is an application seeking leave to appeal against orders and judgment of Federal Magistrate Driver dated 19 January 2006 (SZHTI & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 41) dismissing an application for judicial review on the grounds that it failed to disclose an arguable case for the relief claimed pursuant to r 44.12 of the Federal Magistrates Court Rules. The affidavit in support of the application for leave to appeal has two paragraphs. The draft notice of appeal attached to the affidavit repeats the substance of those two grounds. 3 The first paragraph of the affidavit in support of the application is: I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court. 4 That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.
Ground 1 19 The appellant claims that he should have been given another hearing because he was sick on the day his hearing was scheduled. 20 Section s 426A of the Migration Act 1958 (Cth) (the Act) provides: (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time or place at which, the applicant is scheduled to appear; The Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled. 21 There is no evidence that the appellant contacted the Tribunal and tried to reschedule his hearing nor is there any affidavit or other evidence of the appellant's sickness on the day of the hearing. The first occasion that the back problem was raised was before the Federal Magistrates Court. The Tribunal followed the proper course. In my view, this ground must fail.
Ground 2
22 The appellant alleges that the Tribunal had no evidence to support its claims. Under s 430 of the Act, the Tribunal is required to prepare a written statement of its decision on review in which it must set out the decision of the Tribunal on review; the reasons for the decision; the findings on any material questions of fact and it must refer to the evidence or any other material on which the findings of fact were based. In the present case, it is clear that the Tribunal reached its findings based on the evidence, albeit limited evidence, provided by the appellant. Further, the Tribunal clearly described independent evidence it relied upon. Thus, at pages [5]-[6] the Tribunal stated:
The applicant has failed to provide details about his claims and the Tribunal is unable to be satisfied on the evidence before it that the applicant has a well founded fear for a convention reason.
For example, the applicant claims to have commenced his employment in 1991 at the age of 16 years, and to have been employed as a driver of trucks. The independent evidence suggests that:
Applicants for driver's license of larger passenger carrier, non-electric bus shall be aged between 21-25 years old. Applicants for driver's license of large cargo carrier shall be of age between 18 to 50 years old) (See: CISNET Document CX15390, 22 May 2006, Tribunal emphasis)
The applicant would have been unable to have been employed as a truck driver as claimed given his age at the time of the commencement of his work, but the applicant has provided no explanation regarding this matter.
23 In Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 Black CJ, Sundberg, Katz and Hely JJ set out the following:
The RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. Consequently, it must make findings on questions of fact that are central to the case raised by the material and evidence before it'' or upon which the decision, one way or the other, turns'', having regard to the process of reasoning the RRT has employed as the basis for its decision: see [48], [56] and [57];
A requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact must be dealt with: see [56]. Accordingly, a failure to comply with s 430 is not made out by reason only of the failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it had made on an issue: see [56] and [64];
Fundamentally, on a fair reading, the reasons of the RRT need to reveal to the parties why the decision went the way it did: see [62].
24 In my view, the Tribunal's decision record satisfies the requirements of s 430(1) as laid down in the majority judgment in Singh 98 FCR 469. The material question of fact was whether the Tribunal was satisfied that the appellant was involved in any union activity in China or anywhere else and whether as a result of this involvement he had a well-founded fear of persecution for a Convention reason. The Tribunal found against the appellant on the basis that the appellant failed to provide evidence on key aspects of his claim. It is a well established principle that the decision-maker does not have a duty to make out an applicant's case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155. In my view, no jurisdictional error has been established and subsequently this ground can not succeed.
CONCLUSION 25 In my opinion, the approach of the Federal Magistrate reveals, with respect, a careful and detailed consideration of all grounds advanced by the appellant. No reviewable error of the Tribunal or the Federal Magistrates Court has been made out. 1. The appeal will be dismissed. 2. The appellant is to pay the costs of the first respondent fixed at $1,900 pursuant O 62 r 4(2)(c) of the Federal Court Rules. I certify that the preceding twenty- five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.
Associate: Dated: 13 May 2008 The Appellant represented himself
Solicitor for the First Respondent: Sparke Helmore
SZJMF
Minister for Immigration and Citizenship