SZTHQ v Minister for Immigration and Border Protection

THE FACTS 6 The appellants are husband and wife. The first appellant provided a detailed written statement to the Department of Immigration and Citizenship ("the Department") from which the following history is derived. He stated that he had a factory in an identified province in China which was very profitable. On 20 December 2011 he was told by the manager of the town industry section that a Taiwanese company was to build a factory in his local area. On 23 December 2011 a town meeting was held and the appellants and other attendees were informed of the purported benefits of the new factory. 7 He then attended a private meeting with town officials where he was told that the Taiwanese company had chosen the site of his factory to build their factory, but that he would be compensated for the acquisition of his factory. He was offered compensation for the acquisition but he did not accept it because he believed the amount of compensation offered was unreasonable. 8 On 25 December 2011 he spoke to the town officials and rejected the compensation offer as unreasonable. He was informed that his response would be reported to the city leaders. He was called to a meeting with city officials on 27 December 2011 and was advised that the town was experiencing financial difficulties and that he should put the town's interests over his own interests and accept the offer. 9 He was offered a written agreement to sign at that time but he says that he asked for time to consider the offer. He did not accept the offer despite feeling pressure to do so. The appellants then decided to submit a letter of protest to the Letter and Petition Office in the provincial city. They instructed a local law firm to write the letter which was to ask the government to stop their assets from being seized by unlawful means. The law firm was to have the letter ready for collection in three days. 10 However, on 29 December 2011 the first appellant was alone in his factory when he was attacked by unknown assailants, his head was covered with a hood and his mouth was taped. Someone then spoke to him advising him that he must accept the compensation offered, that he must not appeal to a higher level of government, and that he must not visit his lawyer again. He was told that he was under watch, and that if he did not heed the warning he would be killed and his family would not be able to find his body. He was then beaten, kicked and punched, suffering five broken ribs as a result. The perpetrators then fled the scene. 11 He was informed by his brother-in-law, who had been informed by a mutual friend, that the local officials had been offered a 20% share of the investment from the Taiwanese factory if he reduced the compensation money to be paid for his factory's demolition. His brother-in-law also informed him that a contract killer had been hired and that he had already given him a warning. He stated that the collusion between the Taiwanese investors and the local government officials made it impossible to seek justice, and claimed that any kind of petition to the government would be futile as the government officers had already been bribed. 12 He decided that he had to go into hiding in order to avoid signing the agreement that would result in the demolition of his factory, and in order to avoid the contract killer. He then decided to flee to Australia, intending to return to China when the situation had changed and when he could pursue the return of his unlawfully seized assets. 13 The appellants left China by legal means, and left behind their son and daughter, born in 1995 and 2003 respectively.

THE DECISION of the delegate 14 On 15 May 2012 the delegate wrote to the first appellant advising him that the Department had begun to process the visa applications. Amongst other things, the letter advised him that when the Department mailed letters to him he was taken to have received the letter within seven working days after its date. 15 On 23 July 2012 the delegate wrote to the first appellant, in a letter sent to a new address provided by him to the Department, inviting the first appellant to attend an interview on 13 August 2012 to discuss his visa application and his claims for protection. The letter advised that if he did not attend the scheduled interview the visa applications may be decided without any further delay, based on the information held at that time. 16 The first appellant did not attend the interview. It does not appear that he offered any explanation for his non-attendance. 17 On 14 August 2012 the delegate refused to grant the protection visas sought, noting that the first appellant did not attend the interview which had been scheduled, and deciding that he was not satisfied that the first appellant met the relevant criteria for the grant of the visas under s 36(2) of the Migration Act 1958 (Cth) ("the Act"). In wide ranging reasons the delegate noted that it was necessary to interview the first appellant in order to assess the credibility of his claims, and stated: There were a number of questions regarding the protection claims which would have been asked at the interview. As the applicant did not attend the interview it is not possible to be satisfied that the claims that have been made in the written application are true claims and that the applicant meets the requirements for a Protection visa. A decision maker is not obliged to accept uncritically any and all statements made by an applicant, as noted in Randhawa v MIEA (1994). 18 The delegate found that: (a) "country information" about China indicated that legal avenues were available to those who wanted to challenge government land seizures or the provision of inadequate compensation; (b) the material before the delegate, including the country information, did not enable a finding that the first appellant had a profile that would result in a real chance of persecution by Chinese authorities should he return to China; (c) the first appellant had legally departed China which indicated that he was not of adverse interest to Chinese authorities; and (d) based on the available information it could not be found that the claimed agents of persecution would have influence with the Chinese authorities to the extent that the claimed unlawful conduct towards the first appellant would be supported by the authorities. While the Chinese legal system "may not be ideal" the country information indicated that it would provide protection to the first appellant. 19 The delegate was not satisfied that the first appellant was a person to whom Australia has protection obligations under s 36 of the Act and clause 866.221 of Schedule 2 to the Migration Regulations 1994 ("the Regulations"), and refused him a protection visa. The delegate also refused to grant a protection visa to the second appellant, doing so on the basis that she was a member of the family unit included in the application.

THE TRIBUNAL DECISION 20 As noted above, on 12 September 2012 the first appellant applied to the Tribunal seeking review of the delegate's decision. 21 On 1 July 2013 the Tribunal wrote to the appellants by letter addressed to the first appellant at a post office box address in Hurstville, NSW, which was the address provided in the application to the Tribunal. The letter advised that the Tribunal had considered all of the material before it relating to the applications for review but that it was unable to make a favourable decision on that information alone. 22 The Tribunal invited the appellants to give oral evidence and present arguments at a hearing scheduled on 29 July 2013. The letter advised that if they failed to attend the hearing the Tribunal may make a decision on their case without taking any further action. 23 The appellants did not appear at the scheduled hearing. On 12 August 2013 the Tribunal's letter dated 1 July 2013 was returned to it marked "uncollected". The envelope had the handwritten notations "Final Notice 24/7" and "RTS 30/7". 24 The Tribunal delivered its decision on 20 August 2013 and affirmed the delegate's decision not to grant the protection visas. The Tribunal decided at [10]-[13]: The applicant claims to fear harm from the a [sic] contract killer and corrupt local business men and authorities of China by reason of his petitioning the authorities in relation to his factory being acquired and his claim that he was under-compensated. He claims that he was attacked and beaten by unknown people because of his resistance to his factory being acquired and his attempt to petition. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an application (Randhawa v MIEA (1994) 52 FCR 437 @ 451). The Tribunal has a number of issues upon which it requires a good deal more detail, for example, why the authorities would continue to pursue the applicant in order to obtain his signature if they were acting corruptly, and/or they would engage a contract killer to kill the applicant, and/or why he would leave his children in China if he felt his life was under threat, before it could be satisfied that the applicants are in genuine fear of persecution and that there is a real chance that either or both will be persecuted on their return to China. In the circumstances the Tribunal is unable to be satisfied that either or both of the applicants have a well-founded fear of persecution for a Convention reason on their return to China now or in the reasonably foreseeable future. Nor is the Tribunal satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of either or both of the applicants being removed from Australia to a receiving country that there would be a real risk of either or both of the applicants suffering significant harm. For the reasons given above the Tribunal is not satisfied that any of the applicants is [sic] a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

THE DECISION OF THE FEDERAL CIRCUIT COURT 25 In their application for judicial review the appellants set out their grounds of review in the following terms: 1. The manager supported by the local officer threatened me to sign their agreement. This will make demolishing my factory legally [sic]. To avoid their further persecution, I was forced to flee abroad for protection. 2. The Tribunal member failed considering all my claims and evidence, made jurisdictional error [sic]. 26 At least part of the application for review was based on the Tribunal having decided the matter without hearing evidence and argument from the appellants. The Tribunal did so because the appellants did not appear before the Tribunal in response to a written invitation that they appear before it at a specified time and date. 27 The Minister contended that the Tribunal was able to determine the application without taking any further action to allow or enable the appellants to appear before it. Section 426A of 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 and 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. 28 Before the Federal Circuit Court the appellants claimed that due to the illness of the second appellant they had not collected their mail from their post office box and they were unaware of the hearing before the Tribunal. One of the appellants also claimed that it "may be due to my… moving house that… I failed to receive the letter". 29 The learned primary judge considered the evidence that showed the Tribunal's invitation to appear dated 1 July 2013 was in fact dispatched on that date. His Honour was satisfied that the letter was returned marked "uncollected" on 12 August 2013 and that the envelope contained handwritten notations "Final Notice 24/7" and "RTS 30/7". 30 The primary judge held that it was open to the Tribunal under s 426A of the Act to make a decision on the application without taking any further action to allow or enable the appellants to appear. His Honour also concluded that there was no substance to the ground that the Tribunal had not considered the appellants' claims, noting that the Tribunal had set out the claims made by the appellants and that the reasons it gave indicated that the Tribunal understood and dealt with those claims. His Honour dismissed the appeal.

THE APPEAL TO THIS COURT 31 In the Notice of Appeal the appellants set out two grounds of appeal, namely that: (a) the Tribunal was biased; and (b) the Tribunal failed to take all claims into account according to section 91R of the Act. 32 The appellants did not file written submissions. 33 At the hearing the appellants were assisted by an interpreter, but were not legally represented. The first appellant submitted that he had not received the invitation to attend the interview with the delegate because he had changed address, and that he had also not received the invitation to attend the hearing before the Tribunal. He submitted that his wife had been very unwell psychologically and that he had been unable to leave his home for two weeks or more while he was looking after her, although he later seemed to accept that he had been required to leave his home in order to buy food. In essence he said that he had not collected the mail from his post office box for about one month because of his wife's illness.

Ground one - was the Tribunal biased against the appellants? 34 This ground of review was not raised in the application to the Federal Circuit Court and cannot now be advanced without leave. If leave had been sought I would have refused to grant it as no evidence or submissions were advanced in support of the ground. It must fail.

Ground two - did the Tribunal take all of the appellants' claims into account pursuant to s 91R of the Act? 35 Section 91R of the Act provides that Article 1A(2) of the Refugees Convention does not apply in relation to persecution of a person for one or more of the reasons mentioned in that Article unless that reason is the essential and significant reason, or those reasons are the essential and significant reasons for the persecution, and the persecution involves serious harm to the person and systematic and discriminatory conduct. 36 This ground was not developed in submissions, and s 91R does not appear to have any central relevance in the present case. There is no real issue that assaults and threats to kill of the type described by the appellants might be sufficient to satisfy a decision-maker that a person was threatened with such serious harm that it constitutes persecution under the Refugee Convention. Such occurrences might also satisfy a decision-maker under the complementary protection criterion in ss 36(2)(aa) and 36(2A) of the Act. 37 However, that is not really to the point. The Tribunal rejected the appellants' application because it was not satisfied: (a) as to the genuineness of the appellants' asserted fear of persecution; (b) that the fear of persecution was "well founded"; or (c) that the fear of persecution was for the reasons stated. The Tribunal was not, of course, obliged to uncritically accept the appellants' claims. 38 The Tribunal described a number of issues upon which it required more detailed information, which it did not receive because the appellants did not attend the hearing. In all the circumstances the Tribunal said that it was unable to be satisfied that: (a) either of the appellants had a well-founded fear of persecution for a Convention reason on their return to China; or (b) there are substantial grounds for believing that as a necessary and foreseeable consequence of either or both of the appellants being removed from Australia to a receiving country that there would be a real risk of him or her suffering significant harm. In effect, because of the appellants' non-appearance, the Tribunal was unable to explore the appellants' claims in more detail and could not be satisfied that they were persons to whom Australia owed protection obligations. 39 As the learned primary judge recognised, part of the appellants' complaint related to the Tribunal's decision to proceed to conduct its review in their absence when they did not attend the hearing. In my view while the Tribunal had a discretion under s 426A to proceed to hear the application notwithstanding that the appellants did not attend, in some circumstances a refusal to adjourn a hearing may constitute a denial of procedural fairness amounting to jurisdictional error. 40 The question of legal unreasonableness of the kind identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 232 ("Li") and Minister for Immigration and Border Protection v Singh (2014) FCAFC 1 ("Singh") was not specifically raised before the Federal Circuit Court, but it is inherent in the appellants' complaint. 41 In Kaur v Minister for Immigration and Border Protection [2014] FCA 915 ("Kaur") at [83] Mortimer J observed in respect to analogous provisions that the Act does not require the Tribunal to postpone or refrain from making a decision on a review because the applicant does not attend. I respectfully agree. While the terms of s 426A recognise the need for flexibility in the context of a particular review there is no free-standing obligation on the Tribunal in every case in which there has been a failure to respond to a hearing invitation or a failure to appear at a scheduled hearing to search its records to seek to find another way of communicating with the applicant, or to adjourn the hearing: Kaur at [133]. 42 The Tribunal's task in deciding whether to proceed to determine the applications or to adjourn them was to arrive at the correct or preferable decision in the case before it according to the material before it: Li at [10] per French CJ, referring to Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J. Whether it is correct or preferable to proceed in the applicant's absence depends on the circumstances of the particular case. It should also be kept in mind that the regime for determining visa applications would soon come to a grinding halt if the review process could be stopped simply by an applicant refusing or failing to attend interviews and/or hearings. 43 In my view there is nothing in the facts of the present case which reveals legal unreasonableness. 44 It is not contentious that the first appellant failed to attend the interview with the delegate and that this interview was intended to enable a well-informed assessment of the appellants' claims. The appellants accepted in submissions before me that this was an important interview. Having had their applications refused because they failed to attend the interview, and therefore (on their assertion) facing forcible return to persecution in China, one would think that they would be concerned to ensure that they attended the Tribunal upon the hearing of their review application. 45 The post office notations on the letter advising the hearing date before the Tribunal show that it was held in the appellants' post office box for about a month. The evidence is that although they were given almost one months' written notice of the hearing, the appellants assert that due to the second appellants' health they did not collect their mail from their post office box for that whole period. As a result they missed the hearing. They put on no evidence to establish these facts, and did not adequately explain the how it was impossible for them to pick up their mail for one month. There was nothing to indicate that it was unreasonable in all the circumstances for the Tribunal to decide their applications without providing a further opportunity for them to establish its merits. 46 In all the circumstances it was not unreasonable for the Tribunal to take the course that it did in determining the appellants' applications in their absence. The Tribunal had an "evident and intelligible justification" for doing so (Li at [76] per Hayne, Kiefel and Bell JJ) and the circumstances of this case do not give rise to the kind of unreasonableness that was identified in Li, Singh or Kaur.

CONCLUSION 47 I can discern no jurisdictional error in the Tribunal's decision or appealable error in the judgment of the Federal Circuit Court. 48 The appeal must be dismissed, and I order the appellants pay the first respondent's costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.