WZAOI v Minister for Immigration and Citizenship

Federal Court of Australia|2011-08-12|Before: McKerracher J

INTRODUCTION 1 The appellant, a citizen of the People's Republic of China, arrived in Australia on 5 July 2009 on a Temporary Student Guardian visa (TU-580 visa). Subject to certain conditions, the visa was valid until 31 July 2010. On 26 July 2010, she lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). She was granted an associated Bridging visa while her application was processed. Ultimately, however, a delegate of the first respondent (the Minister) refused the application on 25 October 2010. On 24 November 2010, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the delegate's decision and the appellant sought review in the Federal Magistrates Court. His Honour dismissed the application. 2 This is an appeal from that judgment delivered on 30 May 2011 (WZAOI v Minister for Immigration & Anor [2011] FMCA 379).

APPELLANT'S CLAIMS 3 The appellant claims to have a genuine fear of harm and persecution as a result of her membership and practice of Falun Gong which had been banned in China since 1999. 4 The appellant claimed that she left China 'in order to avoid a risk of being jailed by Chinese authorities'. She fears that the Chinese authorities may harm or mistreat her, that she would be put in jail and that the 'Chinese authorities will continue prosecuting me' if she returns to China. The appellant does not consider that she will receive protection if she returns to China.

BEFORE THE TRIBUNAL 5 The Tribunal, being unable to make a decision favourable to the appellant on the basis of the material before it, invited the appellant to attend a hearing to give evidence and to present arguments. The appellant was also advised that if she did not attend the hearing and a postponement was not granted, the Tribunal would make a decision on her case without further notice. The invitation was sent by registered post to the address nominated by the appellant in her application for review. 6 The appellant did not respond to the invitation or provide any evidence in support of her application and failed to appear. As a consequence, the Tribunal made a decision on the review without taking any further action to enable the appellant to appear before it. 7 The Tribunal noted (at [26]) that it was for the appellant to satisfy the Tribunal that all the statutory elements of her claim were made out. It was also noted (at [26]) that the Tribunal was not required to accept uncritically any and all allegations made by the appellant. The Tribunal accepted that the appellant was a citizen of the People's Republic of China. The Tribunal recorded (at [28]) that had the appellant attended the hearing, the Tribunal would have: … discussed the details of her involvement with Falun Gong, including how and when she was introduced to Falun Gong, her level of involvement, what this involvement has comprised and any problems she has experienced in connection with her Falun Gong activities. 8 Without further information the Tribunal was not satisfied that the appellant was a Falun Gong practitioner or that she had been previously jailed for being a genuine Falun Gong practitioner. It followed that the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for any Convention-related reason.

THE FEDERAL MAGISTRATE'S DECISION 9 Before the Federal Magistrate the appellant claimed (without alteration) that: 1. The Tribunal based it's findings on the information contained in the applicant's application for a protection visa. 2. The Tribunal failed to explain why this information is relevant and made a jurisdictional error. 3. The Tribunal failed to provide the applicant with an opportunity to comment upon it. 10 The learned Federal Magistrate noted (at [19]) that ground 1 was 'truly nonsensical'. It was for the appellant to affirmatively satisfy the Tribunal of the facts which had to be established to satisfy the criteria for the grant of a protection visa at the Tribunal hearing. His Honour noted that this is actually the information the Tribunal is required to consider. It was for the appellant to provide any detailed information and to attend the Tribunal hearing. His Honour considered (at [21]) that the Tribunal had correctly approached its task and correctly refused to grant the visa. 11 His Honour also noted (at [22]) that a Tribunal decision could only be set aside upon judicial review if it involved jurisdictional error. There was no substance in review ground 1 and no jurisdictional error. 12 The Federal Magistrate considered ground 2 to be 'simply wrong'. The appellant had not only been invited to appear before the Tribunal but was also advised that the Tribunal would be unable to make a decision favourable to her on the information before it. The Tribunal did explain in its reasons why it was not satisfied. Therefore, his Honour dismissed review ground 2. 13 On ground 3, the invitation had been sent by registered post to the address expressly nominated by the appellant. His Honour considered (at [28]) the requirements of notification to have been met by the Tribunal. There was no obligation on the Tribunal to attempt to contact the appellant by telephone, and in this case that would have been futile as no telephone contact details had been provided. Therefore, the Tribunal was entitled to proceed to make a decision without an appearance. No jurisdictional error was made out.

GROUNDS OF APPEAL 14 The grounds of appeal from the decision of the Federal Magistrates Court are in these terms (again, without substantive alteration): 1. The Federal Magistrate Lucev failed to consider the [Tribunal] did not exercise its jurisdiction by not observing procedure which it was required by the Act to observe. 2. The Federal Magistrate Lucev failed to consider it is impossible for the appellant to provide evidence from China to demonstrate the appellant was jailed in China. 3. The Federal Magistrate Lucev failed to consider the [Tribunal] was required to provide particulars of information that was the reason or part of the reason for affirming the decision by Migration Act 1958.

THE HEARING 15 The appellant appeared on the hearing of her appeal. There were no written submissions filed in support of her appeal but written submissions for the Minister had been filed and served at least a week before the appeal. 16 Prior to hearing the appeal, I requested the interpreter translate the written submissions to the appellant so that she could understand the nature of the hearing and the arguments being advanced by the Minister. 17 In support of her argument, the appellant said simply that everything she had previously said and written was true and that she feared being imprisoned again if she was returned to China. No further argument was developed in support of the grounds of appeal which had been filed.

General considerations 18 It is well recognised that a migration appeal to this Court from the Federal Magistrates Court is an appeal in the strict sense and not an appeal by way of rehearing (White v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 511 per Ryan, North, Weinberg JJ). Notwithstanding this, where it is possible to do so, it is reasonable to explore explanations given by an appellant in circumstances where the appellant not only speaks no English but also clearly does not understand the technical aspects involved in review of jurisdictional error. There is a discretion to entertain a new ground of appeal if it is expedient and in the interests of justice to do so (Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32). It would only be in circumstances where some jurisdictional error is manifested by argument or explanation given by an appellant that there would be a basis for considering whether grounds of appeal should be amended. No such basis arises in this instance. That is not an unusual circumstance. 19 There was no indication that the Tribunal committed any jurisdictional error such as identifying a wrong issue, asking the wrong question, ignoring relevant material, relying on irrelevant material or not giving the appellant an opportunity to be heard. 20 The Minister did not object to the grounds of appeal to this Court being raised for the first time on this appeal. The Minister did not oppose leave being granted to raise new grounds as it was accepted that the points raised in the grounds were capable of being discerned from the argument before the Federal Magistrate. Accordingly I will address the grounds as though leave to advance them were given.

Appeal ground 1 21 The appellant does not specify or provide particulars of the procedures she contends were not observed by the Tribunal. The learned Federal Magistrate was correct to note that the invitation to the hearing was sent by registered post to the last address for service provided by the appellant on the application form for review. The appellant had not provided a telephone number or email address. Although she occupied a different residential address, her clear indication on the review form was that she wished all correspondence to go to the address for service which she nominated. It followed that the Tribunal sent the appellant an invitation to the hearing pursuant to s 425 and s 425A of the Migration Act 1958 (Cth) (the Act) in accordance with one of the prescribed methods contained in s 441A of the Act. She was given more that the prescribed 14 days notice of the hearing (see reg 4.35D(b) of the Migration Regulations 1994). It follows that the requirements of s 425A(3) of the Act were met. This ground cannot succeed.

Appeal ground 2 22 The Tribunal did not rely on an absence of information or documentation from China in relation to the appellant's alleged imprisonment. Rather, the Tribunal noted (at [29]) that had the appellant attended the hearing, the Tribunal would have asked her questions in relation to the alleged imprisonment. It concluded that without further information on the paucity of information before it, it was unable to be satisfied that she was imprisoned for being a genuine Falun Gong practitioner. The onus was on the appellant to advance whatever evidence or argument she wished to advance in support of her contention that she had a well-founded fear of persecution for a Convention reason: see SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 per Jacobson J. 23 As noted by Greenwood J in SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62 (at [13]-[14]): 13 It is clear from a consideration of the facts and the approach adopted by the Tribunal in reaching its conclusions on those facts that the Tribunal has approached the exercise of the review on the footing that the legislation (s 65(1)) requires the Tribunal to refuse the Appellant's application for a protection visa in circumstances where the Tribunal is not affirmatively satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa have been established. The Tribunal has correctly approached its task by determining that if it is unable to be satisfied of those matters, the Tribunal must 'refuse to grant the visa' (s 65(1)(b)). 14 The approach adopted by the Tribunal is entirely consistent with the observations of their Honours in SJSB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 255 (sic - 225) at [15], per Ryan, Jacobson and Lander JJ; Minister for Immigration & Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at [17], per Black CJ, Sundberg and Bennett JJ and Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The Appellant contends that the Tribunal ought to have exercised a statutory power to seek further information from the Appellant before reaching a conclusion as to whether it could be satisfied of the relevant matters. Section 424 of the Act is an enabling provision. It does not create a mandatory obligation, in terms. 24 In this instance, the approach taken by the Tribunal conformed entirely with the observations of the Full Court (Ryan, Jacobson and Lander JJ) in SJSB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 225 (at [15]).

Appeal ground 3 25 The position is that the Tribunal made a decision in circumstances where the appellant had failed to provide any detailed information and had failed to appear at the Tribunal hearing. 26 The appellant cannot be heard to complain that her application was rejected because, amongst other reasons, she failed to take up the opportunity to appear before the Tribunal and address any concerns it may have had about her claims (see the observations of the Full Court (Merkel, Ryan and Conti JJ) in S58 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492). 27 The Tribunal gave full consideration to the claims of the appellant and the information which was before it. 28 In NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (at [5]) the Full Court (French, Emmett and Dowsett JJ) observed: In assessing the adequacy of these reasons, 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. 29 The circumstances of this case are similar. The words 'failed to accept that opportunity' are chosen with care. If the invitation is misaddressed or an appellant is genuinely prevented from attending by circumstances beyond the person's control, the position may be different. 30 Here, however, there has been no suggestion at any time let alone admissible evidence that those exceptional circumstances applied in relation to this appellant.

CONCLUSION 31 The Federal Magistrate's decision was entirely correct for the reasons given. The appeal must be dismissed. 32 The following orders will be made: 1. The appeal be dismissed. 2. The appellant is to pay the first respondent's costs of the appeal to be taxed if not agreed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

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