Xie v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant is a national of the Peoples' Republic of China ("the PRC"). On 27 October 1998 the applicant, accompanied by his wife and adult daughter, arrived in Australia. At the time of their arrival they were travelling on valid passports issued by the PRC. 2 On 11 December 1998 the applicant, his wife and daughter filed an application for a combined protection visa. The application was dismissed by the delegate of the respondent on 30 December 1998. 3 On 28 January 1999 the applicant applied to the Refugee Review Tribunal ("the RRT") for review of the delegate's decision. The RRT, on 31 March 1999, affirmed the delegate's decision not to grant a protection visa. The RRT concluded that neither the applicant, nor his wife, nor his daughter, was a person to whom Australia had protection obligations under the Refugees Convention (as defined in the Migration Act 1958 (Cth) ("the Act")) as amended by the Refugees Protocol (as defined). 4 On 3 May 1999 the applicant made application to this Court pursuant to s 476 of the Act for review of the decision of the RRT. 5 The grounds of the application were : "1. The applicant was persecuted by his leadership at his work place because he held a different political opion [sic] from the Communist Party leadership in China. The applicant believes that the Chinese Communist Party has changed from a party aimed to serve the people in the country to a party aiming to exploit the people in the country; that certain policies implemented by the Central Committee of the Chinese Communist Party are not acceptable according to the view of the applicant. The applicant claims that he has been framed up by the leadership of his work place, which threatens him to take legal actions against him. These legal actions include civil matters which inccurs [sic] heavy fines and criminal matters because he is allergedly [sic] causing his employer heavy financial loss." 6 The applicant sought : "1. An order that the Department of Immigration grant him an opportunity to answer questions regarding his application for refugee status in front of case officer so that the officer will have a better understanding of the danger he is facing at the moment. The applicant also claims that the fact of not having been given a chance like this in the first place has put him into a disadvantages [sic] position as far as his application for refugee status is concerned." 7 The application was initially listed for hearing on 6 August 1999. On that date the applicant appeared when the matter was called. However without the presence of an appropriate interpreter, the matter could not proceed and it was necessary to adjourn the hearing until 27 August 1999. The respondent was directed to send by courier to the applicant at his residential address copies of the relevant documents, the respondent's outline of submissions and a list of legal aid agencies. This direction was necessary as it appeared that the material which had been served at the applicant's address for service, which was actually the address of a migration agent, was not being referred to the applicant. 8 On 27 August 1999 the applicant appeared in person and advised the Court that he had not been able to obtain legal representation or advice in the time available to him. The applicant sought an adjournment in order to obtain such advice. Through an interpreter the applicant made the following statements to the court : "THE INTERPRETER: On 7 August I got the courier letter from the solicitor. That was the first time I was notified about the opinion of the RRT. The migration agent, representing me, did not tell me anything about this hearing at RRT and I had no knowledge at all about a hearing of RRT. At that time I have two additional letters from Quanzhou and also one additional notice from the Chinese government. I had handed those evidence to my migration agent and he just told me he already passed them over to the court. HIS HONOUR: Yes? THE INTERPRETER: I apply as a refugee in October last year but the further evidence have been coming much later in this year and they came from the original factory I worked before in Quanzhou. HIS HONOUR: Yes, carry on. THE INTERPRETER: I wish, whenever possible, please give me more time so that I can consult those legal assistants with their names on this list so that I can understand my position in this very complicated matter. HIS HONOUR: Why didn't he have time to speak to more than one lawyer since this matter was last before the court? THE INTERPRETER: After I have received that document I ask my nephew to read over the document and then explain to me about the content of the document. And then later I try to contact those names on the list, who are legal assistants of agencies, but I can only contact one of them and this one I have contacted just told me the time is too short and he could not do sufficient preparation for this. HIS HONOUR: Is there anything else he wishes to say? THE INTERPRETER: As you have just told me those letters and notices I have received just recently, they are to be denied and not to be received by the court. Is that true? HIS HONOUR: That's correct, because this court can only decide questions of law that arose in the proceedings before the Tribunal. This court doesn't look at the merits of the claim, that is for the Tribunal. THE INTERPRETER: Then I have not much I can explain now. HIS HONOUR: Mr Markus, what do you say I should do? MR MARKUS: Well, your Honour, there are two things I wish to say. First, the applicant suggested that he hasn't seen the decision prior to my letter being delivered. That may or may not be so, I do not know, your Honour, but could I just draw your Honour's attention to page 10 of the bundle of relevant documents. There the applicant's signature appears at about point 5 and if I could draw your Honour's attention to the fact that that signature appears to be the same as the signature appearing on the application that is dated 1 May 1999. THE INTERPRETER: If ... migration agent did show document of the hearing of the RRT to me he did not explain to me about the hearing and actually I did not know anything about that." 9 Taken with the contents of the orders sought in the application for review, it is tolerably clear that one of the grounds of complaint is that the applicant did not have the opportunity to appear and answer questions personally in order to explain the basis of the claim for protection visas. 10 The respondent in his written outline of submissions submitted that by letter dated 5 March 1999 the RRT had advised the applicant that he and his family were entitled to come to the Tribunal and give oral evidence in support of their claims and had requested that they notify the RRT whether they wished to do so within twenty-one days of the date of the letter. In default of a response by the applicant, his wife or his daughter within the specified time, the RRT on 31 March 1999 proceeded to affirm the delegate's decision not to grant a protection visa. 11 The purport of the oral submission made on behalf of the respondent was that the applicant effectively waived his entitlement to an oral hearing by failing to respond to the RRT and thereby denied to the RRT the opportunity to question him, his wife and daughter in relation to their claims for protection visas. In default of a response from the applicant the RRT was required to proceed to make a decision on the material before it. Implicit in the submission is that the RRT had both the right and duty to proceed under the Act in the way that it did proceed to determine the application for review. 12 It was submitted that no grounds for review are made out by the applicant and that in truth the applicant seeks a merits review before this Court. 13 The question of an oral hearing before the RRT was also specifically dealt with by the RRT in its reasons. The RRT said : "On 5 March 1999 the Tribunal wrote to the Applicants advising that it had considered all the papers relating to their application but that it was unable to make a favourable decision on that information alone. The Applicant was advised that they were entitled to come to a hearing of the Tribunal to give oral evidence in support of their claims and were asked to tell the Tribunal within 21 days whether or not they wished to do so. The Applicants were advised that if they did not contact the Tribunal within that 21 day period, it would be assumed that they did not wish to come to a hearing and that a decision could then be made without further notice. The letter was sent to the Applicants at the nominated address for service in accordance with the regulations. A copy was also sent to the Applicants' adviser. No response was received. In these circumstances the Tribunal is satisfied that it has discharged its obligation to provide the Applicants with the opportunity to give oral evidence before it and that the Applicants have effectively declined that opportunity. This matter has therefore been determined on the evidence before the Tribunal. That evidence comprises the Department's and Tribunal's files relating to the application and information which the Tribunal has obtained from independent sources about matters referred to in the application." 14 The address for service on the applicant's application to the RRT for review of the delegate's decision was that of the applicant's migration agent. Effectively, the notice of 5 March 1999 was only given to the migration agent. Having regard to the failure of the migration agent to pass on to the applicant the material filed by the respondent in this Court, there is a real question whether or not the notice dated 5 March 1999 or the contents of it was ever communicated by the migration agent to the applicant or his wife or daughter. 15 The letter dated 5 March 1999, so far as is relevant, said : "Mr Jiong Sen Xie c/- 2/125 Park Road DUNDAS NSW 2117 5 March 1999 Dear Mr Xie RE: APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS) - Jiong Sen Xie; Lian Xin Yang; Xiao Hui Xie Please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them. NOTICE UNDER SECTION 426 OF THE MIGRATION ACT 1958 The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now entitled to come to a hearing of the Tribunal to give oral evidence in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person. You now need to tell the Tribunal ¨ Whether or not you want to come to the Tribunal to give oral evidence; and ¨ Whether or not you want to ask the Tribunal to obtain evidence from other people. PLEASE COMPLETE THE ENCLOSED 'RESPONSE TO HEARING OFFER' FORM AND RETURN IT TO THE TRIBUNAL BY 26 March 1999. If you want the Tribunal to take oral evidence from another person or persons, please complete the 'witness' details on the enclosed form. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name. If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form. Any documents you send must be in English, or must be translated into English by an accredited translator. If you tell us that you want to give oral evidence, we will write to you shortly and advise you of your hearing date. If you have any questions, please TELEPHONE Richard Wong on (02) 9951 5800. If you live outside Sydney please ring 1800 814 593 (for the cost of a local call). If you need an interpreter to make this call, please ring the Translating and Interpreting Service (TIS) on 131 450. IF YOU DO NOT RESPOND BY 26 March 1999 WE WILL ASSUME THAT YOU DO NOT WANT TO COME TO A HEARING AND THE TRIBUNAL MAY MAKE A DECISION ON YOUR CASE WITHOUT FURTHER NOTICE.