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MIGRATION - Review of Refugee Review Tribunal decision - remitted from Federal Court - whether matter should be adjourned - merits review - no error of law - privative clause - application dismissed.

NBHQ v Minister for Immigration [2004] FMCA 767 (14 September 2004)

NBHQ v Minister for Immigration [2004] FMCA 767 (14 September 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBHQ v MINISTER FOR IMMIGRATION
[2004] FMCA 767




MIGRATION - Review of Refugee Review Tribunal decision - remitted from Federal Court - whether matter should be adjourned - merits review - no error of law - privative clause - application dismissed.

Migration Act 1958 (Cth)

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 43




Applicant:
NBHQ




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG2695 of 2004




Delivered on:


14 September 2004




Delivered at:


Sydney




Hearing date:


14 September 2004




Judgment of:


Mowbray FM




REPRESENTATION

Counsel for the Applicant:


In person




Solicitors for the Applicant:


In person




Counsel for the Respondent:


A Markus




Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The application be dismissed.

(2) The applicant pay the Minister's costs and disbursements of and incidental to the application fixed in the sum of $3,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG2695 of 2004

NBHQ



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an ex tempore judgment which has been revised and edited from the transcript of the hearing. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 30 April 2004 and handed down on 27 May 2004. The Tribunal affirmed a decision of a delegate of the Minister not to grant a protection visa.

2. The application was filed in the Federal Court on 21 June 2004. The application and the supporting affidavit filed the same day have been transferred to this Court by order of Wilcox J on 13 July 2004.

3. The relevant background facts are set out in paragraphs 1 to 7 of written submissions prepared on behalf of the respondent Minister:

1. The applicant is a citizen of China, who arrived in Australia on a visitor visa on 9 January 2004. On 15 January 2004 she lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department").

2. The applicant's claims are set out in a statement attached to her protection visa application.

3. In summary, the applicant claimed that she had been a Falun Gong practitioner for some eight years and had been persecuted due to her religious belief in Falun Gong. In particular, the applicant claimed that in May 2001 she was arrested for distributing brochures on "the Truth of Falun Dafa" on the street. She claimed that she was detained for three days and then sent to a "brain wash" class to study for three months. She claimed that she had to write a "self-criticism" letter in order to be released and pay 30 Yuan a day as an "education fee"
;. Upon her release she found that her business had been confiscated and whilst she tried to restart it, she failed.

4. On 22 January 2004, a delegate of the respondent made a decision, refusing to grant the applicant a protection visa.

5. On or about 16 February 2004, the applicant sought review of this decision by the Refugee Review Tribunal (&
quot;the Tribunal").

6. By letter dated 12 March 2004, the Tribunal invited the applicant to attend a hearing on 13 April 2004. A copy of this letter was sent to the applicant's migration agent as well as the applicant. The letter advised the applicant that the Tribunal had considered the material available to it in relation to her application but was unable to make a favourable decision on that information alone. The letter went on to state if the applicant did not attend the hearing, the Tribunal could make a decision on her case without further notice.

7. On 8 April 2004 the Tribunal received a response to the hearing invitation from the applicant indicating that she did not want to attend the scheduled hearing .

The law

Jurisdiction: the effect of section 474(1) of the Migration Act

4. Subsection 474(1) of the Migration Act 1958 (Cth) (the Act) provides:

(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

5. The effect of section 474 of the Act has been considered by the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (S157/2002) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441.

6. A decision by the Tribunal that involves a jurisdictional error - either a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act - is not a "decision made under the Act" and is thus not a privative clause decision as defined in sections 474(2) and 474(3) of the Act. Such a decision is therefore reviewable notwithstanding section 474.

7. However, not every breach of a restriction, limitation or requirement in the Act will result in jurisdictional error. The effect of section 474 of the Act is to necessitate an examination of the restriction, limitation or requirement in question to ascertain whether the non-observance of those limitations or requirements results in jurisdictional error in the light of the restrictions on judicial review pursuant to section 474 (S157/2002 at [77]). This is a matter of statutory construction and involves an attempt to reconcile the section 474 restrictions on judicial review with the particular restriction, limitation or requirement.

8. Reconciliation will not be possible where the non-observance is of an "inviolable jurisdictional restraint" or an "imperative duty" (S157/2002 at [76]). Therefore the jurisdictional error cannot be protected by section 474.

9. Examples of situations where an error will amount to a jurisdictional error in the light of section 474 are where there has been a "manifest defect of jurisdiction" and "manifest fraud" (S157/2002 at [12]) or where the error involves a limitation or duty which was "indispensable" or "essential to valid action" (S157/2002 at [76]). However, as a general proposition, jurisdictional error for the purposes of section 474 carries the same meaning as under the general laws: SDAV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 43.

10. A decision by the Tribunal made unfairly and in serious breach of the rules of natural justice is a jurisdictional error and is therefore not within the scope of protection afforded by section 474 (S157/2002 at [37]-[38], [83]).

11. The protection that section 474 purports to afford will also be inapplicable unless the three Hickman ((1945) 70 CLR 598) provisos are satisfied. The three Hickman provisos are that the decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to the body.

Other statutory provisions

12. The relevant provisions of the Act are sections 36(2) and 65. Part 866 in Schedule 2 of the Migration Regulations 1994 and article 1A(2) of the Refugees Convention 1951 are also applicable.

Request for an adjournment

13. The applicant claimed that her understanding was that the hearing was only to set a date for the substantive hearing. Her migration agent had told her this. She therefore was unprepared for a trial of the issues on the date of the hearing. The applicant said that she might seek the help of a lawyer.

14. Mr Markus, counsel for the respondent, opposed the adjournment. He indicated that the respondent had made it clear in several written documents and conversations to the applicant on a number of occasions that the day on which the matter was set down for hearing was for the substantive hearing of her application.

15. Mr Markus further contended that the applicant had failed to comply with orders of Wilcox J made on 13 July 2004 and her substantive case was without merit. Indeed, Mr Markus argued that the failure to comply with the orders of Wilcox J provided a ground for summary dismissal of the applicant's case for non-compliance.

16. I refused the request for an adjournment. In my view, the applicant had adequate warning that the day of the hearing was for the substantive hearing. She had an adequate opportunity to seek the assistance of a lawyer. Further, on the papers the merits of her case were questionable. Moreover, as Mr Markus indicated, the matter could have been dismissed summarily because of the failure to comply with Wilcox J's orders.

The claims before the Department and the Tribunal

17. The claims made to the Department are set out in the Court Book at pages 25 and 26 and the claims made to the Tribunal are set out at page 46. The claims to the Tribunal substantially reconfirm the earlier claims. In my view, these claims are accurately summarised in the respondent's outline at paragraph 3:

In summary, the applicant claimed that she had been a Falun Gong practitioner for some eight years and had been persecuted due to her religious belief in Falun Gong. In particular, the applicant claimed that in May 2001 she was arrested for distributing brochures on "the truth of Falun Dafa" on the street. She claimed that she was detained for three days and then sent to a "brain wash" class to study for three months. She claimed that she had to write a "self-criticism" letter in order to be released and pay 30 Yuan a day as an "education fee". Upon her release she found that her business had been confiscated and whilst she tried to restart it, she failed.

The applicant's case

18. In her application which was made under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth), the applicant set out her claims:

1. The respondents denied the applicant natural justice by not considering the context in which the applicant practised Falun Gong.

2. The respondents have not considered the evidence which is in favour of the applicant. They only have considered the evidence which is not in favour of the applicant.

19. Under the heading "The Grounds of the Application" the letters "N/A", which I assume mean "Not Applicable", are written. There is nothing further in the application.

20. In an affidavit accompanying the application, the applicant relevantly deposed:

12. I say that the respondents denied my claims as a refugee on the basis that I could not submit enough evidence and their insufficient understanding of the Falun Gong persecution in China.

13. I also say that the respondents denied [a] high degree of possibility of persecution if I go back to China to continue my religious activities in Falun Gong.

14. I also say that DIMIA and RRT have not considered the information that I have given to them which is in favor of my application. They have only considered the evidence which is not in favor of my application.

21. From the affidavit of 8 August 2004 filed on 11 August 2004 the applicant also deposed:

10. I say that such denial of natural justice has seriously deprived me of my chance of success to be recognised as a refugee that Australia has a duty to protect.

...

23. If the respondents did not consider this as persecution and a serious threat to personal dignity and safety, I say that I do not know what standard they are abiding by.

...

30. I say that the respondents failed to consider the context in which I was and will be persecuted and tortured for being a Falun Gong practitioner.

31. In reaching an illogical conclusion that I do not need Australia's protection, with all the evidence that I have provided, as well as publicly available information obtained by international human rights organizations and testimonies given by thousands of Falun Gong practitioners who fell victim to the Chinese government, I say that I have been denied natural justice.

22. During the hearing I invited the applicant on numerous occasions to put anything further that might assist the Court in identifying a legal error in the Tribunal's decision. She declined to do so, asserting that she was "in a muddle", could not say anything and was not prepared for a substantive hearing. She decided to make no substantive submissions at the hearing.

The respondent's submissions

23. Mr Markus, on behalf of the respondent Minister submitted essentially that the applicant's claims were misconceived. The Tribunal was not able to find that the applicant was a Falun Gong believer. Therefore the claim that the Tribunal failed to consider the context in which the applicant practiced Falun Gong was also misconceived. The applicant was really cavilling with the Tribunal's factual findings. The respondent's written submissions set out the applicant's grounds of review:

16. Essentially the applicant's complaint is that the Tribunal did not consider any evidence in her favour. This complaint is misconceived. The Tribunal clearly did consider the applicant's evidence but did not accept it. The Tribunal set out the applicant's claims at pages 4 and 5 of its decision and considered those claims at pages 6 and 7 of its decision.

17. The applicant was provided with an opportunity to attend a hearing before the Tribunal and did not do so. On the evidence available to it, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in China for a Convention reason.

...

19. In view of the fact that the applicant was informed in writing by the Tribunal that it could not make a decision in her favour on the basis of the documents before it alone, and in view of the fact that the applicant had not provided any further information to the Tribunal, despite having ample opportunity to do so, the applicant's complaints are baffling.

24. Earlier in the respondent's submissions, at paragraph 15, it is stated:

It is the respondent's submission that the Tribunal's decision, or approach, does not reveal any error of law, let alone any error going to its jurisdiction.

Consideration

25. For the reasons set out in the respondent's written and oral submissions, I accept that this application is devoid of merit.

26. The task of the Court is to identify legal error in the Tribunal decision and procedures. The applicant claims that she has been denied natural justice. In my view there is no evidence of this. As Mr Markus pointed out, on 12 March 2004 the applicant was sent a letter which stated:

The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

Hearing of the Tribunal

We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.

27. The letter then sets out the date for the hearing "Tuesday, 13 April 2004", and under the heading "Important information about your hearing" it says:

The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.

28. The Tribunal received a response from the applicant on 8 April 2004 in which under the heading "Do you want to come to a hearing?" she ticked the box which said:

I/we do not want to come to a hearing.

I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.

29. This document was signed by the applicant and dated 8 April 2004. In effect, she consented to a decision being made without taking up the opportunity to present to the Tribunal any further evidence from herself or any other person on her behalf.

30. The applicant decided not to attend the Tribunal hearing. She did not seek to postpone the hearing due to problems that she may have had with the date. She did not ask for further evidence to be obtained from other persons. I can see no merit in her claim that she was denied natural justice in relation to the hearing.

31. The applicant's second claim, that the Tribunal did not consider the context in which she practiced Falun Gong, is also misconceived. The Tribunal found:

Without any additional material from the applicant in support of those claims, I am not able to accept the applicant's unsupported assertions that she is a Falun Gong believer and provided financial and other support for the Falun Gong activities in China, including printing and distributing Falun Gong materials. She has not provided any details to support these claims, such as dates or locations. She has not claimed to have engaged in any Falun Gong activities in Australia.

32. Clearly the Tribunal was unable to find that the applicant was a Falun Gong practitioner. Furthermore, it is clear that no claim of denial of natural justice relating to this ground can be made out. It is undeniable that the Tribunal considered all the evidence that the applicant placed before it, vague as much of it was. This is evident from pages 4-7 of the Tribunal's reasons for decision.

33. In my view, the applicant is attempting to seek reconsideration of decisions of fact made by the Tribunal. This is reinforced by new factual claims set out in the affidavit of 8 August 2004. These of course were not before the Tribunal and are of no assistance to this Court which cannot engage in merits review.

34. Denial of procedural fairness or natural justice, failure to take a relevant consideration into account and failure to exercise jurisdiction by failing to consider all the applicant's claims can all amount to jurisdictional error. None of these grounds have been made out in this case. Here, the findings of the Tribunal were reasonably open to it on the evidence before it.

35. I can discern no legal error going to jurisdiction in the Tribunal's decision or in the way it conducted itself. Accordingly I find the decision of the Tribunal is a privative clause decision having regard to the decision of the High Court in S157/2002.

36. In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Migration Act and related to the powers conferred on the Tribunal.

Conclusion

37. The Court dismisses the application.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: Kelisiana Thynne

Date: 10 November 2004
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