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Xie v Minister for Immigration & Multicultural Affairs [1999] FCA 1480

MIGRATION - Review of decision of Refugee Review Tribunal ("RRT") to refuse a protection visa - what rights, if any, does an applicant have to an oral hearing where non-favourable decision made by the RRT on the papers - whether the RRT can impose any preconditions to the exercise of the entitlement to be heard.

Migration Act 1958 (Cth) ss 423, 424, 425, 426, 427, 428, 429, 441 and 476(1)(a)

Rajiv Singh Budiyal v The Minister for Immigration and Multicultural Affairs [1998] FCA 243 Cited

XIE, JONG SHEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO N386 OF 1999

COOPER J

BRISBANE (HEARD IN SYDNEY)

28 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N386 OF 1999

BETWEEN:

XIE, JONG SHEN Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: COOPER J

DATE OF ORDER: 28 OCTOBER 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1.  The decision of the Refugee Review Tribunal of 31 March 1999 be set aside.

2.  The matter be remitted to the Refugee Review Tribunal for reconsideration in accordance with these reasons and with law.

3.  Notice of the time and place of the hearing of the applicant's application by the Refugee Review Tribunal be given in writing sent to the applicant's residential address as well as to his address for service as notified to the Refugee Review Tribunal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N386 OF 1999

BETWEEN:

XIE, JONG SHEN Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: COOPER J

DATE: 28 OCTOBER 1999

PLACE: BRISBANE

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

[diamond] Whether or not you want to come to the Tribunal to give oral evidence; and

[diamond] 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.

Yours sincerely

For Deputy Registrar

Sydney Registry

Encls: "What is a Hearing?" brochure; multilingual advice

Cc: Jack Meng Immigration & Translation

2/125 Park Road

DUNDAS NSW 2117"

16. There is no question that service of the notice by mail addressed to the applicant's address for service was other than effective for the purposes of the Act and the Migration Regulations 1994.

17. The Act, at the time the application for review was filed with the RRT and at the date of its determination, dealt with the conduct of the review in Division 4 of Part 7 of the Act. So far as is presently relevant the Division provided :

"423(1)An applicant for review by the Tribunal may give the Registrar:

(a) a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

(b) written arguments relating to the issues arising in relation to the decision under review.

(2) The Secretary may give the Registrar written argument relating to the issues arising in relation to the decision under review.

424(1) If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.

(2) For the purposes of subsection (1), a decision or recommendation made on a review is taken to be the decision or recommendation most favourable to the applicant if there is no other decision or recommendation that:

(a) the Tribunal could make; and

(b) in the Tribunal's opinion, the applicant would prefer the Tribunal to make."

425(1) Where section 424 does not apply, the Tribunal:

(a) must give the applicant an opportunity to appear before it to give evidence; and

(b) may obtain such other evidence as it considers necessary.

(2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.

426(1) Where section 424 does not apply, the Tribunal must notify the applicant:

(a) that he or she is entitled to appear before the Tribunal to give evidence; and

(b) of the effect of subsection (2) of this section.

(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

427(1) For the purpose of the review of a decision, the Tribunal may:

(a) take evidence on oath or affirmation; or

(b) adjourn the review from time to time; or

(c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or

(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

(2) the Tribunal must combine the reviews of 2 or more RRT-reviewable decisions made in respect of the same non-citizen.

(3) Subject to subsection (4), the Tribunal in relation to a review may:

(a) summon a person to appear before the Tribunal to give evidence; and

(b) summon a person to produce to the Tribunal such documents as are referred to in the summons; and

(c) require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and

(d) administer an oath or affirmation to a person so appearing.

(4) The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia.

(5) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.

(6) A person appearing before the Tribunal to give evidence is not entitled:

(a) to be represented before the Tribunal by any other person; or

(b) to examine or cross-examine any other person appearing before the Tribunal to give evidence.

(7) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.

428(1) The power of the Tribunal under paragraph 427(1)(a) to take evidence on oath or affirmation for the purpose of a review may be exercised by the Tribunal or on behalf of the Tribunal by:

(a) a person appointed or employed under the Public Service Act 1922; or

(b) another person approved in writing by the Minister for the purposes of this section;

who is authorised in writing by the Tribunal.

(2) The power of the Tribunal may be exercised under subsection (1):

(a) inside or outside Australia; and

(b) subject to such limitations (if any) as are specified by the Tribunal.

(3) If a person other than the Tribunal is authorised under subsection (1) to take evidence for the purpose of a review:

(a) the person has, for the purpose of taking that evidence:

(i) all the powers of the Tribunal under subsection 427(1); and

(ii) the power to administer an oath or affirmation to a person appearing before the first-mentioned person to give evidence; and

(b) for the purpose of the exercise of those powers by that person, this Part has effect (except where the context otherwise requires) as if a reference to the Tribunal included a reference to that person.

(4) If a person (other than the Tribunal as constituted for the purpose of the review) exercises the power of the Tribunal to take evidence on oath or affirmation for the purpose of a review, the person must cause a written record of the evidence taken to be made and sent to the Tribunal.

(5) If the Tribunal receives, under subsection (4), a record of evidence given by the applicant, the Tribunal, for the purposes of section 166DB, is taken to have given the applicant an opportunity to appear before it to give evidence.

429. The hearing of an application for review by the Tribunal must be in private."

18. Sittings of the RRT were dealt with by s 441 of the Act, which provided :

"441(1)Sittings of the Tribunal are to be held from time to time as required, in such places in Australia as are convenient.

(2) The Tribunal constituted by a member may sit and exercise the powers of the Tribunal even though the Tribunal constituted by another member is at the same time sitting and exercising those powers."

19. In the present case it is clear that after a review on the papers the RRT was not prepared to make a decision in the applicant's favour without taking oral evidence. In consequence s 424 of the Act did not apply. The applicant, his wife and his daughter when s 424 of the Act became inapplicable, obtained a statutory entitlement to appear before the RRT to give evidence. The right of the applicant and his family to be heard orally about the issues arising in relation to the decision under review was a statutory right sourced in s 425 of the Act. The Act provides no preconditions to the exercise of the entitlement to be heard. Section 425(1) is a procedural requirement which must be followed.

20. The applicant and his family also became entitled to the right to request the RRT to call witnesses to give oral evidence on the issues arising in relation to the decision under review. This right is subject to a pre-condition, namely that written notice be given to the RRT of the request within seven days after being notified in accordance with s 426(1) of the Act: see s 426(2).

21. The structure of Division 4, in my view, requires that any review by the RRT which was not a review on the papers to which s 424 applied, be by way of hearing by the RRT sitting in private (s 429) and being adjourned from time to time (s 427(1)(b)) as was necessary to receive and consider any evidence and other material upon which findings of fact were to be based. Section 441(1) of the Act required that the RRT hold sittings from time to time as required for the purpose of discharging its functions under the Act.

22. Division 4 required that the RRT, upon forming a view that s 424 did not apply to the applicant's application for review, fix a time and place for the hearing of the review and give to the applicant and his family notice that they were entitled to appear on that hearing to give evidence (s 426(1)(a)) and that they had a right to request in writing within seven days that nominated witnesses be called on the hearing of their application (s 426(1)(b)). The only constraint on the fixing of the date and place of the hearing was that the notice must be reasonable, in terms of the time before which a hearing would be heard and the location of the hearing, being such that the right to give evidence was not rendered illusory or nugatory: Rajiv Singh Budiyal v The Minister for Immigration and Multicultural Affairs [1998] FCA 243 at pages 9 - 10. What I have stated as to the proper construction of the Division was also the approach specified in the Practice Direction of the RRT issued on 17 October 1995: see Australian Immigration Law, Butterworths Vol 1 para [6950] and following, especially at [6954]. The RRT did not follow that approach in respect of this application for review.

23. The RRT had no statutory power to impose conditions on the applicant and his family as to the exercise of their statutory right to give evidence on the hearing of their application for review by imposing time limits within which an election to be heard must be made. Nor was the RRT entitled to make the assumption that failure to respond meant that the applicants did not wish to attend on the hearing and give oral evidence as was their entitlement. Although it may have been administratively wearisome, the only course open to the RRT when it determined s 424 did not apply, was to set a date which it notified under s 426 and to proceed to a hearing on that date. It was the hearing which was the occasion on which the applicant and his family were entitled to give evidence or not as they then chose. No internal administrative arrangements of the RRT could take away that entitlement of the applicant and his family; certainly not without their informed consent communicated by them in a positive way to the RRT.

24. There is nothing in the amendments in Part 1 of Schedule 3 to the Migration Legislation Amendment Act (No 1) 1998 (Cth) which would lead to a contrary construction of Division 4. The amendments simply make clear that an applicant for review has a right to appear and give evidence on a hearing of the application for review (the new s 425; s 425A) and that the RRT's right to proceed without hearing the applicant arises on the failure of the applicant to appear on the hearing (s 426A). The amended provisions in Schedule 3 came into operation on 1 June 1999 after the review in the present case had been completed.

25. The consequence of the procedure adopted by the RRT was that it failed to observe the requirements of the Act in connection with the making of the decision. That is a ground for judicial review in this Court of the decision of the RRT; s 476(1)(a).

26. The failure to follow the requirements of the Act has meant that the applicant and his family have not had the merits of their case fully investigated due, in part, to the absence of the applicant from the hearing and the failure to present to the RRT material acquired after the filing of the application for review in January 1999. There has been a further consequence from the failure of the RRT to follow the requirements of the Act. The RRT has proceeded on the basis and expressed the opinion that it was denied the opportunity to obtain further information or explore further issues raised on the material because of the failure of the applicant to appear on the hearing. If the RRT meant by this statement that it had no power under the Act to obtain that information by way of evidence simply because the applicant failed to give oral evidence, then in my view it acted in error. Section 425(1)(b) of the Act, before its repeal, provided such a power, if the RRT chose to exercise it.

27. It follows, in my view, that in the circumstances which have occurred there has been no hearing of the applicant's application, nor that of his wife and daughter, for a protection visa according to the substantial justice and merits of the case. As to the merits of the case, I express no opinion.

28. I grant the application for review. I set aside the decision of the RRT of 31 March 1999 and remit the matter for consideration in accordance with law. Having regard to the failure of the migration agent to communicate to the applicant what seems to be all of the relevant material, the RRT is directed to give the notice of hearing to the applicant at his residential address as well as his address for service.

29. The applicant was self-represented and filing fees on the application for review have been waived. Accordingly no costs order is called for.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated: 28 October 1999

Applicant in person: Jong Shen Xie

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 27 August 1999 (Sydney)

Date of Judgment: 28 October 1999 (Brisbane)