Affairs

[2006] FCA 1621

FEDERAL COURT OF AUSTRALIA

SZITM v Minister for Immigration & Multicultural

Affairs [2006] FCA 1621

SZITM v MINISTER FOR IMMIGRATION & MULTICULTURAL
AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1641 OF 2006

LINDGREN J
15 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1641 OF 2006

BETWEEN:

SZITM
Applicant

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	15 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed.

2.The applicant pay the first respondent’s costs of the application.

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	NSD 1641 OF 2006

BETWEEN:

SZITM
Applicant

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	15 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time in which to appeal against a decision of the Federal Magistrates Court of Australia.  On 28 July 2006, that Court dismissed his application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) and ordered him to pay the costs of the first respondent (‘the Minister’) in the sum of $5000.  The decision of the Tribunal was a decision made on 18 December 2003, and handed down on 15 January 2004, by which the Tribunal affirmed a decision of the Minister’s delegate not to grant a protection visa to the applicant. 

2. The applicant filed his application in this Court on 28 August 2006, ten days after the expiry, on 18 August 2006, of the 21 days period for appealing:  Federal Court Rules O 52 r 15(1).

3. The Tribunal found the applicant to be a national of the People’s Republic of China (‘PRC’).  It accepted that he had been retrenched during an exercise of economic reform.  His case was that after the retrenchment he became disillusioned and embarked upon a series of outbursts against the Chinese authorities.  Thus, his claim was that he had a well-founded fear of persecution on grounds of political opinion.

4. The applicant did not appear before the Tribunal at the hearing on 17 December 2003.  A notice of that hearing had been sent to him on 11 November 2003, both at his residential address and to a post office box nominated by him.  He said today that his agent did not make him aware of the hearing date, and that if he did receive the notification at his residential address he would not have understood it.

5. There were various matters on which the Tribunal was not satisfied, having regard to the little evidence that was before it. 

6. In particular, the Tribunal did not accept that the applicant had been persecuted by the authorities.  The Tribunal noted that the applicant had claimed that the authorities had interrogated him, confiscated his computer and let him go both from the alleged interrogation and, later, the PRC, all unconditionally.

7. Before the Federal Magistrate, the applicant relied on a draft amended application which asserted that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (‘the Act’). The applicant alleged that information regarding the applicant’s departure from China legally, and information that he had arrived ‘on a 456 temporary business visa’, were used as bases for the drawing of inferences adverse to him in the Tribunal’s decision. The Federal Magistrate also considered the issue of the Tribunal’s power to proceed in the absence of the applicant under s 426A(1) of the Act.

8. In the applicant’s application to the Tribunal, the applicant had not named an agent to act for him or to receive correspondence.  In that form of application he stated a residential address and a post office address, as if both were his own.  However, at the hearing before the Federal Magistrate, the applicant stated that the post office box mailing address was not his but was that of his agent.  The Federal Magistrate was prepared to assume that the application to the Tribunal had been made by the applicant’s agent without his informing the applicant, and further that the applicant did not have actual notice of the Tribunal’s letter dated 11 November 2003 which was sent to the applicant’s nominated mailing address, even though the letter was also sent to the applicant’s acknowledged home address.  The applicant blamed the agent for not informing him of the invitation for him to attend the Tribunal hearing.

9. The Federal Magistrate found that, even if he accepted the applicant’s factual claims, there was no basis for concluding that the Tribunal’s decision to proceed with the hearing had miscarried, as there was no contention or evidence that the Tribunal was on notice that the correspondence it had sent was not being received by the applicant. His Honour stated that in those circumstances, ss 425A and 426A(1) of the Act were exhaustive of the Tribunal’s obligations.

10. In relation to the alleged non-compliance with s 424A of the Act, his Honour found the Tribunal did not use the contradictions it noted as a reason to affirm the delegate’s decision, but that the Tribunal assumed the truth of the applicant’s claims, and found that there was no real chance of Convention-related persecution. The references to the contradictions in the protection visa application were, according to his Honour, merely ‘side commentary’ that did not form part of the reasons given by the Tribunal for affirming the delegate’s decision.

11. The only ground of appeal to this Court stated in the draft notice of appeal is that the Tribunal did not comply with s 424A of the Act. The information which the applicant states was the reason, or part of the reason, for the Tribunal’s affirming the decision under review was information contained in his protection visa application. However, I agree with the Federal Magistrate that the Tribunal arrived at its decision without relying on anything in the visa application. It was after the Member stated that he concluded that the applicant did ‘not have a case for a protection visa’, that he added that the Tribunal ‘does not walk away from this case, however, without observing the contradictions in the Applicant’s evidence, not only about being permitted to travel at all, but also in relation to his status in “business”’.

12. Apparently the Tribunal was referring to the fact that according to the visa application, the applicant had left the PRC on a ‘456 visa’ and had had no difficulties in obtaining a passport in his home country. 

13. There is a clear distinction between the Tribunal’s reasoning to its decision and its observations concerning the contradictions in the applicant’s evidence.

14. The proposed ground of appeal is without substance and does not warrant attention at appellate level.

15. The application for an extension of time should be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:        26 November 2006

The Applicant appeared in person.
Solicitor for the First Respondent:	Ms A Radich of Blake Dawson Waldron
The Second Respondent filed a submitting appearance
Date of Hearing:	15 November 2006
Date of Judgment:	15 November 2006