NBAG v Minister for Immigration
[2005] FMCA 322
•3 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBAG v MINISTER FOR IMMIGRATION | [2005] FMCA 322 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of China – where applicant did not attend the RRT hearing – where applicant did not attend the hearing of the application for review. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.425, 425A, 426A, 475A
| Applicant: | NBAG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1017 of 2004 |
| Delivered on: | 3 March 2005 |
| Delivered at: | Sydney South |
| Hearing date: | 3 March 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | No Appearance |
| Counsel for the Respondent: | Ms Knight |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs of this application in the sum of $ 4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1017 of 2004
| NBAG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 9 December 2003 and handed down on 6 January 2004. The Tribunal affirmed a decision by a delegate of the Minister not to grant a protection visa to the Applicant. The Applicant has sought a review of that decision. A brief background to the case is that the Applicant is a citizen of the Peoples Republic of China. He arrived in Australia on 8 March 2003. He applied for a protection visa on 18 March 2003, 10 days later. In his application the Applicant said that he was a practitioner of the Falun Gong belief and faced persecution in his home country for that reason.
A delegate of the Minister refused his application for a visa on 8 April 2003. On 8 May the Applicant applied to the Refugee Review Tribunal. On 31 October 2003 the Refugee Review Tribunal wrote to the Applicant. They wrote to him at the address of his migration adviser. They also sent a copy to him direct at his last known address. That address was the CB Hotel, 417 Pitt Street, Sydney. In the letter the Refugee Review Tribunal said it had considered the material in his application. The Tribunal said that it was not able to make a decision in the Applicant's favour based just on that information. For that reason they asked the Applicant to attend a hearing. That hearing was scheduled for 9 am on Tuesday, 9 December 2003. The Applicant did not attend the hearing. The letter addressed to the Applicant at the CB Hotel was returned unclaimed. The Applicant says that his migration agent did not tell him about the hearing. If he had known about the hearing he would have attended. He says that it is the fault of the migration agent that he did not go to the hearing.
The Tribunal proceeded with the hearing. The Tribunal has the power to do that under s.426A of the Migration Act. The Tribunal had decided to invite the Applicant to appear for a hearing and had given him notice to appear. In my view, the Tribunal did what was required of it to inform the Applicant about the hearing. It is unfortunate that the letter addressed to the applicant at the CB Hotel was returned unclaimed.
I am satisfied that the Tribunal complied with s.425 and s.425A of the Migration Act. In his amended application, which appears to have been prepared by his migration agent, the Applicant says that the Tribunal did not follow s.426A. The Applicant said that he was denied a hearing. In my view, that is not correct. It appears that the Tribunal has complied with s.426A. Sub-section 1 of s.426A says this:
(1)If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which the applicant is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
In my view, the Refugee Review Tribunal did comply with s.426A of the Migration Act. In the applicant's second ground he said that the Tribunal constructively failed to exercise its jurisdiction. He says that it failed in two ways. Paragraph 2A, the Applicant says that the Tribunal failed to conduct a real rather than a purported exercise of its jurisdiction. Ms Knight, for the Respondent Minister, points out that that claim is not particularised and has no basis. The Applicant says that the Tribunal improperly precluded itself from considering the material which supported the Applicant's claim. Ms Knight says that there is no indication that that happened. The Applicant had said that he was liable to persecution because he was a Falun Gong practitioner. In my view, the Tribunal did consider those claims as set out by the Applicant.
The Tribunal appeared to understand its task and carried out that task in accordance with the law. The third ground of the Applicant's submission was that the Tribunal formed its views in the absence of probative material. The Applicant says that the RRT decision was not rationally formed. The Applicant says that the decision was not made on logical grounds. I should note, at this stage, that the Applicant said he did not prepare the amended application. He said it was prepared by his migration agent.
In any event, the Applicant's claim seems to be merely a review of the evidence. Judicial review of the Tribunal's decision relates to errors of law and procedure. The Court does not conduct a re-hearing of the facts of the case. Where a claim seeks a merits review it will not succeed before the Court. It is most unfortunate that the Applicant did not attend the hearing. It is well known to the Court that Applicants who do not attend a hearing before the Refugee Review Tribunal are at a great disadvantage. The Tribunal holds a hearing when it cannot be satisfied that it should grant the Applicant's application based just on the papers before it. That is why the Tribunal must invite the Applicant to appear at a hearing under s.425 of the Migration Act. In many cases where applicants do appear at Tribunal hearings they are able to convince the Tribunal that their claim has merit. When an applicant does not appear at the Tribunal hearing it is very hard for that Applicant to succeed.
In this case I am satisfied that the Applicant has not made out his claim. He has not shown any reviewable error on the part of the Tribunal. Accordingly, I am obliged to dismiss the application.
This is a matter where I am satisfied that costs follow the event, and I do propose to make an order that the Applicant pay the Respondent's costs. The sum of $4000 is sought and I consider that that is within the range prescribed
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 17 March 2005
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