NBBN v Minister for Immigration
[2005] FMCA 1887
•9 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBBN v MINISTER FOR IMMIGRATION | [2005] FMCA 1887 |
| 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 – procedural fairness – an applicant cannot complain that her actions, taken in reliance upon advice received from her migration adviser, led to her being denied procedural fairness – a conclusion by the Refugee Review tribunal that there was an inconsistency between two pieces of information is not of itself “information” for the purposes of s.424(1). |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.424A
B41 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 30
SZFUZ v Minister for Immigration [2005] FMCA 694
SZBCM v Minister for Immigration [2004] FMCA 985
WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276
SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138
| Applicant: | NBBN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1015 of 2004 |
| Delivered on: | 9 December 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 December 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | Ms Walker appeared pro bono |
| Solicitor for the Respondent: | Mr Carter |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application is dismissed.
That the Applicant is to pay the Respondent’s costs fixed in the sum of $4,000.00
I allow 8 months to pay
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1015 of 2004
| NBBN |
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 that was made on 16th December 2003 and handed down on 14th January 2004. A hearing was scheduled for Tuesday 9th December 2003 at 9:30am. The Applicant did not attend the hearing. At page 52 of the Court Book the Tribunal member refers to the fact that the Tribunal had written to the Applicant on 10th November 2003 and invited her to attend a hearing to give oral evidence.
No response was received and on 26th November the letter addressed to the Applicant at her address for service was returned to the Tribunal marked "unknown at address". On 8th December, a case officer of the Tribunal rang the Applicant's adviser, a person called Jack Meng, who confirmed that the Applicant's address for service was the same as the address recorded on the case management system the Tribunal had.
When the Applicant did not appear at the Tribunal hearing, the Tribunal member made a decision to deal with the matter under s.426A of the Migration Act without giving the Applicant a further opportunity to appear.
The Applicant seeks a review of that decision and asks that orders should be made quashing the decision of the Refugee Review Tribunal and referring the application back to the Tribunal so that the Applicant can have the opportunity of attending its hearing. The Applicant relies on four grounds:
i)a denial of procedural fairness through the fact that the Applicant was unable to attend the hearing;
ii)a failure to comply with the provisions of s.424A of the Migration Act;
iii)that the Tribunal made an adverse finding in relation to the Applicant's credibility, and
iv)that substantial injustice would result if the Applicant should be required to return to China as she is a Falun Gong practitioner.
In respect of proceedings in the Federal Court, the Applicant claimed in an affidavit made on 30th March this year that she had failed to attend the RRT hearing because her solicitor, meaning her migration agent, did not want her to attend for the hearing. As a result, she did not attend. Whilst it is conceded that it was the fault of the migration agent that the Applicant did not attend and not the Tribunal, the Applicant submits that the Tribunal was aware or should have been aware of the unreliability of the particular migration agent who had been the subject of a number of complaints and has now in fact been disbarred. That took place after the events leading up to the Tribunal hearing in this case.
The submission is that the Tribunal should have adjourned the hearing because it was aware that Mr Meng was involved and the Tribunal should have had suspicions of Mr Meng's reliability. Whilst there appears to be no doubt that the man concerned was not a reliable migration agent it is difficult to see what else the Tribunal could have done. The Tribunal could not adjourn every hearing that involved a client's particular migration agent. The Tribunal had no other address for the Applicant than the address to which it had unsuccessfully written and was told by Mr Meng that that's the correct address.
If the Applicant is correct in her assertion and it is unchallenged before me that her migration agent told her not to appear at the hearing a probable result of any adjournment could well have been a further failure to appear. I have had the opportunity to read decisions of my colleagues, Federal Magistrate Driver in SZBCM v Minister forImmigration (2004) FMCA 985, and Raphael FM in SZFUZ v The Minister for Immigration (2005) FMCA 694. Each of their Honours suggest that an applicant cannot rely on a failure by a migration agent to rely on a claim for procedural fairness, or lack of procedural fairness.
In B41 of 2003 (2004) FCA 30 v Minister for Immigration and Multicultural and Indigenous Affairs Dowsett J said at 25:
In my view, the prosecutor cannot complain that his actions taken in reliance upon advice received from his immigration adviser led to his being denied procedural fairness.
In my view, this first ground must fail. Turning to the second ground, the failure to comply with s.424A of the Migration Act, it is not a breach of the section if the Tribunal had formed a view that the Applicant lacked knowledge of the principles and practices of Falun Gong in the light of the application, that cannot of itself justify a finding of a breach in the section. I note that at page 58 of the Court Book the Tribunal member said:
The Applicant's claims appear inconsistent with other information provided by her and with the independent information before the Tribunal.
The other information provided by her appears to be a reference to her protection visa application. This comes within the exception of s.424A and is found in sub-section 424A (3) (b) because it is the information that the Applicant gave for the purpose of the application. In the application for review in Section D, which appears at page 41 of the Court Book, the Applicant in setting out her reasons for review says:
Please see my file at DIMIA.
In my mind the Applicant is clearly bringing her application for a protection visa to the attention of the Refugee Review Tribunal for the purposes of relying on it. In fact she provides no other grounds for review. In any event it has been held in WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 that a conclusion by the Tribunal that there is an inconsistency between two pieces of information was not of itself information for the purposes of sub-section 424(1), and this decision was followed by Lindgren J in SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138. That is an appeal decision from this Court and again is binding upon the Court
Turning to the ground that the Tribunal made an adverse finding in relation to the Applicant's credibility as a Falun Gong practitioner, that ground can be answered by saying that the Tribunal did not make an adverse finding about the Applicant's credibility. The Tribunal made a conclusion in the course of the absence of detail and the lack of information that had been provided by the Applicant, so that ground must fail.
The final ground is that by denying the Applicant an opportunity to attend the hearing the Applicant would suffer substantial injustice. True it is that an applicant who does not attend a hearing of the Refugee Review Tribunal puts herself or himself at a very serious disadvantage, in light of the fact that a hearing is only held when the Tribunal cannot make a decision in the Applicant's favour based on the information before a Tribunal alone.
A decision not to attend the Tribunal hearing is extremely harmful to an applicant's chances of success, and renders failure before the Tribunal almost inevitable. But that in this case was not the fault of the Refugee Review Tribunal. It did offer the Applicant a hearing which the Applicant, in knowledge of the hearing, chose not to attend. She chose not to attend on the advice, incorrect though it was, of her migration agent. It follows then that there is no jurisdictional error and the application will be dismissed.
I think there is no doubt, and it certainly has not been in issue before me, that the Applicant had been badly let down by her then migration agent, Mr Jack Meng. In fact I note that in one of the decisions to which I referred today, SZBCM v Minister for Immigration that the migration agent there was that same Mr Meng. Certainly it seems to me that there are strong compassionate grounds in the Applicant's favour, though not of themselves a reason not to make an order for costs in a case where the Respondent has been successful.
To my mind, however, this would impose a crippling burden on her and in my view it should be dealt with by allowing time to pay. It is unlikely that the Applicant would have the ability to pay the costs within the usual 28 days provided by the rules and I believe that that period should be extended. I will allow eight months to pay.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 19 December 2005
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