NBCC v Minister For Immigration and Anor (No.2)

[2005] FMCA 1934

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBCC v MINISTER FOR IMMIGRATION & ANOR (No.2) [2005] FMCA 1934

MIGRATION – Visa – protection visa – Refugee Review Tribunal – where applicant did not attend RRT hearing – where applicant did not attend Court on final hearing.

PRACTICE & PROCEDURE – Judgment – set aside judgment.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001 Rules 4.02, 13.03A, 16.05

NBCC v Minister for Immigration & Anor [2005] FMCA 1596
SZCPY & Anor v Minister for Immigration [2004] FMCA 646
SZBRB v Minister for Immigration [2004] FMCA 285
SZDXE v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FCA 1306
SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811
SZCGM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1196

Applicant: NBCC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 1007 of 2004

Delivered on: 19 December 2005

Delivered at: Sydney

Hearing date: 19 December 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Mr Chami

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1007 of 2004

NBCC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application under Rule.16.05 to set aside an order that I made on 24 October 2005 dismissing the Applicant's application for review of a decision of the Refugee Review Tribunal that was made on 2 January 2004 after a hearing scheduled for 11 December 2003.

   
   

   I presume that this is what the Applicant seeks as his application does not seek any orders at all. The application is defective in that it does not comply with Rule.4.02, which provides that:

   An application must precisely and briefly state the orders sought and (if the application is for a general federal law proceeding) the basis on which the orders are sought.

2. The application is accompanied by an affidavit by the Applicant sworn (or affirmed) on 14 November 2005. The contents of the affidavit are these:

   (1)  I didn't come to the hearing because I haven't received any letter.  I came to the level 16 to check two times but didn't get the hearing date. 

   (2)  I have changed my PO Box address.  I paid the money to post office, asked them to transfer my letter from PO Box to my home address. 

Background

1. The Applicant filed an application for review on 25 February 2004 in the Federal Court. On 5 April 2004 a Registrar of the Federal Court transferred the proceeding to the Federal Magistrates Court and listed the application for Final Hearing before me at 2:15pm on 24 October 2005. The Court reported listing shows that the Applicant was present in Court at the time with the assistance of a Cantonese interpreter. 

2. The Applicant filed an Amended Application on 23 April 2004. In that document he still used as his address his post office box number.  He did not file any notice advising the Court that he had changed his address for service. The solicitors for the Respondent Minister wrote to the Applicant on 17 October 2005 at the post office box address, serving on him a copy of their Outline of Submissions. This letter was returned unclaimed on 19 October 2005, marked "Left address /unknown". On 21 October 2005 the Respondent’s solicitors then forwarded a letter to the Applicant at another address in a Sydney suburb, but this was not the address that the Applicant has given on his present application. He told the Court that he had moved to that address about April this year. 

3. The Applicant is a Malaysian citizen who arrived in Australia on

   
   

   27 September 2003. On 9 October of that year he applied for a protection visa claiming a fear of persecution on the ground of his Chinese ethnicity.  He claims that he was discriminated against and not allowed to speak Chinese at school. He said he was excluded from some school activities and was refused entry to a local college where he wished to study after he left secondary school. The Applicant also claimed discrimination against him in employment to the extent that he was specifically barred from government jobs because of his Chinese ethnicity.  The Applicant also claimed that he and his family have been discriminated against because of their Buddhist religion.

4. In a written statement submitted with his application the Applicant said that many Buddhist temples were burned during the "Malaysia Civil War". He stated that “Chinese people were assaulted on the streets.  They burned our cars, our houses, our property and they killed Chinese people.  Recently Malaysia has just announced itself to be an Islam country.  This will further worsen the situation of Malaysian Chinese.”

5. The Applicant went on to claim “I fear that if I stay in Malaysia my life will be in danger”.

6. A delegate of the Minister refused the Applicant's application. The Applicant was granted a Bridging visa (class WA) with permission to work. He applied to the Refugee Review Tribunal for review of the delegate's decision.

7. The Refugee Review Tribunal wrote to the Applicant on

   
   

   20 November 2003 stating that it had considered the material before it in relation to his application but was unable to make a decision in his favour based on that information alone. The Tribunal invited the Applicant to attend a hearing at 9:30am on 11 December 2003 in order to give oral evidence and present arguments in support of his claims. 

8. The Applicant did not attend the hearing. The Tribunal proceeded to deal with the application for review without taking any further action to enable the applicant to appear before it. The Tribunal has the power to act in this way by virtue of s.426A of the Migration Act 1958. 

The Tribunal’s decision

1. The Tribunal found that the Applicant was a citizen of Malaysia. The Tribunal found that the Applicant's claims were "vague and general" and that his supposedly detailed information recounted only vague claims of interpersonal ill-feeling (see Court Book p.63). The Tribunal noted that the Applicant's lack of employment did not prevent him from affording a trip to Australia on a three months visitor's visa. 

2. The Applicant's claims about persecution for reason of his Buddhist religion during the "Malaysian Civil War" caused the Tribunal some puzzlement, as the Malaysian Civil War is not a recognised historical entity. The Tribunal member was not sure if the Applicant was referring to the Malayan Emergency of the 1950s or anti-Chinese outbreaks in Malaysia, the last serious racial clash being in 1969.

   
   

   The Applicant was not present at the Tribunal hearing and so was not able to explain what he meant.

3. The Tribunal was not satisfied on the evidence before it that the Applicant had a well-founded fear of persecution for a Convention reason (see Court Book p.64). The Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa.

4. The reason for the recitation of matters relating to the Applicant's substantive application relates to the fact that where an applicant seeks reinstatement of an application for judicial review there are two things that need to be considered by the Court.  First, the Court must consider the circumstances that caused the Applicant not to attend the hearing.  Those circumstances are not circumstances which would allow the application to be reinstated as a matter of course. It is well-established that an applicant for reinstatement must also show the Court that he or she has an arguable case. 

5. The authorities to which I refer are the decision of Driver FM in SZCPY & Anor v Minister for Immigration [2004] FMCA 646 and the decision of Raphael FM in SZBRB v Minister for Immigration [2004] FMCA 285. It is necessary to establish the circumstances relating to an Applicant's substantial application in order to establish whether the Applicant would be able to show an error of law on the part of the Tribunal or would at the very least have an arguable case.

6. I have considered both legs of the application. The Applicant says that he did not attend the hearing because he did not receive any letter.

   
   

   He had changed his address so that he no longer used the post office box address but he used his current home address. As I have indicated, at no time did the Applicant advise the Court of his change of address for service. The first that the Court knew of his current address was when he filed his application and affidavit to reinstate the proceedings on 14^th November this year. In any event, it is not in issue that the Applicant attended the hearing before the Registrar on 5 April 2004 where the application was transferred from the Federal Court to this Court and was listed for hearing before me at 2:15pm on 24 October 2005. The Applicant would have received a copy of the Short Minutes of Order which he signed with the assistance of a Cantonese interpreter, but it may well be that he has lost or mislaid that document. He told the Court that he had it in his mind the hearing was in November. 

7. In the ordinary course of events I would not regard that as a sufficient reason. I look at the substantive application. The Applicant in effect seeks a merits review of the Refugee Review Tribunal decision. The Applicant told the Court that he did not attend the Tribunal hearing because he did not know about it. He said that a friend prepared his documentation for him and the friend was not a migration agent but one who is studying. He claimed to be unaware of the decision of the Refugee Review Tribunal, but quite clearly he had to be aware that the Tribunal had made a decision in order to commence these proceedings for review of that decision. He claimed that any document that he received he had given to his friend because he does not speak English.  He admitted that his application filed at this Court was his document and that he had signed it after it had been prepared by his friend.

   
   

   He admitted that his friend told him that he should attend the hearing before the Registrar on 5 April last year. 

8. It is difficult to see why it is that the Applicant did not attend the hearing of the Refugee Review Tribunal. Unfortunately, there are many decisions of this Court and of the Federal Court where applicants have for one reason or another not attended a Tribunal hearing. All too often this leads to the Tribunal not being satisfied that the applicant has made out a case that he or she is entitled to a visa. The matters have been looked at by the Federal Court in SZDXE v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FCA 1306. That was an appeal from the Federal Magistrates Court and the Honourable Hely J was hearing that appeal by direction of the Chief Justice under s.25 (1A) of the Federal Court of Australia Act 1976.

9. In that case an applicant had not attended a Tribunal hearing.  At paragraph16 of the decision his Honour in referring to that applicant said:

   The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the applicant's favour on the basis of the information before it.  As the Full Court observed in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing the inevitable consequence was the rejection of his application.

10. In SZCGM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1196, also an appeal from a decision of a Federal Magistrate, Allsop J sat as a single Judge pursuant to a direction of the Chief Justice under s.25 (1A) of the Federal Court of Australia Act. His Honour noted that the appellant in that case had declined the invitation to attend the hearing to give oral evidence. His Honour noted at paragraph16 of that judgment that the Tribunal was unable to be satisfied of the relevant criterion required by the Migration Act that the applicant had a well-founded fear of persecution for a Convention reason.

11. In paragraphs 21 and 22 his Honour said these words:

    Set against the whole background of the balance of the reasons which disclose clearly why the Tribunal's mental processes prevented it from being satisfied, these findings in the last paragraph are not truly integral to the conclusion.  Further, they can be seen as simply another way of expressing what has previously been expressed; that is, that the evaluation of the information does not enable a state of satisfaction to be reached. 

    In substance, the reason for the Tribunal not being satisfied the appellant had a well-founded fear of persecution was its evaluation of the material put forward earlier by the appellant. 

12. In SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 Bennett J hearing an appeal from the Federal Magistrates Court again dealt with a matter where an applicant had failed to appear. Paras.15 and 16 her Honour looked at the operation of s.426A of the Migration Act and said at para.16:

    By not attending the hearing the applicant has in effect waived his opportunity to provide further comment on adverse information (Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82).  He cannot then complain that by that action on his part the Tribunal has denied him procedural fairness.

13. All of these decisions relate to the unfortunate situation where an applicant for one reason or another does not attend the Tribunal hearing.  This Applicant claims that he was not told about the hearing and left it to his friend to look after his interests. That may well be the case and if so he has been badly let down by his friend. But in examining the Tribunal's decision it is clear that the Tribunal was not satisfied on the basis of the vague general information that was provided.  When the Applicant lodged his application for review all that his application for review told the Tribunal was a republication of the material that he had given to the Department of Immigration and Multicultural and Indigenous Affairs. Section D of the RRT review application appears at p.47 of the Court Book and the reasons for making the application are set out as these:

    Please see my statement from DIMIA.

14. Dealing then with the application to reinstate the substantive application for judicial review, there are two matters that need to be considered:  the reasons why the Applicant did not attend the hearing and the utility or otherwise of any reinstatement. As far as the first leg of the application is concerned, I am satisfied that the Applicant was aware of the time, date and place of the hearing.  If he overlooked the hearing date, he made no effort to re-find out what that date was or even to keep the Court informed of his current address. He can hardly be heard to complain that the hearing proceeded in his absence.

15. Looking also to the utility of reinstatement of his application, I am satisfied that, as in most cases where an applicant does not attend a Tribunal hearing, there would be no utility whatsoever in listing this matter for a final hearing. On the material before me the application could not succeed. The Applicant's case failed because he did not attend the hearing and did not provide anything like sufficient detailed information to the Tribunal to enable the Tribunal to be satisfied that he met the criteria for a refugee.

16. The Applicant is not in a position, because applicants may not do so, to file any further evidence. The Court does not reconsider RRT decisions as a merits review, let alone a hearing de novo; it is an application for judicial review. In my view, a substantive application would be doomed to failure. As far as the application to reinstate the substantive application is concerned, it is dismissed. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  22 December 2005