SZBHU v Minister for Immigration
[2007] FMCA 212
•20 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBHU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 212 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether decision of Refugee Review Tribunal affected by jurisdictional error – whether Refugee Review Tribunal entitled to proceed to make decision on the review in absence of the applicant. |
| Migration Act 1958 (Cth), ss.65; 425; 425A; 426A; 441A; 441A(4); 441C(4); 474; 477 Migration Litigation Reform Act 2005 |
| Applicant: | SZBHU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG297 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 February 2007 |
| Date of last submission: | 20 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Ms F. Kerr, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG297 of 2006
| SZBHU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 July 2003.
The applicant was unrepresented before this Court this morning, although had the assistance of an interpreter.
RECORDED : NOT TRANSCRIBED
The applicant originally filed an application in this Court on 25 August 2003 seeking judicial review of the Tribunal decision. On
13 November 2003, the applicant failed to appear at a directions hearing of this Court as a result of which the matter was stood over to 27 February 2003. On 27 November 2003, a Registrar of this Court dismissed the applicant's proceeding by reason of the applicant's failure to appear.
On 31 January 2006, the applicant filed an application in this Court in which he sought an extension of time for making his application under s.477 of the Migration Act 1958 (Cth) (“the Act”).
In circumstances where an applicant has been notified prior to 1 December 2005 of a decision of the Refugee Review Tribunal, the Migration Litigation Reform Act 2005 deemed notification of that decision to be 1 December 2005. The time frame provided by s.477 of the Act allows an applicant 28 days from date of the notification of the decision to file an application for judicial review of that decision. By reason of the deeming provisions of the Migration Litigation Reform Act 2005, time runs from 1 December 2005 against an applicant. Pursuant to s.477(2) of the Act and this Court may extend the 28 day period by a further 56 days if an application for that order is made within 84 days of the actual as opposed to deemed notification of the decision and the Court is satisfied that it is in the interests of justice to do so.
On 7 December 2006, an order was made by this Court, by consent, reinstating the applicant's application filed on 25 August 2003 and granting leave to the applicant to rely upon the amended application filed by him on 31 January 2006. Directions were also made on that occasion for the filing of any evidence by the applicant by 19 January 2007 and directed that the applicant file and serve written submissions 14 days before the hearing. No document has been filed by or on behalf of the applicant since that date.
The application filed by the applicant on 31 January 2006 is in the following terms:
“RRT made a decision that is neither fair nor reasonable as it was made in my absence to give oral evidence and arguments as I did not receive any letter to attend any hearing. Apparently it is not a registered letter. RRT’s grounds for rejection of visa are insufficient as RRT has not considered my evidences that I submitted to the Minister of Immigration for ministerial intervention on 22 April 2004 as per copies submitted herewith.
In the Year 2005, the senior Chinese diplomat, Mr CHEN YONGLIN defected to Australia dropping the bombshell saying that there are more than 1000 Chinese spies and secret agents operating in Australia monitoring Falun Gong practitioners. Now MR CHEN YONGLIN, he himself has already got his protection visa and becomes an Australian Permanent Resident leaving me and all other Falun Gong practitioners jeopardised and facing persecution if I am forced to return to China. The risks are genuine because these spies and secret agents permeate every level in the Chinese community. Only after a short while he was granted a Protection Visa, he travelled to U.S.A. to give evidence in the U.S. Senate which further exposed their activities to the world. With 5000 years of history in china, it has long taught the Chinese Government that they could be overthrown by peasants, like Falun Gong practitioners, without guns.”
From the application, I understand there to be 3 grounds of review relied upon. They are identified and dealt with below.
Ground 1 of the application asserts that the applicant did not receive any letter to attend the hearing and in those circumstances it was not fair or reasonable for the Tribunal to make a decision in his absence without giving him an opportunity to give oral evidence and arguments.
The Tribunal decision affirmed a decision of a delegate of the first respondent dated 21 June 2002, which refused the applicant a protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 24 July 2002, the applicant filed an application for review of the delegate's decision by the Tribunal and identified his home address and mailing address as the same address.
On 4 November 2002, the applicant lodged a change of contact details with the Tribunal with details of his new address.
On 4 November 2002, the Tribunal wrote to the applicant acknowledging receipt of his change of contact details and confirming that the Tribunal's records had been updated in accordance with that notification.
On 30 May 2003, the Tribunal wrote to the applicant at his new identified address for service, stating that the Tribunal had considered the material before it but was unable to make a decision in the applicant’s favour on that information alone. It should be noted that the applicant did not provide any further material in support of his application to the Tribunal and in Section D of his application, which asked for his reasons for making this application, he stated:
“I don't agree with the decision.”
The Tribunal's letter, dated 30 May 2003, invited the applicant to attend a hearing on a specified time, date and place. The letter informed the applicant that the Tribunal would only change this hearing date for good reason and if he thought he may be unable to attend the hearing, he must contact the Tribunal immediately because, if he did not attend the hearing and the tribunal did not postpone the hearing, it could make a decision on his case without further notice.
The letter enclosed a Response to Hearing form and requested the applicant to complete and return the form to the Tribunal. The letter also invited the applicant to send any new documents or written arguments that he wished the tribunal to consider.
Pursuant to s.425 of the Act, the Tribunal must invite an applicant to appear before it to give evidence and present arguments to the issues arising in relation to the decision under review. The invitation to attend a hearing must be sent in compliance with s.425A of the Act. Section 425A of the Act requires that a notice must be given to an applicant by one of the methods specified in s.441A of the Act and must give a period of notice for the hearing at least of the prescribed period which is 14 days.
Relevantly, s.441A(4) of the Act provides that such a notice may be given to an applicant by despatching the invitation within three working days of the date of the document to the last address for service provided to the Tribunal by the recipient or the applicant in connection with the review.
The first respondent tendered to the Court a copy of the Registered Post records for the Tribunal dated 30 May 2003. These records indicated that the invitation was sent to the applicant on 30 May 2003 at the last address for service provided to the Tribunal by the applicant.
Accordingly, I find that the Tribunal's letter of invitation was sent in accordance with s.441A of the Act.
In those circumstances, s.441C(4) of the Act deems that the letter of invitation is taken to have been received by the applicant seven working days from the date of despatch.
In the circumstances, the date identified by the letter of invitation for the hearing clearly complies with the notice periods required under the legislation.
The Tribunal noted in its decision that it wrote to the applicant on 30 May 2003, advising the applicant that it considered all the material before it relating to his application but was unable to make a favourable decision on that information alone and invited the applicant to come to a hearing to give oral evidence and present arguments at the hearing on 9 July 2003. The Tribunal also noted that the applicant was advised in that letter that, if he did not attend the hearing and a postponement was not granted, the tribunal may make a decision on his case without further notice.
The Tribunal noted that no response was received from the applicant and that the applicant's letter of invitation was not returned.
The Tribunal noted that the applicant did not appear before it on the day and at the time and place at which he was scheduled to appear and purported to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it, pursuant to s.426A of the Act.
Section 426A of the Act provides that, if an applicant is invited under s.425 of the Act to appear before a tribunal and does not appear on the day on which or at the time and place at which he 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.
It is clear from its decision, that the Tribunal had regard to the fact that the applicant had been invited to attend a hearing, had failed to appear at the hearing, that no response had been received from the applicant and that his letter of invitation was not returned.
In the circumstances, the Tribunal properly exercised its discretion under s.426A of the Act to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it.
Where the Tribunal has complied with the statutory regime, then it cannot be jurisdictional error for the Tribunal to proceed to make its decision in the absence of an applicant where the applicant asserts that he did not receive any letter to attend a hearing. The applicant complains that the letter was not a registered letter. There is no statutory requirement that the letter be a registered letter and indeed s.441A of the Act provides various methods of delivery, including despatch by pre-paid post to the applicant.
Accordingly, ground 1 is not made out.
Ground 2 appears to be a complaint that the Tribunal did not consider material that the applicant had provided to the Minister for Immigration for Ministerial intervention on 22 April 2004. However, that material post-dated the Tribunal decision dated 10 July 2003, and handed down on 7 August 2003. Plainly, it cannot be jurisdictional error for the Tribunal to fail to have regard to material that was not before it and indeed was not available for its consideration at the hearing.
Accordingly, ground 2 is not made out.
Ground 3 discloses no error capable of review and is in the nature of a submission relating to another person who was granted a protection visa.
Accordingly, ground 3 is not made out.
The Tribunal noted that it had before it the department's file which included the applicant's protection visa application and the delegate's decision record. The Tribunal noted the claims made by the applicant in his protection visa application that he had attended several activities held by the Falun Gong group, including participating in seeking support and fair treatment of Falun Gong practitioners. The Tribunal noted that the applicant stated he felt endangered so he left China and that, if he went back to China, the government would imprison him because of his association with Falun Gong. The Tribunal noted that the applicant claimed he would not be able to find a job in China and would probably be put in prison.
The Tribunal noted that the Delegate had provided information to the applicant with a request that he comment upon the information relating to the Department of Foreign Affairs and Trade assessment of the situation in relation to Falun Gong and that the applicant had made no comment or provided any further additional information to the Tribunal.
The Tribunal found that the applicant's claims were of such a general nature that the Tribunal could not be satisfied of their truthfulness. The Tribunal concluded that the applicant had provided so little information in support of his claims that it was not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention. Accordingly, the Tribunal affirmed the decision under review.
The reason for the Tribunal's decision is the lack of information provided to it by the applicant to satisfy the Tribunal that the applicant met the criteria required for being a refugee. That conclusion was open to the Tribunal on the material before it and for which it provided reasons.
Section 65 of the Act provides that it is for an applicant to satisfy a decision maker, such as the Tribunal, that an applicant meets the criteria required for being a refugee and that, if a decision maker, such as the Tribunal, is not satisfied that an applicant meets the criteria for being a refugee, then that decision maker must refuse a protection visa.
In the circumstances, the Tribunal, not being satisfied that the applicant met the criteria required to be a refugee, was obliged to refuse the protection visa.
The Tribunal conducted its review and made its decision in accordance with the legislative regime and its decision is not affected by jurisdictional error.
Accordingly, the Tribunal's decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
RECORDED : NOT TRANSCRIBED
The applicant's proceeding before this Court seeking judicial review of the decision of the Tribunal dated 10 July 2003 and handed down on 7 August 2003 is dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 27 February 2007
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