SZDMH v Minister for Immigration - [2004] FMCA 1056

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDMH v MINISTER FOR IMMIGRATION

[2004] FMCA 1056

MIGRATION – Refugee – invitation to Tribunal hearing.

Migration Act 1958

Re Minister for Immigration and Multicultural Affairs Ex parte v Duraijasingham 168 ALR 407

Applicant:

SZDMH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1322 of 2004

Delivered on:

2 November 2004

Delivered at:

Sydney

Hearing date:

2 November 2004

Judgment of:

Nicholls FM

REPRESENTATION

Counsel for the Applicant:

NIL

Solicitors for the Applicant:

NIL

Counsel for the Respondent:

R.M. Henderson

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed
The Applicant pay the Respondent’s costs set in the amount of $3,000, pursuant to Rule 21.02(2)(a) of FMC Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1322 of 2004

SZDMH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application filed in this Court on 6 May 2004 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 March 2004 and handed down on 6 April 2004 affirming the decision of a delegate of the respondent Minister made on 17 April 2003 to refuse a protection visa to the applicant.
The applicant is a national of the People's Republic of China who arrived in Australia on 18 March 2003. He claimed to be a “common Falun Gong practitioner” who had been “kidnapped, incarcerated” and subjected to shock treatment by the authorities. He claimed to have been sentenced to imprisonment and suffered severe difficulties as a result. He also claimed his family paid a bribe to an official and he was thereby able to leave China.

In his application to this Court the applicant claims:
“1. The decision involved an important exercise of the power conferred by the Migration Act and Regulations;
2. There was no other materials for making of the decision.
3. Costs”
The grounds of the application are:
“1. I meet the definition of refugee;
2. I have a well founded fear of being persecuted for reason of membership of a particular social group - Falun Gong;
3. I am a common Falun Gong practitioner and China’s former President Zemin Jiang outlawed the peaceful practice in July 1999. I have gone to the capital city, Beijing, to appeal on numerous occasions and I had being arrested and unlawfully detained a number of times.”
On 13 August 2004 the applicant attended the first Court date in this matter. He was assisted by an interpreter in the Mandarin language. On that date he signed Short Minutes of Order that subsequently became orders of the Court. Order 2 required the applicant to file and serve an amended application giving particulars of each ground of review relied upon by the applicant to be filed and served by

21 September 2004. No such application has been filed, nor has the applicant filed written legal submissions as required by order 5.
The application to this Court does not disclose any clear grounds of review of the Tribunal's decision. At the hearing today, where the applicant appeared with the assistance of a Mandarin interpreter

I explained to the applicant what the role of this Court was and the need [put simply] for him to focus on errors made by the Tribunal.
I further note that when the applicant attended at the first Court date in this matter that he indicated that he wished to access the Courts Legal Advice Scheme, and the applicant indicated to me today at the hearing that he did access the Scheme and did receive a letter of advice in this regard.
The “grounds” of the appeal do not assert any grounds for judicial review. They are assertions that he is a refugee and that he has a well founded fear of persecution because of his Falun Gong involvement. Claim 2 however may have been of some assistance to the applicant. At the hearing before me today I asked the applicant to provide any additional relevant information in support of his application. He was unable to do so. I asked him to expand on claim 2 in his application to this Court. He was unable to provide anything further.
The applicant lodged his application with the Tribunal on 23 May 2003, [see Court Book 43 and in particular CB 47] for a statement of his claims. The Tribunal had before it the respondent Minister's departmental file, which included the protection visa application, the Ministerial delegate's decision record and material referred to in the delegate’s decision. The Tribunal also stated in its decision record at CB 59.6, that it also had before it other material available to it from a range of sources. From a reading of the Tribunal's decision it does not appear that there was any other such material relied on nor is it clear to what it referred.
On 5 November 2003 the Tribunal wrote to the applicant at both his mailing and residential addresses [as supplied by the applicant in his application for review] advising that on the material before it the Tribunal was unable to make a decision in his favour and invited the applicant to an oral hearing to give evidence and present arguments in support of this claims. See CB 51 to 52. It gave a time, date

(5 November 2003) and place for the hearing. The letter put the applicant on notice that he should contact the Tribunal immediately if he was unable to attend, and if he did not attend the hearing the Tribunal could make a decision without further notice.
There is no evidence before me to show that the applicant responded to this invitation nor that he sought any new hearing date. The Tribunal noted in its record of decision at CB 59.9 that the applicant did not respond to the invitation, did not attend the hearing or contact the Tribunal to explain his failure to attend. The Tribunal acting pursuant to section 426A of the Migration Act made its decision on the material before it without further action.
At the hearing before me today the applicant said that he did receive a letter from the Tribunal but at that time he was not able to understand the contents of the letter and said that by the time he was able to obtain an explanation it was “too late”. In response to my asking him as to why, having made an application for review to the Tribunal, on receipt of a letter from the Tribunal he did not at least contact the Tribunal even at any point after he received the letter to seek assistance, the applicant was unable to provide any satisfactory explanation. I note that he was able, on his own behalf, to arrange the lodging of the application for review to the Tribunal. I also note that the time between the date of the letter and the date of the hearing was over five and a half weeks. The applicant was not able to offer any explanation as to why he was unable during this period to obtain assistance in translating the contents of the letter.
Section 422B(1) of the Migration Act provides that Division 4 of Part 7 of the Act, which contains ss.425, 425A and 426A, concerning the requirement to invite the applicant to a hearing, give the notice of the invitation to appear and the options available following a failure of the applicant to appear, is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters that it deals with.
The applicant was given the opportunity to appear and without response, explanation or approach to the Tribunal did not attend. In the circumstances of this case, his statement now that he did not understand the contents of the invitation letter until it was too late is not sufficient to show that the Tribunal denied him procedural fairness. Five weeks was ample time to seek assistance, or at the very least indicate to the Tribunal that he did not understand the contents of the letter. While his application to the Tribunal indicated that he would need an interpreter [CB 44] he was able to arrange the lodging of his application to the Tribunal, including an attached statement written in English. In the absence of any subsequent approach to the Tribunal in the intervening five weeks plus, it is not unreasonable for the Tribunal to proceed in the way that it did. On the material before me both within the statutory context, and even in the context of the common law rules of procedural fairness in the event, or to the extent, that these apply, notwithstanding that the requirements of s.425 of the Act were satisfied, there is no evidence before me to suggest any failure on the part of the Tribunal in all the circumstances to provide procedural fairness.
To the extent that claim 2 in the applicant's application to this Court may be said to be an attempt to argue that the Tribunal did not base its decision on "other materials" there is no evidence before me, nor was the applicant able to provide any detail as to what this material might be. If the applicant is seeking to argue that there should have been other material or the Tribunal should have made inquiries then the applicant neither sought any additional inquiry by the Tribunal, nor did the material before the Tribunal suggest any such need.
If, however, this is a reference to the Tribunal’s reference to “other material” [CB 59.6], then on a plain reading of the Tribunal's decision record its decision did not turn on "other material". The Tribunal was not satisfied, on the material before it, that the applicant is a person to whom Australia owed protection obligations. It found his version of events as not appearing to be credible, that the applicant had provided no supporting evidence in relation to the events claimed by him as having occurred, [that is, the material contained in his very limited statement of claims], that his claims of persecution lacked detail and that little information was provided. [see CB 61]
It found therefore that it was not satisfied that he was a Falun Gong adherent. The Tribunal took an adverse view of the applicant's limited claims. These were findings of fact including a finding on credibility, which is of course the function of the primary decision maker “par excellence”. See the case of Re Minister for Immigration and Multicultural Affairs ex parte v Duraijasingham 168 ALR 407 at (67).

I can find no error let alone jurisdictional error in what the Tribunal did. Therefore this application must be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: 24 January 2005