SZDWZ v Minister for Immigration - [2005] FMCA 594

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDWZ v MINISTER FOR IMMIGRATION

[2005] FMCA 594

MIGRATION – Application to review decision of Refugee Review Tribunal – applicant failed to attend Tribunal hearing – no jurisdictional error.

Migration Act 1958 (Cth), s.426A

Applicant:

SZDWZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1905 of 2004

Judgment of:

Barnes FM

Hearing date:

4 May 2005

Delivered at:

Sydney

Delivered on:

4 May 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr JD Smith

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1905 of 2004

SZDWZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 13 May 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant is a citizen of China who arrived in Australia on

24 September 2003. He lodged an application for a protection visa, which was refused. In his protection visa application the applicant claimed that he would be persecuted upon return to China because of his religious practices and espousal of pro-democratic ideology while studying in Malaysia and New Zealand. He claimed that such activities had been discovered and the Chinese authorities were waiting and would punish him.
In his application for review he took issue with the refusal and stated that he intended to submit a detailed statement of argument with supporting evidence. The applicant did not provide the promised further detailed statement of argument or supporting evidence.
The Tribunal wrote to the applicant by letter of 24 February 2004. That letter was addressed to him at his home address and mailing address, as well as to his authorised recipient. The letter advised the applicant that the Tribunal was unable to make a decision in his favour on the information before it and invited him to attend a hearing on

14 April 2004.
The Tribunal's reasons for decision record that on 5 April 2004 the Tribunal contacted the applicant's adviser and authorised recipient to inquire as to whether the applicant would attend the hearing. The adviser apparently informed the Tribunal that she would contact the applicant and telephone the Tribunal. However on 7 April 2004 the Tribunal again contacted the adviser and asked if the applicant intended attending the hearing. The Tribunal records that the adviser stated that she had left a message with the applicant and he had not responded. She undertook to attempt to contact him. She had no more recent address for the applicant. There was no further response from the adviser or from the applicant.
The applicant did not appear before the Tribunal for the hearing on

14 April 2004 and pursuant to section 426A of the Migration Act 1958 (C’th) the Tribunal made its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal rejected the applicant's claims, noting that the applicant had not provided any details at all of his religious practice except to claim that he had been a long time practitioner of Catholicism in China, Malaysia and New Zealand. It found that the applicant had not provided any details other than vague and generalised assertions of what he had done and what was likely to happen to him and that the Tribunal was unable to establish the facts of the applicant's case.
The Tribunal set out areas in which there was deficient detail in the claims. It concluded that in light of the complete lack of any details of the applicant's claims, it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention.
The applicant sought review of the Tribunal decision by application filed in this court on 21 June 2004. He relies on an amended application filed on 18 April 2005. He claims first that:
The Tribunal misconstrued and misapplied the law concerning its determination. I was unable to attend the hearing due to serious illness. This fact was not taken into consideration when the refusal decision was made by the Member.
However, there is no evidence before the court of the applicant making any effort to notify the Tribunal of any reason for his failure to attend the Tribunal hearing. There was no suggestion in the material before the court that the applicant suffered from any illness, let alone an illness sufficient to render him unable to attend the hearing. He did not provide a response to the hearing invitation, nor did his adviser appear able to contact the applicant prior to the hearing, despite the Tribunal's attempts to ensure that he was able to attend the hearing. His failure to attend the hearing does not establish any error of any kind whatsoever on the part of the Tribunal.
His second claim is that many of his ‘important claims were not considered and assessed carefully when the decision was made’ by the Tribunal. He has not specified which of his claims were not considered and assessed by the Tribunal. He did not file written submissions, and when asked if he wished to make any oral submissions in relation to his claims of jurisdictional error by the Tribunal in the hearing today, he indicated that he had nothing to say apart from requesting an adjournment in order to obtain further evidence. Such adjournment was refused.
Moreover, in relation to the ground that the Tribunal failed to consider important claims, it is not apparent on the material before the court that there was any such failure. The Tribunal addressed the claims made by the applicant in connection with his protection visa application. It is clear that it found such claims to be vague and to lack detail in a number of specified respects and it was for that reason that the Tribunal rejected the applicant's factual claims and hence his application for review.
The applicant then claimed:
The nature of refugee claims involves risky factors when hard evidence was to be transferred from China to Australia. When hard evidence was not yet available, I should be given some opportunities and benefits of doubts and my written and oral claims should be treated as evidence and be given sufficient weight.
This ground does not appear to be entirely relevant to the applicant's circumstances. As he did not choose to attend the Tribunal hearing, he did not provide the Tribunal with any oral evidence. Nor is there anything before the court to indicate that he had evidence which he wished to provide to the Tribunal which he was not able to provide.
It is the case that in the review application which was made on

13 January 2004 he indicated that a document was being translated and would be submitted with supporting evidence and asked the Tribunal to wait for his submissions. There is no evidence of any further contact by him with the Tribunal to indicate any difficulties in relation to the provision of evidence in support of his claims.
The applicant had the assistance of a migration agent who was his nominated authorised recipient. He was told on the application form and also in a subsequent letter from the Tribunal dated 14 January 2004 that he should immediately send any documents, information or other evidence he wanted the Tribunal to consider. He was also, as discussed above, invited to the Tribunal hearing.
In light of these facts and the Tribunal's efforts by contact with the migration agent to ascertain whether the applicant intended to attend the hearing, it was entitled under s.426A of the Migration Act to make its decision without giving the applicant any further opportunity to appear before it. He was given the requisite opportunity. The Tribunal addressed the claims before it. The weight to be given to particular items of evidence is a matter for the Tribunal. In these circumstances, no jurisdictional error is established in the manner contended.
The applicant also appears to take issue with the manner in which the respondent's solicitor notified him of proceedings in this court, and that his medical certificates were not taken into account. However, I note in that respect that while initially his application was dismissed for non-appearance by a Registrar pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules, the application was reinstated pursuant to Rule 16.05. I made orders on 15 December 2004 setting aside the Registrar's orders dismissing his application. He has had the opportunity thereafter to file an amended application, which opportunity he took; written submissions, which he did not file; and to attend the hearing today.
Finally, he claims to need time to engage a ‘proper solicitor’ and to obtain legal advice. Such matters do not reveal any jurisdictional error on the part of the Tribunal. Nor, given the time that has elapsed, were they circumstances that warranted any delay or adjournment in these proceedings.
In conclusion then, the applicant has not established any jurisdictional error in the decision or procedures of the Tribunal. Accordingly, the application must be dismissed. I will hear submission in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. It is appropriate that he meets the respondent's costs. In the circumstances of this case, I consider that the sum of $3,500 is appropriate.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 10 May 2005