SZEYS v Minister for Immigration
[2005] FMCA 1553
•24 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEYS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1553 |
| MIGRATION – Refugee – failure to attend the Tribunal hearing – no reviewable error – privative clause decision. |
| Migration Act 1958, ss.477(1A), 424A, 424C(4), 441A, 441A(4), 430B(2), 424C(2), 425, 425(2)(c), 426 |
| VNAA & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Ngu v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Abebe v Commonwealth (1999) 197 CLR 510 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZEYS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2315 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 24 October 2005 |
| Date of Last Submission: | 6 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. G. Johnson |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Pursuant to section 91X of the Migration Act 1958 there be no publication of the applicant’s name.
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant pay the first respondent’s costs set in the fixed amount of $4500, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2315 of 2004
| SZEYS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore/Revised from Transcript)
This is an application filed in this Court on 22 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 September 2003 and handed down on 9 October 2003 to affirm the decision of a delegate of the respondent Minister made on a 25 November 2002 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant is a national the People's Republic of China who came to Australia on 22 October 2002 and applied for a protection visa on
14 November 2002. His claims are set out in his application for a protection visa (Court Book (“CB”) 1 to CB 24) and in particular in an attached letter dated 13 November 2002 copied at CB 25 to CB 26. The claims are also contained in the application for review to the Tribunal (CB 40 to CB 43), but most particularly in an attached statement reproduced at CB 44 to CB 46. The applicant's claims to fear persecution in China are based on his claimed membership of the Falun Gong organisation, and his claim that he is active in the practice of Falun Gong.The Tribunal:
1)Wrote to the applicant on 13 December 2002 and advised the applicant that he had used an out of date application form and provided the applicant with the current form and asked the applicant to complete and return that form. This letter was sent to the applicant's only address provided on the first form as both his home and mailing address. The applicant provided a completed new form to the Tribunal which is reproduced at CB 48 to CB 51. Importantly, the Tribunal's letter of 13 December 2002 emphasised that the applicant should tell the Tribunal immediately if there was any change in his address and cautioned that a change in contact details without informing the Tribunal of the new address might result in a decision being made in the applicant's absence. In particular the letter of 13 December 2002, which clearly the applicant received (he confirmed at the hearing before me that he had received this letter) and dealt with by responding with the completed appropriate form, clearly provided information that if the applicant were to change address or telephone number and did not advise the Tribunal then the applicant may not receive an invitation to a hearing, or other important information, and confirmed that the case may be decided without further notice. The applicant provided the same address as previously provided, as both his home address and his mailing address (CB 48). This was the same address that had been provided to the first respondent’s Department in the application for a protection visa (CB 13).
2)On 24 December 2002 the Tribunal wrote to the applicant again, providing general information about the processing of his application and making further reference to the possibility of an invitation to a hearing and the importance of providing any change of address or contact detail to the Tribunal. Further, that a failure to do so may result in the applicant not receiving an invitation to a hearing or other important information and that his case may be decided without further notice. There is nothing before me to show that this letter was returned as undeliverable to the Tribunal (CB 52 to CB 53).
3)On 21 August 2003 the Tribunal wrote to the applicant (CB 54), again at the only address provided by the applicant in his application form, advising the applicant that the decision by the Minister’s delegate (CB 31 to CB 39) made reference to the fact that the applicant's statement was identical or virtually identical to two other statements lodged with the first respondent's Department and that this gave rise to serious concerns about the credibility of the applicant’s submission. Further, that the same issue now arose in relation to the statement accompanying the applicant’s review application which was virtually identical to two others lodged with the Tribunal. The Tribunal advised the applicant that this information was relevant to his application because it gave rise to serious concerns as to the credibility of his claims. The Tribunal invited comment from the applicant and indicated that the comments should be received by 15 September 2003. Again, the letter contained a warning that the Tribunal may make a decision in his case without further notice if the comments were not received by the due date. At CB 55 the copy of the relevant envelope shows that this letter was returned to the Tribunal, as the applicant had left the address provided.
4)On the same date the Tribunal wrote to the applicant, again at the only address provided to it, and invited the applicant to a hearing of the Tribunal on the basis that the Tribunal had considered the material before it but was unable to make a decision in his favour on this information alone. The letter noted that the applicant should contact the Tribunal if he was unable to attend the hearing, and 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 (CB 56 to CB 57). At CB 58 there is a copy of an envelope which again shows that the applicant had left the address and the envelope was returned to the Tribunal, and received on 27 August 2003.
5)At CB 59 there is a copy of a case note prepared by an officer of the Tribunal stating that the letters sent to the applicant had been returned to the Tribunal unclaimed, and records that the Tribunal officer attempted to telephone the applicant on the mobile phone number provided in his application to the Tribunal, but that “this number belongs to someone else”. The Tribunal's decision record is reproduced at CB 67 to CB 73. At CB 70 the Tribunal recounts the events set out above, and notes that it was unable to obtain a more recent address for the applicant from the respondent’s Department's records and that as the Tribunal had no other contact name or address because the applicant had no known adviser or person authorised to receive correspondence, and was unable to otherwise contact the applicant, decided to proceed with making decision without taking further action to obtain the applicant’s views on the information as provided to the applicant by it earlier letter (CB 71.3). The Tribunal looked at the applicant's claims as presented in his protection visa application. These claims were essentially repeated in his application for review (CB 71).
6)In its “Findings and Reasons” the Tribunal noted that generally where broad claims are made, the Tribunal hearing is the opportunity for the Tribunal to gather details about the claims from the applicant and that despite ample opportunity the applicant has not provided any further information in support of his claim. A number of relevant questions were therefore left unanswered (CB 72.5). The Tribunal found that it could not be satisfied as to the credibility of any of the applicant's claims (CB 72.8). It based this finding on the fact that the applicant's statement in support of his claims was identical, except for relevant names, to that of two other applicant's both before the first respondent's Department and before the Tribunal and, combined with an absence of a reply to the letter (which it described as the s.424A notice) drawing his attention to this situation, and in the absence of an opportunity to discuss his claims with him, led to it not being satisfied as to the credibility of any of his claims. Accordingly the Tribunal found that the applicant did not have a well founded fear of persecution for a Convention reason and affirmed the decision under review.
The applicant's originating application to this Court complains that the Tribunal did not give “proper attention” to the applicant's fear of being persecuted for the reason of his religion and/or membership of a particular social group. He puts forward as the grounds of the review:
“1)The applicant was not notified of the decision on his application and did not lodge the appeal within the time limit allowed.
2)The applicant wishes to appeal on the decision on his application made by RRT in the Federal Magistrates Court of Australia.”
No particulars whatsoever are provided and indeed other than the claim that the Tribunal did not give proper attention to his claims, no grounds are stated in the application. The applicant did not appear at the first Court date in this matter on 22 October 2004. He did subsequently appear in person at the adjourned first Court date on 5 November 2004, and with the assistance of a Mandarin interpreter signed short minutes of order, which subsequently became, by consent, orders of the Court. Relevantly, the applicant was required to file and serve an amended application giving complete particulars of each ground of review relied upon by 17 January 2005 and to file and serve any affidavit containing additional evidence, including any transcript of the Tribunal hearing, by the same date. I note that no such amended application or any further evidence has been filed by the applicant. The respondent has also filed a Notice of Objection to Competency on 12 August 2004 objecting to the jurisdiction of this Court to try this application on the basis of that s.477(1A) of the Migration Act 1958 (“the Act”) provides an application for review must be lodged within 28 days of notification of the decision and the supporting affidavit of Stella Koya, a solicitor in the employ of the respondent’s solicitors, sworn on 12 August 2004, asserts that the Tribunal decision was handed down on 9 October 2003 and the applicant would have received notification on that date or shortly there after. I note and adopt paragraph 8 of the respondent’s submissions:
“The application to the Federal Magistrates Court was not made until 22 July 2004- well outside the period allowed by section 477 of the Act. A notice of objection to competency has been filed and served on 12 August 2004. The applicant’s application for judicial review alleges that he was not notified of the decision. Section 430B(2) required the notice to be given to the applicant by one of the methods specified in section 441A. Section 441A(4) and 441C(4) relevantly have the effect that the applicant is deemed to have received the decision 7 days after the date of the Tribunal’s letter dated 9 October 2003 (CB 63-73) whether or not he actually received it or became aware of its contents within that period. See VNAA v MIMIA (2004) 136 FCR 407 at [16]; NADK of 2002 v MIMIA [2003] FCAFC 184 at [14]-[16]; MIMIA v VSAF of 2003 [2005] FCAFC 73 at [12]. (By combination of section 424A and 425A, respectively, with sections 441A(4) and 441C(4), the applicant is similarly deemed to have received the two letters dated 21 August 2003.”
I also note the case of Ngu v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21, a Full Federal Court decision, upholding the judgment at first instance of Nicholson J, where it was stated that an appeal against a privative clause decision, lodged outside the time limits in s.477 of the Act, is incompetent if a ground of review cannot be made out.
The applicant at the hearing before me stated, by way of letter translated by the interpreter, that:
1)He had adapted to life in Australia and that he “liked the life here”.
2)In China he was not allowed to have beliefs other than the Communist Party and that there was no recognition of human rights in China.
3)Given his personal circumstances in China he wanted the Court to consider his claims. These claims went to the merits of the case.
The applicant complains in his application that he was not notified of the decision on his application and did not lodged his “appeal” to this Court within the time allowed and that he wished to appeal this decision made by the Tribunal in this Court. Given the effect of the High Court's finding in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the Court is required to ascertain whether any ground of review arises from the applicant's case and in that sense the applicant has achieved his request that the Tribunal decision be reviewed by the Court. The only complaint put forward by the applicant in relation to the Tribunal decision is that the Tribunal did not give proper attention to the facts of his case, and the applicant's fear of being persecuted which was based on his religion or membership of a particular social group. On the material before me this complaint fails. The Tribunal clearly looked at all of the applicant's claims as presented by the applicant, attempted to put the applicant on notice that it had concerns about the applicant's credibility, and sought the applicant's comments. In addition, it invited the applicant to a hearing before the Tribunal on the basis that it was not in a position to make a favourable decision on what the applicant had put before it. The applicant was on clear notice as to the critical requirement to notify the Tribunal of any change of address or contact detail. The applicant took no action and remains without any explanation, even now, as to his failure to notify the Tribunal as to where he could be contacted. At the hearing before me the applicant claimed that he was represented by a lawyer before the Tribunal and without any specificity seemed to imply that it was the lawyer’s fault that he did not receive the Tribunal’s letters. I understood his to say that the address provided in the application was probably the lawyers address. The applicant could provide me with no explanation however, when I pointed out to him that his application to the Tribunal (the first form at CB 41) contained a question: “11. Do you have an adviser you authorise to act for you in relation to this application (for example a lawyer or a migration agent)?” To which the applicant answered: “No”. The applicant also indicated in his second application that he did not appoint any authorised recipient (CB 49) to receive correspondence on his behalf or to act on his behalf. The one address provided by the applicant was his “Home Address”. This was the same address that the applicant provided to the Minister’s Department in his application for a protection visa (CB 13) as: “13. Your current residential address in Australia. This must be the address where you are living”.
In all the circumstances, the Tribunal took all reasonable steps available to it to contact the applicant at the only address provided by the applicant, on a mobile phone number provided by the applicant, and further conducted a search of the first respondent's Departmental files for any other address. In the absence of anything further, I cannot see any error on the part of the Tribunal in all the circumstances, proceeding to make a decision on what was before it. On what was before it the Tribunal, as it had recorded in its s.424A letter, it had credibility concerns in relation to the applicant's claims. The Tribunal clearly complied with all the relevant statutory requirements in writing to the applicant pursuant to s.424A of the Act, and inviting the applicant to a hearing before the Tribunal pursuant to s.425 of the Act and in compliance with s.425A. The Tribunal was entitled to proceed to make a decision on what was before it pursuant to s.424C(2), s.425(2)(c) and s.425(3) in all the circumstances (and although not stated, pursuant to s.426A). This complaint cannot be made out.
Nor can I see any other jurisdictional error in the material before me. The applicant was on clear notice as to the importance of maintaining his contact details with the Tribunal and of the consequences if he failed to do so. There is clear material before me to show (and the applicant subsequently confirmed at the hearing before me) that the applicant did receive the Tribunal's letter of 13 December 2002, one of a series of opportunities where the Tribunal emphasised the importance of his notifying of any change of address. It is clear the applicant did receive this letter as he subsequently, in compliance with this letter, provided the Tribunal with another application form. I note the respondent’s submissions at paragraph 12:
“The applicant further alleges that the Tribunal “did not give proper attention to the fact that his fear of persecution is well-founded”. This is nothing more than a plea to engage in merits review. It was for the applicant to put forward whatever evidence or other material he wished to have taken into account and it was for the Tribunal to decide whether the claim was made out: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437, especially at [57] per Gummow and Heydon JJ (Gleeson CJ relevantly agreeing at [1]); Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ. If the Tribunal was not satisfied that the criteria for a protection visa were met, it could not grant the visa. As was explained by a Full Court in SJSB v MIMIA [2004] FCAFC 225, section 65(1) of the Act:
‘…does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of the visa in question have been satisfied’.”
Nor can I see any other ground arising from the circumstances put before me to show that there is jurisdictional error in the Tribunal’s decision. This is a privative clause decision and on that basis the respondent's Notice of Objection to Competency is upheld the application is dismissed.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 27 October 2005
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