SZFEE v Minister for Immigration
[2005] FMCA 1267
•12 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFEE v MINISTER FOR IMMIGRATION | [2005] FMCA 1267 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of Mongolia – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.475A Federal Magistrates Court Rules 2001 |
| NAST & NASU v Minister for Immigration [2004] FCA 86 SZANR v Minister for Immigration [2004] FCA 1075 at [7] |
| Applicant: | SZFEE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3553 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 August 2005 |
| Date of Last Submission: | 12 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 August 2005 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondent: | Ms Alex Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3553 of 2004
| SZFEE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was made on 15 October 2004 and handed down on 4 November 2004. The decision of the Tribunal was to affirm the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The relevant facts are that the applicant arrived in Australia from his native Mongolia on 19 February 2004. On 5 April 2004 he applied for a protection visa. He claimed that he left Mongolia because of political pressure and violence directed towards himself and his family involving physical and psychological torture, massive intimidation and destruction of property. He said that he feared that he would be arrested, denied a fair trial and imprisoned if he were to return to Mongolia. He said that he feared that this harm would come from the Mongolian government and an intelligence agent. He said in his application that this would happen because he was against the Mongolian people’s revolutionary party and the government.
The applicant does not speak or write English but his brother,
who apparently resides in Australia, helped him to prepare his application. On 13 May 2004 a delegate of the Minister refused to grant him a protection visa. On 9 June 2004 he made an application to the Refugee Review Tribunal for review of that decision.
In his application for review he set out in some two and a half pages why he had been wrongly treated in Mongolia and why he feared he would be persecuted if he had to return there. He gave his then home address and did not provide any other address for correspondence.
The applicant says that he consulted a migration agent. He was unable to provide any information about the migration agent except that he said that the agent was a Bangladeshi man. He said that the agent appeared to be very busy and that there was a long queue of people waiting to see him.
The applicant forwarded his application, or it was forwarded on his behalf, to the Refugee Review Tribunal who received that application on 9 June. The Refugee Review Tribunal sent the applicant a letter that same day acknowledging receipt of that application. About a week later the applicant changed his address. As required, he provided details of his change of address in writing to the Refugee Review Tribunal. The Tribunal received that document on 22 June 2004.
It is clear that the Refugee Review Tribunal altered its records to show the applicant’s new address because the Tribunal used that new address, which is the applicant’s current address, in its correspondence with the applicant from then on.
On 9 September 2004 the Tribunal wrote to the applicant at his current address inviting him to attend a hearing of the Tribunal on Thursday, 14 October 2004. The Tribunal received no reply to that letter of invitation. The Tribunal, as can be seen at page 61 of the Court Book, completed its checklist noting that the letter inviting the applicant to the hearing had not been returned unclaimed. The Tribunal noted that the applicant had provided no details of a migration advisor and so the Tribunal was not able to contact any advisor in an effort to get in touch with the applicant. The applicant had not provided any telephone number when he provided his change of address details.
It is not surprising that the applicant did not attend the hearing of the Tribunal on 14 October. At page 71 of the Court Book in the Tribunal’s decision the Tribunal member noted that the applicant had not attended and the Tribunal had not been able to contact him further although the letter of invitation to the hearing had not been returned unclaimed. In my view the Tribunal did not make an error in considering those circumstances and exercising its power under s. 426A of the Migration Act to make its decision without taking any further action to enable the applicant to appear.
I note from pages 71 and 72 of the Court Book that the Tribunal member considered the evidence contained in the applicant’s original application and a handwritten statement dated 21 April 2004 as well as the decision of the delegate. The Tribunal considered the statement made by the applicant in s (d) of his application for review. The Tribunal had no other information that it could consider. The Tribunal had no other way of contacting the applicant. In the circumstances it is hardly surprising that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the convention if he were to return to Mongolia.
Consequently the Tribunal affirmed the decision of the delegate not to grant a protection visa to the applicant. The applicant sought a review of that decision from this Court by means of an application filed on 6 December 2004. He filed an amended application on 23 February 2005. Neither document contains any ground for review.
The applicant attended Court today and described how he had sought advice from this Bangladeshi man who is alleged to be a migration agent. He did not have any details of this man’s name or address with him. I note that the alleged migration agent did not include his name or address on the applicant’s application for review to the Refugee Review Tribunal. If the applicant’s submissions are anything to go by it is hardly surprising that the alleged agent did not attach his name to any of these documents. The applicant told me that he had paid $700 for the services of this man. He told me that the alleged migration agent advised him not to attend the hearing of the Refugee Review Tribunal. He said that the man did not give him any reasons for not attending the hearing but took a photocopy of all of his documents and said that he would send them to the Tribunal.
There is no evidence that any further material was sent to the Tribunal other than the material to which I have referred. The agent apparently assisted the applicant in preparing his original application and his amended application. Apparently all of this service, and I use the term loosely, was included in the fee of $700. The grim reality is that neither the original application or the amended application represents any value for $700 let alone the claimed advice given to the applicant that it was inappropriate to attend the hearing of the Tribunal. Rather than pay $700 for these documents and this alleged advice I commented rather acidly during the hearing that if I were paying for this alleged agent’s services I would expect change from a $5 note.
I would make it clear that this Court has said on numerous occasions that failure by an applicant to attend a hearing of the Refugee Review Tribunal is a most serious error. It is hard to imagine how any person claiming to be a migration agent could seriously give this advice to an applicant. It almost invariably leads to the situation where the application to the Refugee Review Tribunal is unsuccessful.
The solicitor appearing for the respondent Minister, Ms Alex, has drawn my attention to two decisions of the Federal Court relating to the duty of the Refugee Review Tribunal in cases where the applicant does not attend the hearing. Those decisions which are now quite well known are the decisions of Alsop J in NAST and NASU v The Minister for Immigration [2004] FCA 86 and the decision of Wilcox J in
SZANR v The Minister for Immigration[2004] FCA 1075 at [7].
It is quite clear that the Refugee Review Tribunal in this case did not dismiss the application for review on the basis that the applicant did not attend. The Tribunal did consider all of the documentary material that had been provided by the applicant. Not surprisingly the Tribunal was not persuaded by the material to accept the applicant’s claim to have a well-founded fear of persecution if he had to return to Mongolia.
I should make it clear that the Refugee Review Tribunal sends out standard form letters to applicants which set out the importance of attending a hearing of the Tribunal if a hearing is to be held. The letter to the applicant dated 9 June 2004, a copy of which appears at page 57 of the Court Book, informed the applicant that the Tribunal would look at the information relevant to the applicant’s case. The letter goes on to say:
After looking at this information the member may either: (1) make a decision in your favour or (2) invite you to attend a hearing of the Tribunal.
The letter goes on to tell an applicant why a hearing is so important. The letter says:
A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence can include: (1) what you tell the member at the hearing; (2) information or documents you give the Tribunal; (3) information or documents you ask others to give the Tribunal.
Where the Tribunal has considered the material before it but is unable to make a decision in an applicant’s favour on that information the Tribunal invites the applicant to attend a hearing. A copy of the letter to the applicant dated 9 September 2004 appears at page 59 of the Court Book. In that letter the Tribunal told the applicant that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.
The Tribunal goes on to say in its letter:
We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.
It is quite clear that those two letters from the Tribunal set out why a Tribunal hearing is so important. A person who does not understand English certainly needs to arrange someone to translate the documents for him or her. If those letters are correctly translated it would be patently obvious that attending a hearing of the Refugee Review Tribunal is extremely important to the applicant’s case.
It is hard to comprehend how any person purporting to act as a migration agent could advise an applicant not to attend a hearing in the face of that advice. It is equally hard to comprehend how an applicant on being made aware of the contents of those two letters from the Refugee Review Tribunal could accept advice from a purported migration agent which is totally to the contrary to that set out in the letters from the Refugee Review Tribunal.
The original application for review brought on 6 December 2004 and the amended application filed on 23 February 2005 each contain the same tired old proforma collection of spurious and irrelevant grounds for review that appear to be circulating in the community. The original application filed on 6 December 2004 contains nine statements that Federal Magistrates have seen so often over the last few years which normally do not relate to anything in the applicants case. These spurious grounds include the following:
The Tribunal made his decision in bad faith. The Tribunal deprived me of the natural justice. The Tribunal denied the evidentiary proof of my claim. The Tribunal’s decision did not reflect the material facts of my claim. The Tribunal has given a decision which was preset in the back of it’s [sic] mind.
I note that the list always includes the misplaced apostrophe. In this case they are meaningless and irrelevant as they are in most of the applications where they are used. The amended application contains examples of a later set of particulars which are equally irrelevant and come with their own spelling errors. These grounds include this meaningless form of words:
That the RRT decision was effected [sic] to take into account a relevant consideration when it assessed weather [sic] the delegate of the Minister raised reasonable grounds for not granting a protection visa.
The other grounds include a standard challenge to the rational or logical foundation for the Tribunal’s belief, the standard claim that the Tribunal did not observe the Migration Act and the standard promise to provide more details in any written submission which never appears.
It must be obvious by now that these forms of words are not only useless but in many cases are without meaning at all and certainly do not set out any ground for judicial review. In the applicant’s case there was also added this statement:
I did not got [sic] an opportunity to attend the Tribunal hearing because I did not properly informed by the Tribunal hearing [sic]. The hearing invitation letter did not serve properly to me. [sic]
Unfortunately that is just wrong. It is quite clear that the applicant advised the Refugee Review Tribunal of his change of address and the Refugee Review Tribunal sent its letter to the applicant at that new address. The letter was not returned unclaimed. The Tribunal had no other address for the applicant, nor did it have a telephone number.
I am satisfied that the applicant was properly informed of the hearing but based on the erroneous advice that he says he received from this alleged migration agent, he did not attend the hearing.
What emerges rather heartbreakingly from the applicant’s submissions today is that after he told the Court that he had no idea what was in his amended application for review because he signed a blank piece of paper which was later filled in by the alleged migration agent. I asked him to tell the Court why he felt that the Refugee Review Tribunal had made an error. He then set out to challenge some of the factual findings made by the Tribunal which were based on the material before the Tribunal. They were findings which, in my view, were properly open to the Tribunal member based on the written material. What is so heartbreaking is that the applicant had explanations for both of those matters which, had he attended the Tribunal hearing, he could have given evidence about.
He challenged a statement on page 71 of the Court Book where the Tribunal member said that the applicant had travelled to China in late December 2003 for an interview with the Australian authorities about his visa application. The applicant said that he did not leave Mongolia at all to travel to China but forwarded his passport by post to the Australian embassy in Beijing. He could have given evidence about this circumstance to the Tribunal member had he attended the hearing.
The applicant also challenged a statement by the Tribunal member further on page 71 of the Court Book that he had written N-A in response to questions on the protection visa forms about convictions, charges and investigations and specifically denied that he had ever been charged or convicted of any offence. He said to the Court that he had done so because the actions by the police were unlawful and committed for political reasons and not for a breach of the criminal law at all.
In each case, had the applicant attended the hearing of the Tribunal he could have given evidence about those facts. That evidence may or may not have persuaded the Tribunal member that his application should be successful. Unfortunately by choosing not to attend the hearing the applicant has missed out on that opportunity to provide that evidence.
It is well known that on a judicial review the Court does not decide the facts of an applicant’s case. The Court does not conduct a merits review. It is the task of the Tribunal to make findings of fact.
When the applicant did not attend the Tribunal hearing he gave away the opportunity to give evidence to the Tribunal which may have persuaded the Tribunal to make different findings of fact.
There is no reviewable error. If the applicant did, in fact, pay $700.00 to his alleged migration agent for the advice that he has received he should ask for his money back.
The amount of costs sought is well within the scale provided by the Federal Magistrates Court rules. Costs follow the event and there is no reason why I should not make an order for costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 19 August 2005
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