SZFEK v Minister for Immigration - [2005] FMCA 893

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFEK v MINISTER FOR IMMIGRATION

[2005] FMCA 893

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China – where applicant did not attend the RRT hearing.

Judiciary Act 1903 (Cth) s. 39B
Migration Act 1958 (Cth) s. 426A

Applicant:

SZFEK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 3563 of 2004

Delivered on:

22 June 2005

Delivered at:

Sydney

Hearing date:

22 June 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr Chami

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the Application is dismissed.
That the Applicant is to pay the Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3563 of 2004

SZFEK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for a review of the decision of the Refugee Review Tribunal made on 13 October 2004. The Tribunal handed down its decision on 4 November 2004.
The Tribunal decided to affirm a decision by a delegate of the Minister not to grant a protection visa for the Applicant.
The Applicant is a citizen of the People's Republic of China. He arrived in Australia lawfully on 15 May 2004. On 10 June 2004, he lodged an application for a protection class XA visa.
On 16 June a delegate of the Minister refused his application. On

16 July 2004 the Applicant applied for a review of that decision in the Refugee Review Tribunal.
The Applicant claims a well-founded fear of persecution based on his practice of Falun Gong. He says that he was taken into custody by the police in the year 2000. He says that he was on his way to Beijing to take part in the demonstration.
The Applicant said that he was arrested and taken to the Heilongjiang, number 4, Forced Labour Camp. He said that he was often punished by prison guards because he refused to give up the practice of Falun Gong.
He said he was released from the Forced Labour Camp in January 2004. In May of that year he made his way to Australia.
He says that he fears that if he were still in China he would face more severe punishment from the government.
The Refugee Review Tribunal wrote to the Applicant on 16 September 2004. The Tribunal sent one copy of the letter to the Applicant's address for correspondence, 160/422 Pitt Street, Sydney. The Tribunal sent a copy of that letter to the Applicant's home address in Cabramatta. I note that the Applicant still lives at that address.
The Applicant at first said that he did not receive the letter. He went on to explain that he had received the letter but could not read English. Eventually he consulted a friend who was able to translate the letter for him. By that time the hearing date had passed.
The Applicant did not attend the hearing of the Refugee Review Tribunal. The Applicant had not contacted the Tribunal beforehand to say that he would be unable to attend and thereby seek an adjournment.
The Applicant agreed that he was aware that the letter had come from the government, even though he could not read it. He says that he was very busy at the time, but also tried to arrange for a friend to translate the letter for him. As he told the Court, by the time the friend translated the letter, the hearing date had passed.
I note that the letter was dated 16 September 2004, and referred to a hearing on 13 October 2004. It appears that the Applicant must have had the letter in his possession for about four weeks, at least, before he got it translated.
Whilst the Applicant could not read the letter, it is clear that it came from the Australian government. The letter was on Refugee Review Tribunal letterhead, bearing the Australian Coat of Arms. It must have been obvious that the letter came from the government, and it seems extraordinary that the Applicant waited so long to have the letter translated.
What happened is that the Applicant did not attend the hearing of the Refugee Review Tribunal. If he had attended, he would have had the opportunity to give evidence and explain his case. The hearing was the Applicant's chance to put his case to the Tribunal, but he missed that chance.
The Refugee Review Tribunal has the power under s.426A of the Migration Act to proceed to make a decision in these circumstances without adjourning the matter to another day so that the Applicant can attend.
In my view, as the Tribunal had received no indication from the Applicant about his intention to attend the hearing. The Tribunal was justified in acting in the way that it did.
The material before the Tribunal was very sparse indeed. It consisted of little more than the Applicant's statement.
As the Tribunal had already formed the view that the material before it was insufficient to allow the Tribunal to make a decision in the Applicant's favour. It is hardly surprising that the Tribunal was not able to make a decision in the applicant's favour after he failed to attend the Tribunal hearing.
The Federal Magistrates Court has said on many occasions that applicants who do not attend their hearing before the Refugee Review Tribunal do themselves a major disservice. They make it very difficult to obtain a successful outcome for their application.
The application for review filed in this Court does not set out any claim of any error.
The Applicant claims that procedures required by the migration regulations to be observed in connection with the making of the Refugee Review Tribunal decision were not observed.
The Applicant has provided no particulars in support of that allegation. The Applicant was unable to answer the question put to him by the Court as to what procedures he said had not been observed. The Applicant did explain that his application had been prepared for him by a friend, because of his limited English.
The Applicant also sought an order that the Tribunal hear his application again, but that a different Tribunal member should preside.
Bearing in mind the fact that he had not attended the original hearing, I asked the Applicant why he sought an order that the same Tribunal member should not hear the application again.
The Applicant gave the reason that the Tribunal member had refused his application. He said that he needed to find someone else who presumably would grant his application.
The Applicant told the Court that he hoped to find a member of the Tribunal who could deal with his application, according to Australian law.
I have read the Tribunal decision thoroughly. There is no evidence on the face of the decision to indicate that the Tribunal member did not conduct the hearing according to law.
The fact that an applicant is unsuccessful does not constitute a ground for finding that the Tribunal made an error.
The reality is that the application has no merit whatsoever. There is no reviewable error.
The application is dismissed.
The Applicant has been unsuccessful and the lawyers for the Respondent Minister seek an order for costs. This is a matter where the Court would normally make an order for costs in favour of the successful party.
The Applicant said that he had no money when he came to Australia, because the Chinese government had frozen his assets. He has told the Court today that if he was able to work to earn the money, he will be happy to pay reasonable legal costs.
In my view I should make an order that the Applicant pay the Respondent's costs. It is the practice of the Federal Magistrates Court wherever possible to fix costs in a lump sum at the time of making the order.
The Respondent seeks an order of a lump sum within the range allowed by the rules. I note that this is a matter where it was not necessary to brief a barrister, and I will take that into account.
In my view, the sum of $5,000.00 is an appropriate figure.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 28 June 2005