SZFHU v Minister for Immigration

Case •

[2005] FMCA 1489

•

4 October 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFHU v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1489
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of China claiming well-founded fear of persecution because of practice of Falun Gong – where applicant did not attend the RRT hearing – bias alleged.

Migration Act 1958 (Cth), ss.422B, 424A, 426A.
Judiciary Act 1903 (Cth), s.39B

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Applicant: SZFHU
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 3725 of 2004
Delivered on: 4 October 2005
Delivered at: Sydney
Hearing date: 4 October 2005
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Potts
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. Leave to join Refugee Review Tribunal as a Second Respondent in these proceedings.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00. I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3725 of 2004

SZFHU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 13th October 2004, after a hearing scheduled for 11th October. The Refugee Review Tribunal handed down its decision on 2nd November 2004.

  2. The decision of the Tribunal was to affirm the decision of the delegate of the Minister, not to grant a protection visa to the Applicant. 

  3. The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 16th May and applied for a protection (Class XA) visa on 10th June 2004. That application was refused, and he applied to the Refugee Review Tribunal for a review of that decision on 14th July 2004.

  4. The Refugee Review Tribunal wrote to the Applicant on 9th September 2004 inviting him to attend the hearing scheduled for 11th October. 

  5. The Applicant did not attend the hearing, so the Tribunal exercised its power under section 426A of the Migration Act to make a decision without taking any further action to enable the Applicant to appear.

  6. The Applicant seeks a review of that decision from this Court. He admits that he did not attend the Tribunal hearing. He told the Court that he did not receive the card saying that there was a registered mail item for him until the day before the Tribunal hearing.  He said that he went and got the registered letter on the same day as he received the card from the post office. That letter was from the Tribunal, telling him about the hearing date on 10th October.

  7. The Applicant said he was not able to read that letter that day, so he sought advice from someone else who could read the letter for him.  The Applicant does not read or write English. 

  8. He said that he was not able to obtain the services of a friend who spoke English until the following day.  By that stage he said it was too late to attend the hearing.  He did not attempt to contact the Tribunal to advise him of his problem.

  9. I note that the hearing was scheduled for a Monday at 3:00pm, so if the Applicant had received a card in his mailbox advising him of a registered letter, he must have received it on the Friday, as there are no mail deliveries over the weekend.

  10. Whilst the Applicant had no more working days than he suggests, he did in fact have an entire weekend to make those inquiries. 

  11. The Court Book at page 66 contains a copy of the letter inviting the Applicant to attend the hearing on 11thOctober.  The letter is dated 9th September 2004.

  12. On behalf of the Respondents, Mr Potts of counsel has tendered a copy of the Tribunal's registered post records for that day. That record shows that the letter addressed to the Applicant at the address that appears on both his application to this Court and his amended application was posted on 9th September 2004.

  13. Mr Potts of counsel has pointed out that by operation of s.441C of the Migration Act, the Applicant is deemed to have received the letter, certainly well before the time when he claims to have received it.

  14. The Tribunal is required to give at least 14 days notice of the hearing.

  15. The Applicant's Amended Application seeks a writ of certiorari to quash the RRT decision, and a writ of mandamus to compel the RRT to consider the application according to law. Quite clearly the application has been brought under the provisions of s.39B of the Judiciary Act.

  16. The Applicant told the Court that as he does not read or write English, he obtained help from another person to prepare his Amended Application.  He provides one ground for the application complete with eight sets of particulars. 

  17. The ground is a standard ground that appears often on applications before the Court.  It says as follows:

    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.

  18. As I mentioned, the Court sees this particular ground quite frequently on applications.  It appears to be a ground circulating in the community because it appears frequently, complete with spelling errors in the words "effected" and "weather".

  19. The Applicant did not know what it meant, and in my view it is meaningless. 

  20. I turn to the eight particulars that the Applicant has provided in his Amended Application.  First, the Applicant complains that the Tribunal was biased, and did not make its decision in a fair way.  I asked the Applicant about his claim of bias and he said that that was what he felt.   He is relying entirely on the decision itself to substantiate his claim of bias.

  21. The question of an allegation of bias is a serious matter, and has been considered by the Full Court of the Federal Court in a number of appeal decisions.  The Full Court set out a number of propositions relating to bias and allegations of a lack of good faith in its decision of SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361. That decision, of course, is binding on the Federal Magistrates Court.

  22. The Full Court makes it clear that an allegation of bias is a serious matter, as it involves an allegation of a personal failing on the part of the decision-maker.  It must be strictly particularised and proved. It will be a rare case that bias will be obvious from the decision itself. 

  23. The Applicant has provided no particulars of any bias, apart from saying that that was what he felt.  He relies entirely on the substance of the decision itself.  It is hard for him to rely on anything else, as he was not, of course, present at the hearing. 

  24. I find that there is no evidence of bias whatsoever. 

  25. The Applicant's second particular is that the Tribunal failed to provide him with adequate particulars of the independent information. Mr Potts of counsel for the Respondent Minister submits that s.422B of the Migration Act applies, as does s.424A. The combined effect of those sections is that there is no obligation at common law to provide particulars in relation to the independent information.

  26. In this case, however, it was not the information that was the reason for the Tribunal's decision. The Tribunal was not satisfied that the Applicant met the criteria for a protection visa because of the vagueness of the Applicant's claims and their lack of substantiation.  I refer to page 79 of the Court Book.

  27. The Applicant provides as his third particular the fact that the Tribunal failed to provide him with an adequate opportunity to respond to the substance of the information. As counsel for the Minister points out, the Applicant did not fail because of some adverse information that the Tribunal obtained. 

  28. The Applicant was unsuccessful because of a lack of evidence. 

  29. I should point out that in the letter to the Applicant of 9th September 2004, the Tribunal said that:

    The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

  30. A copy of that letter appears on page 66 of the Court Book.

  31. The Applicant told the Court that he thought that he had supplied the necessary information to the Tribunal and could not understand why the Tribunal had refused him.  The only information that the Tribunal had was that contained in the original application for a protection visa.  The Applicant had not forwarded any other submissions to the Tribunal, and the letter of 9th September 2004 to the Applicant made it clear that the information that the Tribunal already had was not considered sufficient to make a decision in his favour. 

  32. The fourth particular in the Amended Application is that the Tribunal failed to understand the Applicant's claim.  The Applicant was not able to provide any further particulars to the Court as to why he said the Tribunal lacked that understanding.  In any event, such a claim sounds more like an application for a merits review than any claim about a jurisdictional error. 

  33. In particular number 5, the Applicant claimed that the Tribunal failed to observe the Migration Act properly in making the decision. The Applicant was not able to provide any particulars of that, and said that it was his friend who had prepared the application for him.

  34. Particular number 6, the Applicant says that the Tribunal's decision was not based upon a rational or logical foundation. The Applicant provided no identification of that lack of logic or rationality, and I am not able to identify any.

  35. Particular 7 said that the Tribunal could not provide evidence to support that the Applicant would not suffer persecution from the Chinese authorities because of his Falun Gong membership. 

  36. Mr Potts of counsel for the Respondent Minister submits that this ground shows a misunderstanding of the nature of the inquiry that the Tribunal was required to embark upon.  He referred the Court to the decision of the Full Court of the Federal Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, at [14] to [16]. Subsection 65(1) of the Migration Act provides that:

    A decision to grant or refuse a visa is conditioned upon satisfaction as to the matters specified in that section, namely whether the criteria for the visa prescribed by the Act and the Regulations are met.

  37. He submitted, and I believe correctly, that it was open to the Tribunal not to be satisfied that the applicant met the criteria for the grant of the protection visa. As the Full Court of the Federal Court pointed out in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, if the Tribunal was not satisfied that the Applicant met the criteria for the visa, it was obliged to refuse to grant the visa and it did not need to reach a positive conclusion, let alone provide evidence to support that conclusion in refusing the application.

  38. The eighth particular provided is this:

    The Tribunal was not dissatisfied that I am a refugee, without giving proper evidence and materials to justify its decision.

  39. Leaving aside the double negative, which would tend to take away from the substance of the claim, the particular is really no more than a reiteration of the seventh particular. It is not the task of the Tribunal to provide evidence to show why it should refuse an application. It is incumbent upon the applicant to provide evidence to show why his application should be granted. 

  40. The Applicant is not legally represented. I have read through the Tribunal decision myself in order to ascertain whether there is any jurisdictional error which is not referred to in the amended application.  I cannot see any. 

  41. The Applicant has not made out any claim that there was a jurisdictional error. 

  42. The reason why the application was not successful was that the Applicant had not provided sufficient evidence to support his claim for a protection visa.  The original application for a visa had been refused by a delegate of the Minister. 

  43. The Applicant did not provide any additional written evidence in support of his application for review.

  44. The Tribunal had written to the Applicant informing him that after considering the material that it did have, it was unable to make a decision in the Applicant's favour based on that information alone. 

  45. The Applicant did not forward any further information to the Tribunal, nor did he attend the Tribunal hearing. He claims that he did not receive the registered letter until the day, or the working day immediately before the hearing date.  It is very difficult to understand why that would have occurred.

  46. I note that the address to which the Tribunal sent the letter on


    9th September 2004 was the same address that the Applicant gave on both his original application filed on 22nd December 2004 and his Amended Application filed on 23rd April 2005. 

  47. Rather surprisingly, on 11th January 2005 the Applicant filed a notice of change of address for service giving a different address in the same suburb. Whilst there may be an error on his Amended Application, that does not affect the letter to the Applicant inviting him to the hearing. 

  48. The Court has commented on many occasions in the past that applicants for a protection visa who would seek a review from the Refugee Review Tribunal make it extremely difficult for themselves if they do not attend the Refugee Review Tribunal hearing.

  49. Regrettably, this is just such a case. The decision is a privative clause decision that attracts the protection of s. 474 of the Migration Act.

  50. The application will be dismissed.

  51. There is an application for costs in the sum of $4,000.00. The Applicant has been unsuccessful in his case and in the ordinary course of events the successful party would be entitled to an order for costs.

  52. The Applicant says that he has no money because he does not have a work permit.  That is unfortunate, but it is not a ground for not making a costs order.  It is, however, a matter to be taken into account when considering time to pay. 

  53. I propose to allow four months to pay.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  11 October 2005

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