SZFLD v Minister for Immigration
[2006] FMCA 1222
•23 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFLD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1222 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China by reason of his practice of Falun Gong – applicant failing to respond to hearing invitation by the RRT and failing to attend at the appointed time – RRT proceeding in the absence of the applicant – whether the exercise of discretion under s.426A of the Migration Act 1958 (Cth) miscarried because the RRT failed to take into account the return unclaimed of the hearing invitation considered – no legal consequence of that failure – application dismissed. |
| Migration Act 1958 (Cth), s.426A |
| SZBCS v Minister for Immigration [2005] FCA 1457 SZDOG v Minister for Immigration (2004) 213 ALR 439 SZEMB v Minister for Immigration [2005] FMCA 448 |
| Applicant: | SZFLD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG67 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 23 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr J A C Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Court directs that the Refugee Review Tribunal be joined as the second respondent to the proceedings.
The Court directs that the words “and Indigenous” be deleted from the title of the first respondent.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG67 of 2005
| SZFLD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was signed on 22 November 2004 and handed down on 9 December 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of a fear of persecution based upon his practice of Falun Gong. Relevant background facts are adequately set out in written submissions filed on behalf of the Minister. I adopt paragraphs 2 to 5 of those submissions as background for the purposes of this judgment:
The applicant is a 41 year old citizen of China.[1] He arrived in Australia on 23 May 2004.[2] He submitted an application for a Protection (Class XA) Visa on 21 June 2004.[3] The applicant claimed a well founded fear of persecution on the basis that he was a Falun Gong practitioner.[4] The applicant claimed to have been arrested in November 2002 and detained until April 2003. During that time he described having been tortured.
After the Minister’s delegate refused the application on 27 July 2004 the applicant sought review by the RRT of an application filed on 30 August 2004.[5] In his application he restated his claim in summary form.[6] On 13 October 2004 the RRT sent an invitation to hearing to the applicant at both his home and mailing addresses.[7] It would appear that one of these letters was returned unclaimed to the RRT on 22 November 2004.[8]
The RRT proceeded to make its decision without a hearing, and the decision was handed down on 9 December 2004, affirming the decision not to grant a protection visa.[9]
The RRT’s decision
The RRT decided to proceed pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”). It found that based on the insufficient detail the applicant had provided the RRT was not satisfied that the applicant invoked protection obligations in Australia. For instance the applicant did not provide much, if any, detail on how he practiced Falun Gong, what he knew about Falun Gong, why he was actually arrested, and why he feared that he would be persecuted if he returned to the PRC. The RRT was not satisfied that the applicant was a sincere and genuine Falun Gong practitioner as claimed, nor that he was even a mere practitioner. Nor was the RRT satisfied that he was imputed with such practice in the PRC in the past, nor that he had a real chance of being imputed as a Falun Gong practitioner should he return to the PRC. Accordingly the RRT did not accept that the applicant had a well founded fear of persecution arising from his alleged practice of Falun Gong.[10]
[1] court book, pages 12-13.
[2] court book, page 14.
[3] court book, pages 1-21.
[4] court book, pages 20-21.
[5] court book, pages 35-39.
[6] court book, page 39.
[7] court book, pages 42-43.
[8] court book, pages 42 and 46.
[9] court book, page 51.
[10] court book, pages 55-56.
The applicant continues to rely upon his judicial review application filed on 11 January 2005. That application is defective in that it does not assert any jurisdictional error. It fails to engage properly the jurisdiction of the Court and exposes the applicant to the risk of having his application dismissed summarily. No doubt in view of that problem, when this case came before a registrar on 24 January 2005, she ordered that the applicant file and serve an amended application by 4.00pm on 5 April 2005. In addition, the registrar ordered that in default of compliance with that order the respondent Minister could request the registry to list the matter in a non-compliance list before me with the intention of applying for summary dismissal. The applicant did not comply with the order for an amended application but neither did the Minister seek to have the matter relisted. While that might seem to be initially disturbing, there is an explanation for it. The explanation is that the Minister’s legal advisers had identified a potential legal issue which merited a final hearing.
The legal issue is whether the RRT erred in proceeding in the applicant’s absence pursuant to s.426A of the Migration Act. The court book, which I accept as evidence, discloses that the applicant was invited to attend a hearing before the RRT by letter dated 13 October 2004[11]. The letter was sent to the applicant both at his nominated address service and to his residential address. Those were the addresses given by the applicant to the RRT in his review application[12]. The applicant did not respond to the hearing invitation.
[11] court book, pages 42 and 43
[12] court book, page 35
In his reasons for decision on page 54 of the court book the presiding Member stated the following:
On 13 October 2004 the Tribunal wrote to the applicant at the address stated on his ‘Application for Review’ form as his ‘home address’, and to the address stated to be his ‘mailing address’, advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 19 October 2004. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his case without further notice. No response to the Tribunal’s correspondence has been received and neither has the letter sent by the Tribunal been returned. The applicant did not ‘authorise a person to act and receive communication’ on his behalf, and accordingly no such line of enquiry was possible.
The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In the circumstances, and pursuant to s.426A of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before me. I have before me the application to the Tribunal and the Department’s file, which includes the protection visa application and the delegate’s decision record.
The statement by the presiding member that no response to the RRT’s hearing invitation had been received nor had the letter sent by the RRT been returned was probably true at the time the presiding member signed the decision record on 22 November 2004. However, the court book[13] records that on the same day a letter from the RRT was returned to the RRT and received. I observe from the received stamp on the hearing invitation[14] that it was the hearing invitation that was returned. The postal stamp on the envelope[15] indicates that the prepaid registered article was returned by Australia Post because it had been unclaimed.
[13] at page 46
[14] court book, page 42
[15] court book, page 46
It is not clear whether the letter which was returned was the letter sent to the applicant at his nominated postal address or at his home address. However, the inference is available from the court book that it was the latter. There is no evidence that any correspondence sent to the applicant’s nominated postal address was returned unclaimed apart from (potentially) the hearing invitation. There is evidence that a letter sent to the applicant at his home address and at an earlier nominated postal address was returned[16]. On the balance of probabilities, I am willing to conclude on the available material that it was the copy of the hearing invitation that was sent to the applicant’s home address that was returned unclaimed.
[16] court book, pages 44 and 45
In two decisions of this Court it has been held that a failure on the part of the RRT to consider the return of a hearing invitation in exercising its discretion under s.426A can constitute jurisdictional error. Those decisions are SZDOG v Minister for Immigration (2004) 213 ALR 439 and SZEMB v Minister for Immigration [2005] FMCA 448. The first decision involved facts somewhat similar to the present case. The second decision is clearly distinguishable. More importantly, however, the issue has been dealt with by the Federal Court on appeal from this court in SZBCS v Minister for Immigration [2005] FCA 1457. The facts in that case are indistinguishable from the present and the decision of the Federal Court is clearly binding upon me. At [32] of the decision Bennett J said:
It is the case that the Tribunal has discretion to defer the hearing but it is only if the Tribunal is obliged to do so that there is jurisdictional error. ‘The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject-matter, scope and purpose of the Act’ (citing Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; in Minister for Immigration & Multicultural & Indigenous Affairs v Huynh (2004) 211 ALR 126 at [71] per Kiefel and Bennett JJ). As was found in NADK and is apparent from the statutory scheme, the fact that the appellant was unaware of the hearing and that the Tribunal may have had notice of this, was of no legal relevance. The Tribunal was not required to take into account the fact that the invitation to hearing sent to the appellant’s home address had been "returned to sender".
I am bound to conclude from Her Honour’s decision that the apparent failure on the part of the presiding member, between the date of signing his decision and the date of handing it down, to consider that a copy of the hearing invitation had been returned to the RRT does not and could not constitute jurisdictional error.
At a practical level, I also note that on the facts of this case it is difficult to see what the presiding member could have usefully done if he had taken the return of the hearing invitation into account. Further correspondence to the applicant might have met the same fate as the hearing invitation. The applicant had not nominated an authorised recipient or identified any migration agent assisting him and there was no one else for the RRT to communicate with. The applicant had declined to provide the RRT with any telephone or facsimile contact numbers[17]. Confronted with those circumstances, I am confident that even if the presiding member had considered the return of the hearing invitation he would still have elected to proceed in the absence of the applicant, pursuant to s.426A of the Migration Act.
[17] court book, page 36
I find that there is no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $5,000. The Minister’s solicitor and own client costs I am told significantly exceed that figure. The Minister was properly represented by counsel today and the Minister’s counsel has properly raised a legal issue that was not raised by the applicant. That circumstance necessitated both written and oral submissions. In addition, a court book has been prepared and the Minister was represented at the earlier directions hearing before the registrar. I accept that $5,000 has been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 August 2006
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