SZFLN v Minister for Immigration

[2006] FMCA 1544

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFLN v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1544

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant declining Tribunal hearing invitation – Tribunal making decision in his absence – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.425

Abebe v Commonwealth (1999)162 ALR 1
NBHP v Minister for Immigration [2005] FCA 1857
S58 of 2003 v Minister for Immigration [2004] FCAFC 283
SJSB v Minister for Immigration [2004] FCAFC 225

Applicant: SZFLN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG80 of 2005

Judgment of: Driver FM

Hearing date: 17 October 2006

Delivered at: Sydney

Delivered on: 17 October 2006

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr J Bird
Phillips Fox

ORDERS

1. The Refugee Review Tribunal be joined as the second respondent to the application.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG80 of 2005

SZFLN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 16 December 2004.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. 

   
   

   The applicant is from China and had made claims of persecution based upon his practice of Falun Gong.  Background to the applicant’s protection visa claims and the Tribunal’s decision on them are set out in the Minister’s written submissions filed on 11 October 2006.  I adopt as background for the purposes of this judgment paragraphs 1 through to 4 of those written submissions:

   The applicant is a male citizen of  the People's Republic of China.  He arrived in Australia on 14 September 2004 and applied for a Protection visa on 21 September 2004.  He claimed to have "suffered both physically and mentally" at the hands of the Chinese Government by reason of his Falun Gong membership (court book, page 16). A delegate of the first respondent refused the application on 22 September 2004.

   The applicant applied to the Tribunal for a review of that decision on 25 October 2004 (court book, page 43).  The Tribunal wrote to the applicant on 5 November 2004 inviting him to attend a hearing on 6 December 2004 (court book, page 51). The letter stated, amongst other things, that it "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" (court book, page 49). The applicant nonetheless expressly declined that invitation.

   The RRT handed down its decision on 16 December 2004.

   The decision of the Tribunal

   The Tribunal was not satisfied on the "very limited, vague and unreliable evidence available" that the applicant had a well founded fear of persecution within the meaning of the Convention on his return to China.

2. These proceedings began with a judicial review application filed on 11 January 2005.  Directions in relation to the application were given by Registrar Kavallaris on 31 January 2005.  The applicant attended in person with the assistance of a Mandarin interpreter and the Minister was represented by Mr Bird, who also appeared today.  The parties signed consent orders which were made by the Registrar.  Orders 3 and 4 made by the Registrar relevantly gave the applicant the opportunity to amend his application and to file evidence in support of it.  He filed an amended application on 10 May 2005, upon which he now relies.  He did not take up the opportunity to file any additional evidence.  The only evidence I have before me is the court book filed on 8 February 2005. 

3. In his amended application the applicant sets out seven grounds of review.  Grounds 2 to 6 are in template form and are meaningless in the absence of particulars.  Grounds 1 and 7 relate to the failure of the applicant to attend a hearing before the Tribunal.  The applicant asserts that the Tribunal was biased against him and refused him the opportunity to change the hearing date.  The applicant asserts that he was unable to attend the scheduled hearing date because of work commitments and that his failure to attend the hearing was determinative of the outcome.

4. In his oral submissions the applicant told me that he had asked a friend to telephone the Tribunal to advise of his problem and to request that the hearing be rescheduled.  He accepted, however, that there was no evidence to support that assertion and conceded that the telephone call may not have been made.  There is no record in the court book of any telephone call from the applicant or anyone on his behalf to the RRT following the hearing invitation dated 5 November 2004, which appears on pages 49 to 52 of the court book. 

5. There are two copies of the hearing invitation but that may be explained by the fact that they were sent to the applicant at alternative addresses.  The applicant was invited to attend a hearing on 6 December 2004.  He must have received the hearing invitation because he responded to it on 12 November 2004 (court book, page 53).  The applicant declined to attend the hearing and gave no explanation.  The applicant advised me from the bar table that he had been informed by a friend that it would not make any difference whether or not he attended a hearing.  That may well have occurred.  The applicant may have been poorly advised.  He now understands that he lost an important opportunity.  However, whatever advice the applicant may have received from friends or other persons the Tribunal was not responsible for it. 

6. The Tribunal fulfilled its statutory obligation to invite the applicant to a hearing.  When the applicant declined to attend the hearing the Tribunal was entitled to proceed in his absence.  As the applicant had already been told in writing by the Tribunal, the Tribunal had insufficient information for it to make a favourable decision.  The Tribunal confirmed in its reasons that that remained the position (court book, page 63). 

7. The presiding member signed the decision on 25 November 2004 but the decision was not handed down until 16 December 2004.  The date of handing down is the date of the decision.  The presiding member prudently waited until the scheduled date of the hearing had passed before making the decision, even though she was not required to wait. 

8. I otherwise agree with and adopt for the purposes of this judgment paragraphs 6 through to 10 of the Minister’s written submissions:

   Ground 1

   There is no evidence that the applicant attempted to contact the Tribunal about a desire to attend a hearing.  To the contrary, the applicant consented to the Tribunal deciding the review without him appearing before it (court book, page 53).     

   The effect of this consent was that the applicant was "not entitled to appear before the Tribunal" [s.425(3)]. This meant that the obligation that would otherwise be imposed upon the Tribunal by s.425(1) to invite the applicant to attend a hearing was displaced. In these circumstances, the Tribunal was entitled to proceed to make a decision prior to the passing of the hearing date nominated in the initial invitation: see NBHP v Minister for Immigration [2005] FCA 1857 per Jacobson J at [21]-[28].

   Grounds 2 and 3

   The allegation of bias cannot be sustained.  Nor is there any substance in the complaint that "there are sufficient information and evidence to justify the decision (sic)."

   It was for the applicant to advance whatever evidence or argument he wished to advance in support of his contention that he had a well‑founded fear of persecution for a Convention reason.  The Tribunal was then required to decide whether the claim was made out: Abebe v Commonwealth (1999)162 ALR 1.

   The Tribunal could not grant the application unless it was satisfied that the criteria for the grant of a protection visa were met (see SJSB v Minister for Immigration [2004] FCAFC 225 at [15] to [16]). The Tribunal advised the applicant that it could not make a decision in his favour without taking oral evidence. The applicant “cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity” : S58 of 2003 v Minister for Immigration [2004] FCAFC 283 at [26].

9. There is no jurisdictional error in the decision of the RRT.  It is therefore a privative clause decision and the application must be dismissed.  I will so order.

10. The application having been dismissed, costs should follow the event.   The Minister seeks an order for costs fixed in the sum of $4,000. 
    The applicant did not wish to be heard on costs.  I accept that costs of $4,000 have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis.  I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000. 

11. I will direct that the name of the first respondent be corrected by deleting the words “and Indigenous” and I will order that the Refugee Review Tribunal be joined as a second respondent to the application.  

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 October 2006