SZFOH v Minister for Immigration - [2006] FMCA 955

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFOH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 955

MIGRATION – RRT decision – Chinese national claiming persecution for political opinions – did not attend hearing – invitation possibly not sent to agent at correct address – sufficiently sent to applicant’s residential address – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 425A, 426A, 426A(1), 441A(4), 441C(4), 474(1), 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), reg.4.35D

Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221
SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195

Applicant:

SZFOH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG195 of 2005

Judgment of:

Smith FM

Hearing date:

14 June 2006

Delivered at:

Sydney

Delivered on:

14 June 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr B Cramer

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG195 of 2005

SZFOH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 24 January 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 December 2004 and handed down on 23 December 2004. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s powers under s.483A are the same as the powers of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). They are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claim should be believed, nor whether he qualifies for a refugee visa. I do not have power to order the Tribunal to give him another opportunity to attend a hearing unless I am satisfied the Tribunal’s decision was invalidly arrived at.
The applicant arrived in Australia in June 2004, and an application for a protection visa was lodged on 5 July 2004 assisted by an agent, Mr George Jie Pei. The application attached a two‑page typed statement in which the applicant claimed to fear return to his country of nationality, The People’s Republic of China, because he had been supporting openly the political cause of Taiwanese independents and a referendum held in Taiwan. He claimed:
Since we support the referendum of Taiwan so openly, our sodality was kept watch on and investigated by the Chinese National Security Bureau. I was also warned and expelled, even demoted by leaders in our company.
He said he had been warned by police officers that he would be arrested, but had maintained secret contacts with the Taiwan businessmen with whom he had contacts. He indicated his disagreement with the policies of the Chinese Government in relation to democracy and freedom of speech, and said that since coming to Australia he had been told:
… my friend, who is in the same situation as me, has been arrested by the Chinese National Security Bureau without any information for three days. We all have positive attitude on supporting democracy activities and referendum of Taiwan.
No details or corroboration of his activities were provided to the Department, nor subsequently to the Tribunal, and the applicant did not explain how he was able to leave China.
A delegate refused the application on 12 July 2004 and the applicant, again assisted by Mr Pei, lodged an application for review on 6 August 2004. The application was accompanied by a submission which repeated the previous two‑page statement, and added some additional claims without further detail. He said:
It is obvious that my name is on the list of certain authority, since I was kept watch on by police. …
I can not provide any evidence in written form. I did not know apply for the Refugee in Australia needed such documents, I did not has the consciousness to collect and bring such evidences with me when I was fleeing out. But I can provide oral evidence which is true and in detail.
The application for review appointed Mr Pei as his agent, authorised to act for him in relation to the application. It gave the applicant’s residential address in Ashfield and authorised his agent to receive correspondence.
By letter dated 27 October 2004, the Tribunal informed the applicant 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”. The letter invited the applicant to attend a hearing on 29 November 2004, and told him that if he did not attend, the Tribunal could make a decision on the case without further notice.
The letter was posted to the applicant at his last residential address provided to the Tribunal. In my opinion, it therefore complied with the requirements of s.441A(4), and was deemed to have been received pursuant to s.441C(4) in time to provide the requisite period of notice required under reg.4.35D of the Migration Regulations 1994 (Cth).
The Court documents indicate that a copy of the letter was also sent to the applicant’s agent, but the address shown is a different address at Ashfield than the address of the agent shown in the application for review. One explanation for this might be that the Tribunal was aware of a change of location of the agent, but there is not evidence to this effect before me. However, in my opinion, the sending of the invitation to the applicant himself satisfied the obligation of the Tribunal to serve an invitation to a hearing pursuant to s.425A, and it is irrelevant whether the invitation was also duly sent to the agent (see Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221).
In its statement of reasons the Tribunal referred to the sending of this letter and its outcome:
On 27 October 2004 the Tribunal wrote to the Applicant (and his registered migration agent) advising that it had considered all the material before it relating to his application but it 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 29 November 2004. The Applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. The Applicant has not provided a contact number and letters sent to his home address have been returned either as left address or insufficient address. The Tribunal contacted the Applicant’s registered migration agent on 23 November and was told that a response about the hearing would be sent as soon as possible. As at the date of signing this decision nothing has been received by the Tribunal and 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 these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it. The Tribunal has before it the Department’s file, which includes the protection visa application and the delegate’s decision record. The Tribunal also has had regard to the material referred to in the delegate’s decision.
In my opinion, based on the findings I have made above, the power of the Tribunal under s.426A(1) to proceed without taking any further action was available to it as a matter of law. There is no evidence before me which suggests that its exercise of its discretion so to proceed has miscarried.
The applicant has told the Court in unsworn evidence that the reason for his non‑attendance was that he had business in another city and was unable to attend. He claimed not to have received notice of the invitation for that reason. However, he conceded that he had not made arrangements to be informed by his agent if important letters were received. He made no contention that the Tribunal was on notice of any circumstance which should have caused it to consider rescheduling the hearing.
The Tribunal’s reasons for affirming the delegate’s decision were in my opinion unexceptionable. The Tribunal made a finding that “the Applicant claims [are] very general and lacking in useful detail” as the reason why it was not satisfied that the applicant had a well‑founded fear of persecution within the meaning of the Convention if he returned to China.
The Tribunal referred to some aspects of the visa application which appeared to require some explanation, and referred to the lack of opportunity it had to test the applicant’s claims. However, in my opinion, these references do not show the use of information by the Tribunal as a reason for affirming the delegate’s decision which suggests a failure to comply with the obligations under s.424A(1) (c.f. SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, and SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801). I am unable to identify in the procedures or reasoning of the Tribunal any jurisdictional error affecting its decision.
The application filed by the applicant in this Court contends that the Tribunal “did not consider all the documents and information provide for my application”. However, in my opinion there is no substance to that contention. The Tribunal made reference to the only two documents presented by the applicant supporting his claims, being the statement with his visa application and the statement with his review application. It has in my opinion plainly considered whether it was able to be satisfied as to the truth of the claims made in those documents, and has not been so satisfied.
The second ground in the application is that the applicant “should be given another opportunity to explain more about my application”. However, in my opinion there was no legal duty on the Tribunal to afford that opportunity, since it was expressly permitted by s.426A(1) to proceed without giving that opportunity.
Ground 3 says:
As the bias of the officer, my application was not considered in the normal steps, there were not materials to justify the decision.
However, in my opinion no substance has been shown for any allegation of bias, failure to follow procedures, or an allegation that the decision was legally unjustified.
The applicant’s amended application repeats contentions which I have already addressed above, and also contains some general contentions of jurisdictional error without any particulars allowing me to meaningfully address them.
The applicant’s arguments to me today made contentions which I have already addressed above.
For the above reasons, I have not been able to find jurisdictional error affecting the decision of the Tribunal, and the decision is therefore a privative clause decision within s.474(1) of the Migration Act. I must dismiss the application.

I certify that the preceding twenty‑one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 July 2006