SZFPM v Minister for Immigration

[2006] FMCA 1046

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFPM v MINISTER FOR IMMIGRATION [2006] FMCA 1046

MIGRATION – Review of RRT decision − where applicant found not to have a well-founded fear of persecution on basis of his membership of Falun Gong − where applicant invited by letter to attend RRT hearing − where applicant claimed not to have received the letter and did not attend the RRT hearing − whether applicant deemed by s.441C(4) to have received invitation to appear − whether RRT showed bias in its decision-making − whether RRT considered every integer of the applicant’s claims.

Migration Act 1958, ss.425A, 426A, 441A, 441C

SCAA v  Minister for Immigration [2002] FCA 688
VNAA v Minister for Immigration [2004] FCAFC 134
SZDPB v Minister for Immigration [2006] FCAFC 110
Minister for Immigration v SZFHC [2006] FCAFC 73

Applicant: SZFPM

First Respondent:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
File Number:	SYG 231 of 2005

Judgment of: Raphael FM

Hearing date: 19 July 2006

Date of Last Submission: 19 July 2006

Delivered at: Sydney

Delivered on: 19 July 2006

REPRESENTATION

Applicant in Person
Counsel for the Respondents:	Ms M. Allars

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 231 of 2005

SZFPM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China.  He arrived in Australia on 10 August 2004.  On 18 August 2004 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs.  On 30 August 2004 a delegate of the Minister refused to grant a protection visa and on 1 October 2004 the applicant applied for a review of that decision.

2. In his application, a copy of which is found commencing at [CB 001] and which is in typed form, the applicant gives as his addresses in his declaration at [CB 14] an address in Pitt Street Sydney 2000, and another address in Campsie 2194.  At [CB 4] the applicant indicates that his residential address is the address in Campsie.

3. The applicant was informed of the refusal of his protection visa by way of letters from the Department sent to both his addresses.  His mailing address, also described as his address for service in his application for review of the delegate's decision, is given as the Pitt Street address [CB 48].  The Tribunal wrote to the applicant at that address on 1 October 2004.

4. One of the things that the Tribunal says in that letter is that the applicant should:

   “Tell us immediately if you change your home address, your mailing address, and your telephone number or if there is any change in the name or address of your authorised recipient.  If you do not you might not receive an invitation to a hearing or other important information and your case may be decided without further notice.”

5. On 5 November 2004 the Tribunal invited the applicant to a hearing on 2 December 2004.  The invitation letter was sent to the Pitt Street address as well as to the Campsie address.  The letter to the Campsie address was returned to the sender on 15 November 2004.  The letter to the Pitt Street address was not so returned.  The Tribunal says in its grounds and reasons for decision at [CB 65]:

   “No response [to the invitation letter] was received from the applicant and the letter was not returned to the Tribunal.  The applicant's adviser's office was telephoned by a Tribunal staff member and a message requesting the adviser to contact the Tribunal was left on two occasions.  There has been no further contact or information from the applicant or the adviser.  The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. 

   Under these 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.”

6. The applicant claimed to have a well-founded fear of persecution for the Convention reason of membership of a particular social group, namely the Falun Gong.  In his statement he said that his uncle was a member and had been sentenced to imprisonment in March 2000.  He said that he himself had been detained and had lost his job as well as being tortured cruelly.  That apparently occurred in 2000.  The applicant was released.  In June 2004 he claimed that the police came to a friend's home where he was practising Falun Gong and that several members were arrested.  He states:

   “I was lucky to leave on time”,

   which I take to mean that he was lucky to have left before the police arrived. 

7. The statement I have referred to is the statement that was before the delegate, and in the delegate's decision it was made clear that this information was not substantial enough to satisfy the delegate that the applicant was a person to whom Australia owed protection obligations for a number of reasons which are set out at [CB 44] and [45]. To that extent the applicant was on notice of the fact that he was required to provide more detail if he stood any prospect of satisfying the Tribunal of the genuineness of his claims.

8. The applicant did not appear at the hearing with the Tribunal who determined that it was unable to be satisfied that he had a well-founded fear of persecution, saying at [CB 67]:

   “In assessing the applicant's Convention claims I am required to determine whether he has a well-founded fear and if what he fears amounts to persecution for a Convention reason.  The applicant has not provided any further evidence to support his claims.  He was informed by the Tribunal that on the evidence to date it was unable to accept his claims.  He was offered the opportunity to give evidence and make submissions at a hearing and he did not avail himself of that opportunity.  The delegate's decision put the applicant on notice as to the deficiencies in his application yet no further evidence has been received.

   Upon the whole of the material before me I do not accept that the applicant holds a genuine fear of persecution or that any fear he claims to have in this regard is well-founded...I am not satisfied on the evidence before me that the applicant was or is in fear of persecution. 

   Without the opportunity to question the applicant about his claims and to hear detailed evidence about his claimed practice of Falun Gong in China and his reasons for believing that he will be persecuted upon his return to China I am not satisfied on the evidence before me that the applicant has a well-founded fear of persecution for a Convention reason.”

9. The applicant's grounds for seeking review of the Tribunal's decision are set out in his amended application filed on 27 May 2005.  He claims that the Tribunal was biased against him:

   “When he found out that I could not attend the hearing, I really wanted to attend the interview, however, I did not receive the invitation and I did not know the hearing at all.”

   As von Doussa J said in SCAA v  Minister for Immigration [2002] FCA 688 at [36]:

   “Actual bias arising from prejudgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. …That decision [Minister for Immigration v Jia [2001] 178 ALR 421 at [70-72] per Glesson CJ and Gummow J] also stresses that a party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proved": at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.”

10. The allegation of bias in this particular case is not distinctly made nor distinctly proved and I would reject that ground for review.  The second ground the applicant put forward was that:

    “The RRT failed to exercise its jurisdiction as it did not have any finding as to whether I would be persecuted if I attempted to practise Falun Gong in China.”

    The Tribunal had come to a conclusion that it was not satisfied that the applicant was a Falun Gong practitioner at all and under those circumstances there was no necessity for it to take the next step and consider whether or not he would be persecuted if he returned to China and practised.  The Tribunal notes that the applicant did not give any particulars of why he felt he would be persecuted upon his return. 

11. The third matter raised by the applicant was that:

    “The Tribunal did not refer to adequate particulars of the independent information.” 

    In fact the Tribunal did not refer to any independent information.  The delegate most certainly did at [CB 43] to [44] and that information is fully particularised. 

12. The fourth matter raised by the applicant is that:

    “The Tribunal did not observe the Migration Act properly to making the decision.” [sic]

13. I shall assume that this refers to the Tribunal's making of the decision in the absence of the applicant. That is the matter most exercising the applicant at the hearing today. Ms Allars in her helpful written submissions, a copy of which was provided to the applicant and translated to him by the interpreter this morning, sets out the requirements of the Act in relation to the provision of notice of a hearing found at s.425A of the Migration Act 1958 (“the Act”).

14. She goes through the provisions of s.441A which deal with the methods by which the Tribunal may give a document to a person and makes particular reference to s.441C(4) of the Act. At [3.7] of her submissions she says:

    “The effect of ss.425A, 426A, 441A(4) and 441C(4) is that an invitation to an applicant under s.425A if in writing and sent by prepaid post is taken to have been given to the applicant if sent to his or her last address for service or last residential address.”

15. The invitation in this case was sent to both addresses and the applicant was deemed by force of s.441C(4) to have received that invitation within seven working days of 5 November. This deeming provision is not displaced by the fact that one of his invitations was returned; VNAA v Minister for Immigration [2004] FCAFC 134 at [4]-[9], [13]‑[15], per Sundberg, Hely and Gyles JJ; affirmed in SZDPB v Minister for Immigration [2006] FCAFC 110 and also Minister for Immigration v SZFHC [2006] FCAFC 73. The effect of these decisions is that even if the only letter sent to the applicant was the one sent to Campsie the Tribunal was within its rights to exercise its discretion under s.426A.

16. That is not the end of the story.  The invitation was also sent to the Pitt Street address.  It was not returned from the Pitt Street address.  The Pitt Street address had been used in all previous correspondence and, interestingly enough, it was to the Pitt Street address that the decision was sent. The applicant has appealed against the decision.  He has not explained how the decision got to him and one can infer that it was sent to him through his advisers from the Pitt Street address.

17. The fifth matter raised by the applicant was that the Tribunal failed to consider his claims.  This is clearly incorrect.  Such claims as the applicant made were considered but the Tribunal was unable to be satisfied of their veracity. Finally, the applicant stated that he had points which he needed to clarify in a hearing and stated that he would provide more details to support his application in his outline of submissions.  The court did not receive any outline of submissions from the applicant but this morning through the interpreter he argued that it was only his failure to attend the hearing that prevented him from establishing his case.

18. As it is now clear that the Tribunal acted within its jurisdiction in dealing with the matter in the way in which it did, and as it is equally clear that it felt it did not have sufficient evidence to reach the state of satisfaction required by s.65, the Tribunal's decision cannot be said to have been made in error, let alone jurisdictional error.

19. I dismiss the application.  I order that the applicant pay the respondent's costs which I assess in the sum of $4,500.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: