SZFYB v Minister for Immigration
[2006] FMCA 1577
•25 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFYB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1577 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China due to his association with Falun Gong – applicant failing to respond to hearing invitation or to attend the Tribunal hearing – Tribunal proceeding in his absence – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.425A, 426A, 441A, 441C Judiciary Act 1903, s.39B |
| NAHI v MIMIA [2004] FCAFC 10 SJSB v MIMIA [2004] FCAFC 225 NAST v MIMIA [2004] FCAFC 208 |
| Applicant: | SZFYB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG711 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 25 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2006 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondents: | Mr D. Lee Phillips Fox |
ORDERS
The application is dismissed.
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 $3,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG711 of 2005
| SZFYB |
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 Tribunal”). The decision was handed down on
22 February 2005. The Tribunal 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 persecution based upon his association with Falun Gong.
Background information relating to the applicant’s protection visa claims and the Tribunal decision on them is conveniently set out in the Minister’s outline of written submissions filed on 17 October 2006.
I adopt as background for the purposes of this judgment paragraphs 4 through to 10 of the Minister’s written submissions:
Background
The applicant is a male citizen of China who arrived in Australia on
10 September 2004[1] and applied for a protection visa on 19 October 2004.[2] His claims were set out in a statement accompanying the application.[3] The application was refused on 21 October 2004.[4][1] Court Book (“CB”), 28
[2] CB, 1-25
[3] CB, 26-27
[4] CB, 31-42
The applicant applied to the RRT for review of the original decision on 26 November 2004.[5] He repeated his claims in an additional written statement.[6]
[5] CB, 43-46
[6] CB, 47
The RRT wrote to the applicant on 17 December 2004 inviting him to attend a hearing on 18 January 2005. [7] He did not respond to the hearing invitation and did not attend the hearing. [8]
[7] CB, 50-51
[8] CB, 52
The RRT proceeded to make its decision on 28 January 2005[9], without taking further action to enable the applicant to appear before it, pursuant to s.426A of the Act. The RRT sent a letter to the applicant notifying him of the outcome of its decision on 22 February 2005.[10]
[9] CB, 60-67
[10] CB, 56
The applicant's claims
The applicant made the following claims[11]:
[11] CB, 26-27,47, 64
He was a genuine Falun Gong practitioner. After the authorities outlawed Falun Gong, he was detained by police for almost one month in Tianjin city re-education detention.
He was tortured by police and forced to declare separation from Falun Gong. After release he was required to report 2 times a week.
He paid 60,000 RMB (AUD$11,000) to bribe a government officer to give him a passport.
The decision of the RRT
The RRT was not satisfied that the applicant held a genuine fear of persecution[12]:
The applicant's claims were extremely vague and lacking in detail.
The RRT put the applicant on notice as to the deficiencies in his application, but no further evidence was received and the applicant did not attend the hearing.
The RRT decision contains an incomplete sentence at page 6[13], beginning "Again no further information is …". It is obvious the word "provided" (or similar) would complete the sentence as it was intended.
[12] CB, 65
[13] CB, 65
The applicant relies upon an amended application filed on 10 October 2005. His original judicial review application was filed on 22 March 2005. That application failed to properly engage the jurisdiction of the court because it did not assert any jurisdictional error. To deal with that defect, I made orders on 13 September 2005 among other things requiring the applicant to file and serve an amended application no later than 14 October 2005 identifying at least one jurisdictional error in the decision of the Tribunal and giving particulars of each jurisdictional error alleged. The amended application filed on 10 October 2005 meets the requirements of my order in part. The first paragraph asserts an error of law, although no meaningful particulars are given. The balance of the amended application simply rehearses the applicant’s protection visa claims.
The decision of the Tribunal is a simple one. The applicant had been invited to attend a hearing before the Tribunal by letter dated 17 December 2004, court book page 50. He made no response to that letter and the letter was not returned unclaimed. He failed to attend the scheduled hearing. The Tribunal had no alternative means of contacting the applicant. The circumstances are dealt with by the presiding member in her reasons on page 63 of the court book.
The Tribunal was left in the position of having insufficient information before it to enable it to make a favourable decision. That was the outcome.
The applicant was unable to identify any jurisdictional error in the approach taken by the Tribunal to the hearing or in its decision.
He plainly disagrees with the decision. He asserts that he did not receive the hearing invitation. However, it was addressed to the only address provided by the applicant, and the Tribunal had no other means of contacting him. The Tribunal met its statutory obligation to invite the applicant to a hearing. When he failed to attend, the Tribunal was entitled to proceed in his absence. The Tribunal was entitled, indeed, it was probably compelled, to make the decision it did because of the insufficiency of information before it supporting the grant of a visa.
I agree with, and adopt for the purposes of this judgment, the Minister’s written submissions set out in paragraph 16 through to 22 of the outline:
Nothing in the application or amended application demonstrates any jurisdictional error by the RRT. The first respondent contends that the restating of the applicant's refugee claims are clearly an attempt to engage the Court in merits review. This is no part of the function of the Court in dealing with an application for relief under s.39B of the Judiciary Act 1903 (see NAHI v MIMIA [2004] FCAFC 10 at [10]).
The first respondent submits that it was open for the RRT to reach its decision on the lack of evidence before it and that there is no apparent reviewable error on the face of the RRT decision.
The RRT complied with the relevant statutory procedural requirements. It complied with s.441A(4) when it sent the hearing invitation[14] to the applicant at the postal address nominated in his RRT application[15]. There is no evidence to suggest that the address had changed, or that the applicant had not previously received mail at that address, or that the RRT knew or ought to have known that his address had changed.
[14] CB, 50
[15] CB, 44
As such the hearing invitation is taken to have been received by the applicant in accordance with s.441C(4).
The applicant was informed that the RRT was unable to make a decision in his favour without taking further evidence. The hearing invitation was a valid invitation pursuant to s.425A. No further information was provided to the RRT by the applicant following the hearing invitation, and the applicant did not respond to the hearing invitation in any manner. As it had complied with its obligations under s.425A, the RRT was entitled to exercise its power under s.426A to proceed with making a decision without giving the applicant further opportunity to appear before it.
Ultimately, as noted above, the RRT simply was not satisfied that the applicant met the criteria for the grant of the visa. As was explained by Ryan, Jacobson and Lander JJ in SJSB v MIMIA [2004] FCAFC 225 at [15][16], section 65(1) of the Act:
"…does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of the visa in question have been satisfied".
This conclusion is supported by the decision of the Full Court of the Federal Court in NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] where it was observed (by Beaumont, Merkel and Hely JJ):
In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.
[16] Later affirmed in MIMIA v VSAF of 2003 [2005] FCAFC 73 at [17] per Black CJ, Sundberg and Bennett JJ.
There is no jurisdictional error in the decision of the Tribunal.
The decision is therefore a privative clause decision, and the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum or $3,759 on a party and party basis. I accept that costs of not less than $3,750 have been properly and reasonably incurred on behalf of the Minister.
The applicant is concerned about his capacity to pay, but that is not a reason for the court to refrain from making a costs order. I will order that 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 $3,750.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Deputy Associate:
Date: 2 November
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