SZGBS v Minister for Immigration
[2006] FMCA 1844
•22 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGBS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1844 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 422B, 425, 425A, 426A, 441A, 483A Migration Regulations 1994 (Cth), reg.4.35D |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration v Lay Lat (2006) 151 FCR 214 Minister for Immigration v SZFHC [2006] FCAFC 73 SAAP v Minister for Immigration [2005] HCA 24 SZCIA v Minister for Immigration [2006] FCA 238 SZCIJ v Minister for Immigration [2006] FCAFC 62 |
| Applicant: | SZGBS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG912 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 8 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Ms S Kaur-Bains |
| Solicitors for the Respondents: | Ms F Kerr of Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 13 April 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG912 of 2005
| SZGBS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 13 April 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 18 February 2005 and handed down on 15 March 2005, affirming a decision of the delegate of the first respondent made on 30 November 2004, refusing to grant the applicant a Protection (class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGBS”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
The solicitors for the respondents filed a Court Book (“CB”) on
31 May 2005, which I mark as Exhibit ‘A’, the contents of which were read into evidence.
Ms Kaur-Bains filed the following exhibits:
a)‘R1’, a registered post record of the Tribunal;
b)‘R2’, a Tribunal check-list;
c)‘R3’, a Tribunal case log history.
These exhibits were read into evidence.
Background
The Tribunal decision of Dr Irene O’Connell, reference N04/50409, provides the following background information. The applicant, who claims to be a citizen of The People’s Republic of China (“the PRC”) arrived in Australia on 4 November 2004. On 15 November 2004, he lodged an application for a Protection (class XA) visa with the Department of Immigration under the Act. On 30 November 2004, a delegate of the Minister refused to grant a protection visa and on
31 December 2004 the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 55)
At the time of the protection visa application, the applicant was a 41 year old married man from Lia Ning, PRC. He listed both his ethnic group and his religion as Falun Gong. He also said that prior to his arrival in Australia, he was self-employed. He stated that he had 6 years of only primary school education. Also, that he was a business man and had been one since completing his education. He stated that he was involved in Falun Gong activities and that Falun Gong had been declared an evil cult and outlawed by authorities in the PRC.
He further claims that since arriving in Australia he had practiced and been involved in Falun Gong and was actively involved in promoting Falun Gong.(CB 58)
Tribunal’s Findings and Reasons
A convenient summary of the Tribunal’s findings and reasons is contained in the respondents’ written submissions prepared by
Ms Kaur-Bains and I adopt paragraphs 4 to 8 for the purpose of this judgment:
4.The Tribunal correctly noted that the applicant in the statement attached to the protection visa application claimed that he feared persecution by the Chinese authorities by reason of his religious belief and membership of Falun Gong (RD:58, first paragraph).
5.By letter dated 17 January 2005 the Tribunal sent the applicant an invitation to a hearing pursuant to section 425 of the Migration Act (as appears in reprint 9 of the Migration Act) inviting the applicant to appear before it on 17 February 2005 to give evidence and present arguments relating to the issues arising in relation to the decision under review. A copy of the notice of invitation to appear is contained in the Court Book at page 48.
6.The Tribunal’s reasons record that on 9 February 2005, prior to the hearing date, the Tribunal carried out a “no reply check”. A copy of the “no reply check” is attached to these submissions.
7.The Tribunal’s reasons record that the applicant did not appear on the day of the hearing and in those circumstances the Tribunal decided pursuant to section 426A of the Migration Act to exercise its discretion and decide the matter without taking any further action to enable the applicant to appear before it (RD: 57, fifth paragraph). Section 426A gave the Tribunal that power.
8.The Tribunal found the applicant’s claims so vague and general that the Tribunal was not satisfied on the evidence that the applicant had a well-founded fear of persecution (RD: 58).
Application for Review of the Tribunal’s Decision
On 13 April 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following ground:
The [Refugee] Review Tribunal failed to comply with its obligation pursuant to the Migration Act 1958 and denied the applicant procedural fairness.(wrong Tribunal identified – error corrected)
Submissions
The applicant appeared as a self-represented litigant with the assistance of a Mandarin interpreter. The applicant confirmed that the original application was the only document filed in these proceedings and that he had not complied with the orders made by Registrar McIllhatton at first directions. When the applicant was invited to make oral submissions, he made reference to a document about Falun Gong. However, this appears to be a statement that he provided to the delegate at the time of his original visa application.(CB 26) The only other thing the applicant said was that he was unable to return to the PRC because he feared for his safety.
Ms Kaur-Bains, in her written submissions, submits that the issue in this case seems to be whether the Tribunal’s decision to proceed in the absence of the applicant was procedurally fair and open to it under s.426A(1)(b) of the Act. Section 425A(2)(a) of the Act provides that the notice of invitation to appear must be given by one of the methods specified in s.441A. Section 441A(4) then provides that the documents can be sent by pre-paid post to the last address for service or the last residential business address provided to the Tribunal by the applicant in connection with the review. Section 425A(3) provides that the period of notice must be at least for the prescribed period, which is set out in reg.4.35D of the Migration Regulations 1994 (Cth). Section 425A(4) of the Act provides that the notice must contain a statement of the effect of s.426A. On 17 January 2005, the Tribunal forwarded a letter to the applicant in compliance with s.425A indicating that it had considered the material before it in relation to the application, but was unable to make a decision in the applicant’s favour on that information alone. An invitation was extended to the applicant to attend the Tribunal hearing on 17 February 2005. Exhibit ‘R1’, the Tribunal’s registered post records, indicates that a registered letter was sent to the applicant on 17 January 2005 with registered post number RP20926411.
Ms Kaur-Bains submits that the notice of invitation was served in accordance with s.425A of the Act and contained a statement as required by s.425A(4):
The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the haring, it can make a decision on your case without further notice.
Ms Kaur-Bains submits that on 9 January 2005, the Tribunal member telephoned the applicant and left a number on the applicant’s missed call service.(Exhibit ‘R2’) This call was made as part of the procedures adopted by the Tribunal in the absence of a reply to a hearing invitation. Exhibit ‘R3’, a copy of the Tribunal case log history, records the following:
9/2/05 I called the appl and left a number on his missed call service-NMohammed
9/2/05 No Reply checklist completed-NMohammed
Ms Kaur-Bains submits that s.426A of the Act makes it clear that if the applicant is invited to the hearing but does not appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Section 426A(2) does not prevent the Tribunal from rescheduling the hearing, the exercise of which is essentially a matter for the Tribunal. The Tribunal decided to proceed with the hearing. Ms Kaur-Bains submits that given the provisions of the Act referred to, no error is disclosed in the way that the Tribunal exercised that discretion.
Ms Kaur-Bains also submits that s.422B(1) of the Act applies to this matter as the application for review to the Tribunal was made after the commencement of that section. The section provides that Division 4 of Part 7 of the Act is “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.” Division 4 includes s.425, 425A and 426A. The common law natural justice hearing rule does not apply: SZCIJ v Minister for Immigration [2006] FCAFC 62; Minister for Immigration v Lay Lat (2006) 151 FCR 214. Ms Kaur-Bains further submits that at any rate, the Full Federal Court in Minister for Immigration v SZFHC [2006] FCAFC 73 at [39] held that the Tribunal, having complied with one of the methods prescribed in s.425A, was under no further obligation to discover if there was some other avenue to communicating with the applicant.
Ms Kaur-Bains made the submission that as the applicant was unrepresented, it was appropriate that she make submissions in respect of whether s.424A had been complied with. It is argued that the proper construction of the Tribunal’s reasons is that it was simply not satisfied of the relevant matters, and there was no failure to comply with s.424A of the Act: SZCIA v Minister for Immigration [2006] FCA 238 at [11] -[12] per Allsop J.
When the applicant was invited to reply to any of the issues that had been raised by Ms Kaur-Bains, he said that it was not possible for him to return to China and there was nothing further that he wished to add to his previous comment.
Conclusion
The material before the Court clearly demonstrates that the Tribunal observed the requirements of the Act in respect of notifying the applicant about the Tribunal hearing. I accept the submissions made by Ms Kaur-Bains that no jurisdictional error arises from the procedures followed by the Tribunal. The Tribunal did not make positive findings of facts about the applicant, but rather rejected his claim because of it was not satisfied, due to the lack of information before it, that Australia owed protection obligations to him under the Refugees Convention. This proposition is clear from the Tribunal’s conclusion at Court Book 58:
The Tribunal has a number of issues upon which it requires a good deal more detailed evidence before it could be satisfied that the Applicant is in genuine fear of persecution and that there is a real chance that he will be persecuted.
On the limited information available to it, the Tribunal cannot be satisfied that the Applicant was involved in Falun Gong in China or that he has practised Falun Gong in Australia and that he faces harm on his return to China by reason of his claimed involvement in Falun Gong.
Neither is it apparent that any other grounds of review exist to suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 18 December 2006
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