SZGDZ v Minister for Immigration - [2006] FMCA 604

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGDZ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 604

MIGRATION – RRT decision – Chinese claiming persecution for Falun Gong involvement – did not attend Tribunal hearing – did not attend final hearing for judicial review – no acceptable explanation – no prospect of success – application for reinstatement refused.

Federal Magistrates Court Rules 2001, r.16.05(2)(a)
Migration Act 1958 (Cth), ss.425A, 426A(1), 441A, 441C
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant:

SZGDZ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1081 of 2005

Judgment of:

Smith FM

Hearing date:

18 April 2006

Delivered at:

Sydney

Delivered on:

18 April 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Bird

Solicitors for the Respondents:

Phillips Fox

ORDERS

The applicant’s application under r.16.05(2)(a) to set aside orders made on 16 August 2005 is refused.
The applicant must pay the first respondent’s costs in the sum of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1081 of 2005

SZGDZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application seeking orders under rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 seeking to set aside an order I made on 16 August 2005. In that order I dismissed the applicant’s substantive application due to his absence from a final hearing, of which he had been given notice by me in person at a directions hearing on 4 July 2005. The applicant had attended that directions hearing and was assisted by an interpreter. I told him of the hearing date and that his application would be dismissed if he did not attend. My orders also required the respondent to confirm the listing in writing to the applicant, and it is reasonable to assume that also occurred.
In his oral evidence today the applicant acknowledged that I warned him of the likely consequence of non‑attendance. His explanation for not attending the hearing is given in an affidavit, and was maintained in his oral evidence today. It is that he preferred to take the advice of a migration agent, or former migration agent, called Jack Meng, who told him that it was better for him not to attend the Court hearing and that it was no use for him to go.
For reasons which I shall explain below, Mr Meng’s advice may well have reflected a proper assessment of the merits of the matter in this Court. However, in my opinion, it does not provide an acceptable explanation for the applicant’s failure to attend a hearing, where the consequences for non‑attendance had been clearly explained to him. For that reason, I would dismiss the present application.
My further reason for dismissing the application is that the applicant has no argument which has any prospect of success at a final hearing, if the substantive application were reinstated.
The circumstances of the Refugee Review Tribunal’s decision were as follows. The applicant arrived in Australia for the last occasion in February 2002. His passport revealed many earlier visits to Australia, and a statement attached to his application for a protection visa lodged on 16 November 2004 referred to these visits as being “for business purposes”. In two brief paragraphs, the statement claimed that the applicant “became a target for criticism because of close relationship with the students’ organization and the support I provided to the students” in demonstrations in 1989. However, no particulars of any persecution were given.
The second paragraph of the statement said:
After I came to Australia, I often traveled between China and Australia; I came crossed with friends who were actively involved with Falungong activities in China. I became a member and I helped to bring some information and leaflets about Falungong to China from Australia for better promotion of Falungong. My home was search in February 2002, before they could sue me; I left China with my passport and visa. I could not return to China since then.
No further details of these claims were given to the Department of Immigration, nor subsequently to the Refugee Review Tribunal (“the Tribunal”). A delegate refused the application on 11 January 2005.
The applicant’s visa application had not referred to any agent assisting him, and gave a residential and postal address at a home unit in Wollongong which the applicant has today confirmed was his true address. It was to that address that the delegate’s decision was sent. In it the delegate referred to the applicant’s visa application as being “notable for the absence of supporting evidence of any kind”. The applicant would have me believe that he did not inform himself as to that decision, nor the reasons for it, but that he blindly followed the advice of Mr Meng.
The applicant’s application for review to the Tribunal was lodged on 3 February 2005. Once again, it did not disclose any involvement of an agent, nor appoint an agent to receive correspondence or act for the applicant. It repeated the applicant’s previous residential address, and requested that correspondence should be sent to that address in Wollongong.
It was to that address that the Tribunal sent a letter on 4 March 2005. This invited the applicant to a hearing on 31 March 2005. The letter informed the applicant:
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 also informed the applicant that if he could not attend a hearing the Tribunal could make a decision on his case without further notice. A multilingual explanatory brochure was enclosed.
The applicant has given unsworn evidence to me today, giving a confused history of consulting Mr Meng about whether to attend the Tribunal hearing, and of being advised that he should not. This evidence is frequently heard in this Court, and it has become common for applicants to seek to blame their advisers so as to obtain an order remitting a matter for further hearings in the Tribunal.
Fortunately for the Court, the Migration Act 1958 (Cth) has been framed to avoid the necessity of embarking upon the factual investigation of most of these claims. In cases such as the present, s.426A(1) authorises the Tribunal to determine a matter without taking further steps to reschedule a hearing, if an applicant does not attend a hearing in relation to which a proper invitation was duly posted. There is now clear authority that it is irrelevant whether the applicant received actual notice of a hearing invitation, so long as the Tribunal has followed the requisite procedures for service (see ss.425A, 441A, 441C, and reg.4.35D of the Migration Regulations 1994 (Cth), and VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [16], applied in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12]).
In the present matter, it is clear on the evidence in the Court Book that the Tribunal has complied with those requirements, and that it had available to it the power under s.426A(1) to proceed to make a decision on the matter without taking further action to enable the applicant to appear. The Tribunal did follow that procedure, and I can see no arguable ground for judicial review arising from its exercise of that discretion.
Nor can I identify any arguable error in the Tribunal’s reasoning when affirming the delegate’s decision. Its short reason was:
Given the brevity and vagueness of [the applicant’s] claims, which amount to no more than a series of unsupported assertions, I am unable to establish the relevant facts. The Tribunal is not satisfied, on the evidence before it, that he has a well‑founded fear of the persecution within the meaning of the Convention.
The application originally filed in this Court on 27 April 2005 contains four contentions, of which only one contains a criticism of the Tribunal. That criticism is that “the Refugee Review Tribunal has overlooked some of the claims the applicant has made”. However, patently there is no substance to that contention.
An amended application filed by the applicant on 20 June 2005 contains assertions of the applicant’s refugee claims, and also urges humanitarian considerations “to allow him to make a new living in Australia”. However these are contentions which the Court cannot give attention to. They do not provide arguable grounds for the final relief sought from the Court.
In his application to set aside the default order, the applicant has not presented any arguable case for that relief. He raised only his contention that Mr Meng was to blame for his absence before the Tribunal as well as his absence before the Court. For reasons which I have given above, I consider that contention, even if true, has no prospects of success in obtaining a favourable outcome in this Court, and I can see no purpose in setting aside my previous orders dismissing the application.
For the above reasons I dismiss the applicant’s interlocutory application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 28 April 2006