SZGIU v Minister for Immigration

[2005] FMCA 1443

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGIU v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1443

MIGRATION – Visa – protection visa ­ Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of the People’s Republic of China – no reviewable error – privative clause.

PRACTICE & PROCEDURE – Costs – exercise of Court’s discretion not to make an order for costs in favour of the successful respondent.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.412; 426A; 474

Applicant: SZGIU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1301 of 2005

Judgment of: Scarlett FM

Hearing date: 19 September 2005

Date of Last Submission: 19 September 2005

Delivered at: Sydney

Delivered on: 19 September 2005

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondent: Mr Beech-Jones

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Refugee Review Tribunal be joined as a Respondent to the proceedings.

2. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1301 of 2005

SZGIU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of two decisions made by the Refugee Review Tribunal.  The first decision was made on 21 May 2002. 

   
   

   It incorrectly says on its cover that it was made in 2001, but that is clearly an error.  That decision was handed down on 12 June 2002.  That decision affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant.

2. The second decision was made on 7 October 2003.  It was handed down that same day.  That decision said that the Tribunal did not have jurisdiction to entertain the application for review because there was no relevant Refugee Review Tribunal reviewable decision.

3. The applicant is a citizen of the People’s Republic of China. 

   
   

   He arrived in Australia on 2 February 2001.  On 15 March 2001 he applied for a protection visa.  That application was refused on

   
   

   16 May 2001.  On 8 June 2001, he applied to the Refugee Review Tribunal for a review of that decision.

4. The applicant worked as an editor and director with a song and dance ensemble in China from July 1989 to February 2001.  He obtained a visa to visit Australia in January 2001.  He entered Australia as part of a tour group.  At a time when he was able to obtain possession of his passport, he left the group at Brisbane airport.  He went to Sydney and after a month made contact with some people conducting Falun Gong exercises.  He sought a protection visa on the basis that he feared persecution if he were to return to China.  His fear of persecution, he said, arose from his practice of Falun Gong.

5. The applicant told the Court that he had obtained advice from a Chinese person called Zhu Lee whom he had met in February 2001.  He said that she prepared his application for a protection visa.  He said that the residential address given on his documents, which is an address in Northumberland Road, Auburn, was her address and not his address.  He said that he had lived in Burwood.

6. When his application for a protection visa was refused he obtained assistance to apply for a review of that decision.  In his application for review, his address was given as the Northumberland Road, Auburn, address.  His application was submitted under cover of a letter from a person named Mark Sutherland of the Shine Business Consultant Centre, in Harbour Street, Sydney.

7. The applicant has told the Court he did not know Mark Sutherland.

8. The application for review gave as its reason the words:

   Be afraid of being back.

9. On 19 April 2002, the Refugee Review Tribunal wrote to the applicant.  The Tribunal invited the applicant to attend a hearing on Monday,

   
   

   20 May 2002.  The Tribunal’s letter dated 19 April 2002 was sent to the applicant at the Auburn address.  A copy of that letter was sent to Mark Sutherland at the postal address in Haymarket.

10. The applicant says that he was not told by anyone that he had to attend a hearing of the Refugee Review Tribunal.  He did not attend the hearing.  The Tribunal noted that the applicant had not attended and proceeded to deal with his application without giving him the opportunity to attend a further hearing.

11. The Tribunal noted at page 56 of the Court Book that no response was received from either the applicant or his advisor. Accordingly, the Tribunal proceeded to exercise its power under s.426(A) of the Migration Act to make its decision without taking any further action to enable the applicant to appear.

12. The Tribunal member considered the applicant’s applications and the applicant’s typed statement.  On pages 50 through to 52 of the Court Book, the Tribunal quoted extensively from that statement. 

    
    

    The Tribunal member also referred to a note on the file of the Department of Immigration and Multicultural and Indigenous Affairs and listened to tapes of an interview conducted with the applicant on 26 April 2001.  The Tribunal also considered the Department’s decision record of 16 May 2001.  The Tribunal also considered the applicant’s application to the Refugee Review Tribunal.

13. On pages 55 and 56 of the Court Book the Tribunal considered independent information provided by the Department of Foreign Affairs and Trade which quoted from reports from some other countries.  The Tribunal found that the applicant’s claims were not credible because they were:

    Riddled with inconsistencies.

    Said Court Book, page 57.

14. Because of these inconsistencies that the Tribunal found, the Tribunal member did not accept that the applicant had ever been associated with Falun Gong or was wanted with the authorities in connection with Falun Gong.  The Tribunal was satisfied on the evidence before it that the applicant did not have a well-founded fear of persecution within the meaning of the convention.

15. The Tribunal affirmed the decision of the delegate not to grant a protection visa.  The applicant says that he did not receive a copy of that decision and did not know that his application had been refused until he was arrested and taken into immigration detention in September 2003.  The firm of Renzhou, lawyers, of Pitt Street, Sydney, lodged a further application to the Refugee Review Tribunal. 

    
    

    That application was lodged on 2 October 2003.

16. The application for the further Refugee Review Tribunal decision contained some more detailed reasons for making the application than the previous one had.  A copy of those reasons appears at page 63 of the Court Book.  The applicant said in that application that he had consulted Mrs Juliana Xian Zhu, formerly Zhu Xian Wang of Sydney Migration Service Centre in Sussex Street, Sydney.  He said that she advised him to lodge an application for a protection visa.  He asserted that he had paid her US$500.00.

17. The applicant said that after he was interviewed on 26 April 2001 by the Department of Immigration and Multicultural and Indigenous Affairs, Mrs Zhu told him that he had obtained a protection visa and would not have to worry anymore.  He also said that since then he had never received any letters from her and thought that he was a legal migrant in possession of a protection visa.

18. The Refugee Review Tribunal case notes of 3 October 2003 appear at 67 of the Court Book.  Those notes say:

    2 October 2003.  Applicant has appeared previously before Tribunal.

19. The notes also showed that a decision was made on 21 May 2002 and was notified on 12 June 2002.  The notes go on to say:

    He has now lodged an application with Refugee Review Tribunal.  He has no principle decision to appeal or notification date.

20. The Tribunal wrote to the applicant on 7 October 2003, enclosing a copy of a decision and reasons for that decision. The decision noted that the applicant did not include any information about any Refugee Review Tribunal reviewable decision. The Tribunal noted at page 70 of the Court Book that the Tribunal’s jurisdiction arises if a valued application is made under s.412 of the Migration Act for review of an Refugee Review Tribunal reviewable decision, see s.414 of the Migration Act. The Tribunal noted that Refugee Review Tribunal reviewable decisions are defined in s.411 of the Migration Act.

21. The Tribunal’s reasons for its decision appear on pages 70 and 71 of the Court Book.  I quote those reasons in full.

    There has already been a decision by the Tribunal (differently constituted) in relation to the Department’s decision of
    16 May 2001.  There is no claim or information or evidence before the Tribunal that there has been any subsequent decision to refuse to grant a protection visa or any other RRT reviewable decision.  Because there is no RRT reviewable decision there can be no valid application for review.

22. In my view, the reasons given by the Refugee Review Tribunal on 7 October 2003 accurately set out the situation.  There is no reviewable error in respect of the Refugee Review Tribunal decision made on 7 October 2003.  It is quite clear that the Tribunal did not have the jurisdiction to entertain the application as there was no relevant Refugee Review Tribunal reviewable decision.

23. Turning to the earlier decision by the Refugee Review Tribunal,

    
    

    it seems unfortunate, to say the least, that the applicant did not attend the Tribunal hearing.  Had he attended the hearing he would have had the opportunity to give evidence in support of his claim.  If the applicant’s assertions about the woman whom he says advised him in 2001 are correct, then he has been seriously misled.  There is no evidence before me that allows me to make any finding as to whether the applicant has been misled, as he says, or whether he just failed to keep in contact with a legitimate migration advisor.  It is certainly clear that the application for review filed on his behalf contained very little information that would have been of any assistance to the Tribunal.

24. I note that the Tribunal pointed out that it had received no response at all to its invitation to the applicant to attend the hearing. There is no evidence that the letters to the applicant, or his advisor, were returned unclaimed. In my view the Tribunal did not fall into error in deciding to deal with the matter under the provisions of s.426(A) of the Migration Act and not schedule a further hearing.

25. The application filed by the applicant on 19 May 2005 contains no grounds at all.  All it says is the following:

    The applicant claims, “I think I have real and well-founded fear for persecution if returned to China and I am a member of a special social group who can meet the concept of refugee convention.  The grounds of the application are both the DIMIA and RRT did not properly process by application.  I wish Federal Court could review my case thoroughly and give me a fair judgment.”

26. The material before the Court does not support the applicant’s claim that neither the Department nor the Refugee Review Tribunal did not properly process his application.

27. The applicant has been in immigration detention since September 2003.  He did not give a satisfactory explanation as to why he did not lodge this application until 19 May 2005.  He was given some legal advice by a barrister under the scheme that is available to assist applicants in review of Refugee Review Tribunal decisions. 

    
    

    The barrister apparently spoke to him at the detention centre on one occasion.

28. I note from paragraph 2 of an affidavit sworn 9 September 2005 by

    
    

    Zac Charmi, a solicitor for the respondent that an unsworn affidavit by the applicant was emailed to another solicitor in the firm of solicitors who are on the record for the respondent Minister.  That unsworn affidavit is not in evidence before me.  The applicant says that he has never seen it.  In view of the fact that the applicant says that he has never seen this unsworn affidavit I cannot give it any weight whatsoever, nor does there seem to me to be any reason why the document can be received in Court.

29. The applicant has told the Court about what he says are the circumstances of his dealings with people who advised him when he came to Australia. I can take the matter no further and, in my view, the material before me does not disclose any reviewable error on the part of the Refugee Review Tribunal. The two decisions by the Refugee Review Tribunal are, to my mind, privative clause decisions as covered by s.474 of the Migration Act.

1. Counsel for the respondent seeks an order for costs in the fixed sum of $5,000.00.  It is the usual practice that a successful party in proceedings in this jurisdiction can expect to receive an order for party and party costs.  In this case, I note that the applicant has now been in the immigration detention centre for two years.  Mr Beech-Jones, of counsel, has quite frankly conceded that the prospects of recovery of that amount are virtually non-existent.

2. The financial circumstances of a party are not normally a matter that would be taken into account in determining whether or not a successful party should receive the benefit of a costs order even though they may well be matters to which the Court would give significant consideration when dealing with time to pay those costs.

3. In this case, however, the fact that the applicant has been in immigration detention for some two years leads me to the belief that an order for costs would be virtually pointless.  No matter what amount of costs the Court were to award, there would seem to be no benefit at all in making any effort or expending any money in an effort to obtain payment of those costs.

4. In my view, this is an unusual case and whilst there does not appear to me to be any ground for criticising the first respondent Minister, or indeed the second respondent Refugee Review Tribunal in respect of the proceedings before me, it is a matter where I do not consider there is anything to be gained in exercising my discretion to make a costs order.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  28 September 2005