SZGLB v Minister for Immigration

[2005] FMCA 1644

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGLB v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1644

MIGRATION – Visa – protection (class XA) 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 – where applicant did not attend the RRT hearing – merits review impermissible – claim that RRT did not understand applicant’s claim – claim that RRT failed to make a proper investigation.

PRACTICE & PROCEDURE – Notice of Objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision – where decision handed down on 12 January 2004 – where application for judicial review filed on 30 May 2005.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss 426A, 474, 477(1A)

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
VCAK of 2002 v Minister for Immigration & Multicultural Affairs [2004] FCA 459 at [27]
W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407
WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277

Applicant: SZGLB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1397 of 2005

Judgment of: Scarlett FM

Hearing date: 14 October 2005

Date of Last Submission: 14 October 2005

Delivered at: Sydney

Delivered on: 14 October 2005

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondent: Mr Potts

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The application is not competent.

3. The Applicant is to pay the first Respondent’s costs fixed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1397 of 2005

SZGLB

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 the decision of the Refugee Review Tribunal that was made on 12^th January 2004.  The decision was handed down on 3^rd February 2004.

2. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

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

   
   

   He arrived in Australia on 23^rd February 2002, but he did not lodge an application for a protection visa until 2^nd April 2003.  That application was refused on 14^th April 2003.

4. The applicant then applied to the Refugee Review Tribunal for a review of that decision.  The applicant says that he went to a migration agent in Chinatown but he cannot remember the address. 

   
   

   He remembers that the person that he saw was a man whose surname was Lu.

5. The application for review contained in section B the applicant’s residential address in a Sydney suburb and a mailing address: Post Office Box K412, Haymarket.  The applicant believes that that is the Post Office box number of the migration agent to whom he paid a sum of money.  I believe that to be a likely explanation.

6. The person who completed the applicant’s application did not complete section C, which is the section for an applicant to nominate a person to receive correspondence and act on the applicant’s behalf.  That was left blank.

7. The Tribunal wrote to the applicant on 30^th October 2003 at both addresses.  The Tribunal invited the applicant to give oral evidence at a hearing scheduled for 10^th December 2003.  No response was received and the letters were not returned unclaimed.

8. The Tribunal wrote to the applicant at the same addresses on

   
   

   3^rd December 2003 advising that the hearing had been re-scheduled to 7^th January 2004.

9. The decision of the Refugee Review Tribunal, at page 71 of the Court Book, says that at the time of signing the decision, which I note was 12^th January 2004, the letters had not been returned unclaimed.

10. The applicant did not attend the Tribunal hearing. The Tribunal then made a decision under s. 426A of the Migration Act, to make its decision on the review without taking any further action to enable the applicant to appear. In my view the Tribunal was entitled to act in this way.

11. The Tribunal member examined the information provided by the applicant as well as the Department’s file and the material referred to in the delegate’s decision.  The Tribunal noted that the applicant claimed that he had been persecuted in China because of his practise of Falun Gong.  The Tribunal noticed his claims that he had been severely beaten and had gone on a hunger strike.  This led to his being violently force-fed.

12. The Tribunal, in its findings and reasons, accepted that the applicant was a citizen of China, but after consideration of his claims, was not satisfied that he had a well-founded fear of persecution.

13. The Tribunal found the applicant’s claims to be unclear, vague and inconsistent.  The Tribunal, at page 73, doubted the veracity of the applicant’s claims, claim that he did not apply for a protection visa until well over a year after he arrived in Australia and noted that the applicant did not address that issue when he sought a review.

14. The applicant told the Court that he was not aware that he had to attend the hearing.  Indeed, letters sent to his home address were later returned unclaimed.  The applicant says that at the relevant time he was working in the Blue Mountains, although he had left a mobile telephone number with the migration agent.  The applicant said that he did not at any time contact the migration agent to find out about the progress of his case.

15. Eventually in February of this year, on 9^th February, the applicant came under notice from the police in respect of a minor traffic matter. 

    
    

    After the police made inquiries as to his identity, he was arrested and taken into immigration detention.  He did not commence proceedings in this Court until 30^th May 2005.  He did this after he said that a number of Chinese officials visited the immigration detention centre at Villawood on 18^th May and spoke to various inmates individually. 

    
    

    He said that they taped the question and answer sessions.

16. The applicant feared that he would be forcibly deported, to use his words, very soon so he obtained assistance to make an application to the Court.

17. The applicant has submitted a written application, setting out three grounds.  The first is no more than a challenge to the merits of the Tribunal’s decision.  It is nothing more than a claim that if he returns to China, he will be at risk of suffering persecution.  In my view that is a challenge to the decision of the Tribunal and it is impermissible for the Court to conduct a merits review.  The ground will fail because, in my view, given the falsity of the evidence that was before the Tribunal, the Tribunal had little choice but to accept that it could not be satisfied about the veracity of the applicant’s claims.

18. The second ground was that the applicant said that the Tribunal failed to understand his claim and failed to consider relevant matters. 

    
    

    When asked to explain this, the applicant said that the Tribunal did not give him a hearing.  The fact is that the Tribunal scheduled a hearing and the applicant did not attend.  If there were relevant matters that were not considered by the Tribunal, then the applicant did not bring them to the Tribunal’s attention.

19. The third ground is as follows:

    The respondent refused to grant my protection visa application without any proper grounds and proper investigation.

    The Tribunal has no duty to investigate or any duty to consider using its powers to conduct an investigation.  It is up to the applicant to provide the necessary information to enable the Tribunal to be satisfied.  I was referred to the decisions of VCAK of 2002 v Minister for Immigration and Multicultural Affairs [2004] FCA  459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25] and W389/01A v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 407 at [74] – [78].

20. It is also a misunderstanding of the role of the Tribunal to submit that the Tribunal did not have proper grounds for rejecting an application. It is an obligation on the Tribunal if proper evidence, or sufficient evidence is not provided, then the Tribunal has no option except that it cannot be satisfied that the applicant meets the criteria for a protection visa. I refer to s.65 of the Migration Act.

21. In my view the application fails as there is no reviewable error. 

    
    

    My own reading of the Tribunal’s decision, bearing in mind that the applicant is not legally represented, does not disclose any jurisdictional error and I am satisfied that there is none.

22. The decision is therefore a privative clause attracting the protection of s.474 of the Migration Act.

23. The respondent minister has filed a notice of objection to competency.  The notice of objection to competency must succeed.  I have found that that the decision is a privative clause decision and under

    
    

    sub-s.477(1A) of the Migration Act an application to the Federal Magistrates Court must be made within 28 days of the date of notification or deemed notification of the decision of the Refugee Review Tribunal.

24. This application is out of time.  The decision was handed down on

    
    

    3^rd February 2004 and the applicant did not lodge his application until 30^th May 2005. The application is over a year out of time. The Court has no power under s.477 of the Migration Act to extend the time.

25. It follows then that the application is not competent as the decision is a privative clause decision and the Court has no jurisdiction.

26. I find, first of all, that the application will be dismissed and I will also find that the application is not competent.

27. There is an application for costs.  The applicant has been wholly unsuccessful in his claim and I have found in fact that the application is not competent. This is an appropriate matter where the respondent Minster should be entitled to an order for costs.

28. The amount of $4,000.00 which is sought, inclusive of counsel’s fees is calculated on a party and party basis and in my view is well within the range contemplated by the Federal Magistrates Court Rules, sch. 1. 

29. The application is removed from the list of cases awaiting finalisation. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  30 October 2005