SZGNR v Minister for Immigration

[2005] FMCA 1166

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGNR v MINISTER FOR IMMIGRATION [2005] FMCA 1166

MIGRATION – Visa – protection visa Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister for Immigration not to grant the applicant a protection visa – applicant a citizen of China – claim of well-founded fear of persecution because of adherence to Falun Gong – where applicant did not attend the RRT hearing – claim of denial of natural justice – no basis for claim – no reviewable error – privative clause decision.

PRACTICE & PROCEDURE – Costs – the fact that an unsuccessful applicant has no funds is no bar to the making of a costs order – shortage of funds may be a ground for ordering time to pay – competence – where application filed out of time – application filed more than 28 days after notification of RRT decision.

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

Applicant: SZGNR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1559 of 2005

Delivered on: 4 August 2005

Delivered at: Sydney

Hearing date: 4 August 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Ms Quinn

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Application is dismissed.

2. The Application is not competent.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1559 of 2005

SZGNR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal that was made on 17 February 2004 and handed down on

   
   

   9 March 2004.  The decision of the Tribunal was to affirm a decision not to grant the Applicant a protection visa. 

2. This is a case where it appears that the Applicant may not have been well served by his migration agent.  He arrived in Australia from China on 1 March 2003 and on the next couple days he went to Chinatown to seek the services of a migration agent. He went to about six or seven and eventually settled on this particular agent.  The name of that agent is Wu Jing Xin. The Applicant actually dealt with a woman who was employed by the agent, whose name he believes to be Ms Chen. The migration agent prepared an application for a protection visa on behalf of the Applicant. In that application, the Applicant said that he feared he would be persecuted if he returned to China because he was a practitioner of Falun Gong. The Applicant does not read English and says that he signed the applications in blank. 

3. A type written statement was attached to the application purporting to give details of the Applicant's history of persecution in China. The Applicant says he was not aware of the contents of that statement until he obtained copies of the documentation from the Refugee Review Tribunal. He says that material referred to in the statement was incorrect and was not what he told the lady at the premises of the migration agent.

4. The Department of Immigration & Multicultural & Indigenous Affairs was not satisfied with the application and his application was refused.  The Applicant sought a review at the Refugee Review Tribunal. He says that the migration agent prepared the application for him and a copy of the application for review appears on pages 46 to 49 of the Court Book. I note that Section C of the application has been left blank.  That is the section that is used for an address for correspondence if someone other than the Applicant is assisting the Applicant. 

5. The Refugee Review Tribunal listed the application for hearing on Tuesday, 27 January 2004. The Tribunal wrote to the Applicant on

   
   

   9 December 2003 inviting him to attend that hearing. The letter was addressed to the Applicant at a post office box number in Haymarket that appeared on the application. The Tribunal did not receive any reply to the invitation to attend the hearing. The Applicant did not attend the hearing and it is clear from page 61 of the Court Book that the Tribunal tried to contact the Applicant by mail and by telephone without success.  The Tribunal said at page 61:

   No response was received. The letter to the Applicant's home address was returned marked "No such street number". The letter sent to the mailing address has not been returned. On

   
   

   24 December 2003 the Tribunal telephoned the applicant at the number provided in his application for review.  The number was not connected.

6. Because the Applicant did not attend the hearing and the Tribunal was not able to contact him, the Tribunal proceeded to decide the Applicant's claims on the basis of the written material. It is not surprising that the Tribunal was not satisfied that the Applicant had ever been a Falun Gong practitioner or that he had ever suffered harm as a result. The Tribunal affirmed the decision not to grant the Applicant a protection visa. 

7. The Applicant said that he tried to contact the migration agent on a number of occasions without success. He says that the migration agent told him not to attend the hearing and did not tell him the date of the hearing.  He last spoke to the agent in March of this year. The Applicant has been in immigration detention for about two months.  It was not until he was taken into detention that he lodged an application for review.  He says that he has received advice from people whilst he was in detention about the steps that he could take.  It appears to me that he has, on that information, not been well served by his migration agent and may have grounds for complaint.  I propose to direct that a copy of this decision be forwarded to the appropriate authority. 

8. I look at the Applicant's application for review.  There are four grounds set out in paragraphs 1 to 4.  Paragraph 1 does nothing more than set out that the Applicant claims to be a refugee.  Paragraph 2 says:

   Member of Refugee Review Tribunal failed to understand my claims and failed to consider relevant matters. Further particulars to be provided. 

9. The Applicant was not able to expand on this as the application was prepared for him by someone else.  My own reading of the Tribunal's decision does not indicate that the Tribunal failed to understand the nature of the Applicant's case or failed to consider relevant matters on the papers. It is noteworthy that the Applicant did not attend the hearing and the Tribunal was not able to obtain assistance from him. 

10. In paragraph 3 of the application the Applicant says that the Tribunal exceeded its jurisdiction in not according to him natural justice.  There is no evidence of a denial of natural justice and it seems to me that the Tribunal did all it could to try to contact the Applicant about the hearing. 

11. Paragraph 4 says:

    The Respondent [meaning the Refugee Review Tribunal] refused to grant my protection visa application without any proper grounds and proper investigation.

12. Quite clearly, this ground must fail. The Tribunal has provided details of the material upon which it relied to make its decision and the Tribunal is certainly not required to conduct its own independent investigation. In my view, the Tribunal did the best it could in considering the limited material before it.  There is no evidence of any denial of natural justice or of any jurisdictional error. 

13. I accept that the Applicant says that he has grounds for complaint against his migration agent.  He is certainly in a position to make a complaint about the agent but this does not establish any error on the part of the Refugee Review Tribunal. 

14. The decision is a privative clause decision. There is no reviewable error. The application is dismissed. I would also note that the application is not competent as the application for judicial review was not filed within 28 days of notification of the decision as required by sub-section 477(1)(A) of the Act. I will be ordering a transcript of my reasons for this decision.

15. There is an application for costs. The Applicant has been wholly unsuccessful.  He does not have any funds and he is in a detention centre.  A shortage of funds is not a ground for a Court to exercise the discretion not to make an order for costs, although it would appear to be a ground for making an order for time to pay. 

16. An amount of $3,000 is sought which to my mind is well within the scale of costs provided by the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  17 August 2005