SZGNZ v Minister for Immigration
[2006] FMCA 200
•3 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGNZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 200 |
| MIGRATION – RRT decision – inadequate visa application – no attendance at hearing – no error affecting the Tribunal’s decision. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425A, 426A, 426A(1), 441A(4), 441C(4), 441G(1), 441G(2), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), reg.4.35D
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407
| Applicant: | SZGNZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1584 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 3 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1584 of 2005
| SZGNZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 17 June 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 April 2005 and handed down on 11 May 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia in October 2004. On 29 November 2004, an application for a protection visa was lodged in his name with the assistance of a migration agent, Ms Grace X Chen. The questions seeking to elicit the applicant’s claims for refugee protection were completed as follows:
39I am seeking protection in Australia so that I do not have to go back to
PR China.
40Why did you leave that country?
In order to escape from further persecution in China.
41What do you fear may happen to you if you go back to that country?
I fear that if I were to return to China, the Chinese authorities would arrest me and sentence me to imprisonment, or even worse, they could detain me illegally without trial or legal verdict.
My fear is well‑founded. My fear comes from my experience in China and the persecution my group members have been suffering from.
I fear that I would be deprived of my human rights for life. I would lose my rights to seek employment and my rights to make a living in China.
42Who do you think may harm/mistreat you if you go back?
The Chinese authorities represented by various levels of leaders, local police & public security bureau.
43Why do you think this will happen to you if you go back?
Because two of my group members in Falungong have been arrested and I was in the same group doing the same things together.
The PSB and local police have asked my family members to call me back for further investigation and interrogations.
44Do you think the authorities of that country can and will protect you if you go back? If not, why not?
Of course not. On the contrary, they will persecute me much more severely than ever before.
I have been participating in Falungong activities in Australia since my arrival last month. My new “crimes” would be added to my “old offences” when I return to China.
Manifestly, these claims were made with inadequate details. The application itself recognised this. Under the heading “Documents you will provide later” has been inserted: “some evidence of persecution and detailed statement of claims”. However, no such evidence nor statement of claims were ever forwarded to the Department nor to the Tribunal.
A delegate refused the application on 31 December 2004. His decision and his reasons were posted to the applicant at his own address, as well as to his agent. In his reasons, the delegate drew attention to the absence of proof that the applicant was a practitioner of Falun Gong, and was not satisfied that the applicant satisfied the definition of refugee.
The applicant lodged an application for review by the Refugee Review Tribunal on 9 February 2005. His application appointed Ms Chen as his agent authorised to act on his behalf, and requested that correspondence about his application should be sent to her. The Tribunal did send to the agent on 11 February 2005 an acknowledgment of the application, expressly drawing attention to the fact that no correspondence would be sent to the applicant himself. Ms Chen was told: “it is important that you tell the review applicant about all future correspondence”.
A letter dated 9 March 2005 was sent to Ms Chen with the message:
As the authorised recipient, all correspondence in this case will be sent to you as requested by [the applicant]. Please note that [the applicant] has not been sent a copy of this letter. It is important that you tell the review applicant about the contents of this letter.
The letter informed the applicant that:
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.
It invited the applicant to attend a hearing to give evidence and present arguments in support of his claims. The hearing was appointed for 15 April 2005, and the letter informed the applicant:
If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.
In its statement of reasons, the Tribunal referred to the sending of this letter by registered post to the adviser and continued:
On 23 March 2005, the Tribunal contacted the applicant’s advisor requesting a response to the hearing invitation. No response to the hearing invitation was received by the Tribunal.
The applicant did not attend the hearing listed on 15 April 2005 and the Tribunal has no explanation.
In accordance with Section 426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
I am satisfied that the Tribunal had power under s.426A(1) in the circumstances it referred to, to “make a decision on the review without taking any further action to allow or enable the applicant to appear before it”. The letter inviting the applicant complied with the requirements of s.425A and the posting provisions in ss.441A(4), 441C(4) and reg.4.35D of the Migration Regulations 1994 (Cth). Pursuant to s.441G(1), the giving of the notice to the applicant’s authorised recipient was a requirement, and this has been done. That provision says:
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Section 441G(2) provides:
if the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the documents.
However, there is no provision requiring the Tribunal to give the applicant a copy in those circumstances.
The applicant has not contended in this Court that he did not receive notice of the hearing via his agent. However, even if he did not receive actual notice of the hearing, there are now clear authorities that indicate that the Tribunal’s power under s.426A(1) remains available, and the Tribunal makes no jurisdictional error by proceeding to exercise it in circumstances such as the present (see VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [16]).
Under the heading “Findings and Reasons”, the Tribunal’s reasons for affirming the delegate’s decision are unsurprising. It said:
The applicant’s claims are extremely vague and general. The applicant has not provided details relating to many aspects of his claims. Of particular importance is that the applicant has not provided any details about how and when he practiced Falun Gong. He merely claimed that he was a practitioner.
Other aspects of his claims are referred to by the Tribunal which caused it not to be satisfied that the applicant’s claims were true. It concluded:
On the basis of the available information, the Tribunal is not satisfied that the applicant had suffered any Convention‑related harm, nor is the Tribunal satisfied that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future.
Therefore, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for a Convention related reason.
I can find no error, jurisdictional or otherwise, in the Tribunal reasoning in that manner.
The applicant’s application in this Court contains one “particular” of the claim that the Tribunal’s decision involved an error of law:
The Tribunal misconstrued or misapplied the law concerning its determination.
That contention has no meaning for the Court, because it gives no specific argument allowing it to be understood. The same contention is made in two amended applications filed by the applicant in largely similar terms, but equally without particulars.
There is also the curious complaint:
I do not have funds to prepare the RRT transcript, I would like the RRT or the Respondent to provide me a RRT transcript if possible.
However, in the absence of a hearing, there cannot be a transcript.
There is a suggestion that the Tribunal did not consider and assess the applicant’s claims, but I do not accept this. The Tribunal identified the claims made, and attempted to assess them. It could not be satisfied with them because of their apparent lack of details giving them any substance.
The amended applications assert that the applicant has not received free legal advice, but I am not satisfied that that is true. The Court’s file indicates that a referral for legal advice occurred in July 2005.
The applicant attended today but has had nothing to say to me.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. It is therefore a privative clause decision within s.474(1), and I dismiss the application.
RECORDED : NOT TRANSCRIBED
In relation to a costs order, the applicant has told me that he has no job and no income. I can understand that he might feel that he would not be able to pay an order for costs. The effect of such an order is to create a debt, and it is a matter for the Department of Immigration as to how they try to recover it. Obviously, if the applicant does not have money, then it cannot be recovered and the taxpayers of Australia will have to pay for the Court case. However, I propose to make an order in accordance with the usual rule, and to show the serious nature of coming to Court.
I certify that the preceding twenty‑six (26) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 16 February 2006
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