SZGSX v Minister for Immigration - [2005] FMCA 1755

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGSX v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1755

MIGRATION – RRT decision – claims of persecution in PRC as Falun Gong practitioner – did not attend Tribunal hearing – no error found.

Migration Act 1958 (Cth), ss.417, 425, 425A, 425A(2), 425A(3), 426A, 426A(1), 441(A), 441A(1), 441A(2), 474(1), 477(1A), 483A, Pt.8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 8(2)(b)
Migration Regulations 1994 (Cth), regs.4.35D, 5.03

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant:

SZGSX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1827 of 2005

Judgment of:

Smith FM

Hearing date:

15 November 2005

Delivered at:

Sydney

Delivered on:

15 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr T Reilly

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 $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1827 of 2005

SZGSX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 12 July 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 4 May 2001 and handed down on 24 May 2001. The Tribunal affirmed a decision made by a delegate on 15 September 2000, refusing to grant a protection visa to the applicant. The applicant claims that he arrived in Australia in October 1998 on a Malaysian passport which was subsequently stolen. He applied for a protection visa on 9 August 2000.
There is no evidence that the applicant engaged in any previous judicial review proceedings in relation to the Tribunal’s decision between the date of the Tribunal’s decision in 2001 and the date of his commencing the present proceeding in 2005. The consequence is that under transitional provisions of the legislation which inserted the current Part 8 provisions concerning “privative clause decisions” (see Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8(2)(b)), the Court is barred from giving relief in the present proceeding unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476).
The Minister has filed a Response, putting the applicant on notice that the Minister contends that relief is not only required to be refused under the s.477(1A) time limit in the absence of jurisdictional error, but also that the Court should in its discretion refuse to grant relief due to unwarranted delay, even if jurisdictional error were found.
The applicant’s delay was the subject of an affidavit sworn by him. This gives few details, but seeks to explain part of the delay by reference to a s.417 Ministerial appeal. The full circumstances of this are not in evidence before me, and for reasons which I shall explain below I have not found it necessary to explore the issue of delay. This is because I am satisfied that the Tribunal’s decision was not affected by jurisdictional error.
The applicant’s visa application did not disclose any assistance from a migration agent. In it, he gave a residential address at Lakemba and a mailing address in Pitt Street, Sydney. In answer to questions seeking the reasons why he claimed protection from Australia against being returned to his claimed country of nationality, The People’s Republic of China, the applicant in very general terms said:
I have to leave China to escape Chinese Authorities’ persecution for the following reasons:
(1)My Fa Lun Gong Religions Belief.
(2)My political opinions are different than the Chinese Authorities.
(3)I was discriminated against in my home town.
There was then reference to: “many people like me have been put in to jail because their are a Fa Lun Gong believer”, and also a claim: “I escaped from my home town since I was uncovered by the police”. The applicant claimed to have been: “a very activity member. I have developed many new member to joint our Fa Lun Gong Organization”. However, no details of his activities or persecution were ever given to the delegate nor to the Tribunal.
In his decision, the delegate noted that he was unable to:
test [the applicant’s] claims, or to clarify information which he has provided, in view of the fact that he failed to attend the interview arranged for him by an officer of this department on 24 August 2000, which indicates his unwillingness to have his identity and claims tested.
The delegate also noted that the applicant had been in Australia since a date prior to the commencement of the Chinese government arrests of Falun Gong members in July 1999.
The applicant appealed to the Refugee Review Tribunal on 20 October 2000, without appointing any person to act for him or receive correspondence. His application gave the previous Lakemba and Pitt Street, Sydney, home and postal addresses, and gave no contact telephone numbers. No further detail was included about his claims.
The Tribunal acknowledged the application in a letter dated 23 October 2000, and told him that it was important to tell the Tribunal if he changed his address.
On 1 March 2001, a letter was posted to the applicant at both the Pitt Street address and the Lakemba address. It informed the applicant:
The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims.
The applicant was told the hearing would be on Wednesday, 2 May 2001, thereby allowing a period of two months. He was told:
If you do not attend the hearing and a postponement has not been granted the Tribunal may make a decision on your case without further notice.
In its statement of reasons handed down on 24 May 2001, the Tribunal said:
On 1 March 2001 the Tribunal wrote to the applicant advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 2 May 2001. The applicant was advised that, if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. A copy of the letter was sent to the applicant’s residential address and his address for service. No response was received and the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.
A check of the Department’s records showed the same address as that held by the Tribunal. The applicant has not provided a telephone number on which he could be contacted. The letters sent to the applicant have not been returned by the post office and it appears, in these circumstances, that they were, in fact, sent to the correct address, and that they were received by the applicant. The Tribunal is satisfied that it has taken all reasonable steps to inform the applicant of his right to attend a hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
Section 426A at the time of the Tribunal’s decision was in the same terms as at present. It provides:
(1)If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Sections 425 and 425A required the Tribunal to invite an applicant to a hearing. The content of a notice of invitation was required pursuant to s.425A, which then provided:
(2)The notice must be given to the applicant by one of the methods specified in section 441A. …
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
Section 441A at the relevant time different to its present form, provided that a notice under s.425A was taken “to be duly given to an applicant for review if” it was “sent to” the last address for service or residential address provided by the applicant in connection with his application for review (see s.441A(1) and (2)).
The prescribed period for the purposes of s.425A(3) was at the relevant time found in then reg.4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”), which indicated a period of 14 days which “starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received”.
The date when the notice was “taken to be received” was provided under reg.5.03, which at the relevant time stated that:
a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is … 7 days after the date of the document; …
The effect of these provisions, in my opinion, is that the present invitation to the applicant was duly sent to his last service and residential addresses, and allowed a time which complied with the above provisions. I am therefore satisfied that the Tribunal had power to proceed under s.426A in the manner which it said it did.
The consequence of the absence of the applicant, was that the Tribunal was left with inadequate information upon which to be satisfied as to the applicant’s claims. It noted that he had “made only vague and general claims” and concluded:
The applicant has provided no detailed information to support his assertion that he decided to leave China in order to avoid persecution. In all the circumstances, the Tribunal does not accept that while in the PRC the applicant experienced harm amounting to persecution on account of his membership of Falun Gong; nor does it accept, on the basis of the evidence before it, that there is a real chance that he would if he returned now or in the reasonably foreseeable future.
The applicant has provided no details to support his claim that he is regarded as holding political opinions opposed to the government. It is not even clear whether he is referring to his Falun Gong activities, or to some other, unspecified, beliefs or activities. Accordingly the Tribunal is unable to be satisfied that he has a well founded fear of persecution in this regard.
The applicant has similarly failed to provide any information to support his claim that he was discriminated against in his home town. Accordingly the Tribunal cannot be satisfied that the applicant suffered discrimination of sufficient gravity as to be considered persecution.
I have considered the Tribunal’s reasoning and I am of the opinion that it was plainly open to the Tribunal. I am unable to identify any jurisdictional error affecting its reasoning or procedures.
The applicant in his application for review makes general claims of error of law by reason of failure to observe procedures, improper exercise of power, incorrect application of law, and there being “no evidence or the other material to justify the making of the decision”. However, no particulars of arguments supporting these contentions are given in his application, and the applicant was not able to raise any such argument in written or oral submissions. As I have indicated above, I have not been able to find any ground of jurisdictional error.
The applicant’s amended application specifies one ground:
The notice sent by the Tribunal to the applicant pursuant to the requirements of section 425A of the Migration Act 1958 (Cth) dated 1 March 2001 inviting the applicant to a hearing to be conducted by the Tribunal into the applicant’s claim for refugee status was never received by the applicant with the result that he was not aware of the hearing conducted by the Tribunal and was not able to provide answers to the concerns which the Tribunal had with his application and so was denied procedural fairness.
The applicant contended today that the two addresses given on his form were not his addresses, that his form was completed by a migration agent on his behalf, and that it was lodged by the Tribunal without his being aware of its contents. He claimed that it was the fault of the agent that he did not receive notice of the hearing. However, he did not point to any fault on the part of the Tribunal, nor any failure of procedure on its part. His assertions were not verified by affidavit, but for the purposes of this judgment I am prepared to assume that they may have been true.
However, even so, in my opinion, the Tribunal made no error in proceeding under s.426A(1) without taking further steps. Indeed, it is impossible to see what further steps the Tribunal could have taken. It was entitled to rely on the information provided in the forms lodged with it, and it was not on any notice of any inaccuracy in relation to those forms. They made no mention of the involvement of any agent.
As has been held on several occasions, the scheme of the provisions of the Act and Regulations provides for a deemed receipt of invitations to hearings and a power in the Tribunal to proceed in the absence of an applicant at a hearing so appointed. These provisions make it clear that the Tribunal is authorised to proceed under s.426A(1) in cases “involving no fault of the applicant” (see VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [15] and [16], and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12] and [13].
In the present case I do not consider that the Tribunal’s making of its decision in the absence of the applicant at a hearing was attended by any jurisdictional error.
In the absence of any other ground, I must therefore find that the Tribunal’s decision is a privative clause decision for which relief is barred under s.474(1), and I must dismiss the application.

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 1 December 2005