SZGUZ v Minister for Immigration

Case •

[2006] FMCA 1382

•

7 September 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGUZ & MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1382
MIGRATION – Review of decision by Refugee Review Tribunal – applicant did not attend hearing before Refugee Review Tribunal after completing ‘Response to Hearing Invitation’ form – applicant alleges that the signature on the completed ‘Response to Hearing Invitation’ form is not his – whether Refugee Review Tribunal breached s.426A of Migration Act 1958 (Cth) – applicant made inconsistent claims in his protection visa application and his application for review before the Refugee Review Tribunal – whether Refugee Review Tribunal breached s.424A(1) of Migration Act 1958 (Cth).
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36; 65; 424A(1); 424A(3)(b); 425A; 425(2)(b); 426A; 441G; 474; pt.8 div.2
Federal Magistrates Court Rules 2001, sch.1
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
SZEGX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 166
SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 494
Applicant: SZGUZ
First Respondent:

MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG1950 of 2005
Judgment of: Emmett FM
Hearing date: 7 September 2006
Date of last submission: 7 September 2006
Delivered at: Sydney
Delivered on: 7 September 2006

REPRESENTATION

The Applicant appearing on his own behalf
Counsel for the Respondent: Mr T. Reilly
Solicitors for the Respondent: Mr A. J. Crockett, Australian Government Solicitor

ORDERS

(1)The applicant pay the first respondent’s costs in the amount of $5000.

(1)The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1950 of 2005

SZGUZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 May 2005.  The Tribunal decision affirmed a decision of the Delegate of the first respondent (“the Delegate”) dated 22 February 2005.

  2. The applicant was born on 18 October 1971 and claims to be from the People’s Republic of China (“the PRC”). 

  3. The applicant arrived in Australia on 20 December 2004, having legally departed from Guang Zhou on a passport issued in his own name and a visa issued on 8 December 2004. 

  4. On 20 January 2005, the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). 

  5. In his protection visa application the applicant claimed that he feared persecution by the Public Security Bureau (“the PSB”) because of his position as editor of a magazine that published articles dealing with human rights abuse in the PRC and other matters that were “quite sensitive to PRC authorities.”  The applicant claimed that in November 2004, the PSB arrested two writers of the magazine and confiscated the magazine. 

  6. On 22 February 2005, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations. 

  7. On 23 March 2005, the applicant lodged an application for review of the Delegate’s decision.  In a statement filed in support of his application for review by the Tribunal, the Tribunal noted that the applicant submitted a different set of facts, claiming that he was a sales representative for a company that brought him into contact with Taiwanese clients, which led to him becoming a supporter of Taiwanese independence, as a result of which he participated in overt actions, including demonstrations.

  8. In that submission the applicant did not refer to having been a researcher and made no reference to magazines or to Falun Gong.  Further, in his statement in support of his review application, he claimed that he escaped the PRC by bribing officers at the airport.  However, in his protection visa application, he claimed that he had encountered no difficulty departing the PRC legally with official authorisation.

  9. On 12 May 2005, the Tribunal sent to the applicant an invitation to attend a hearing on 14 June 2005.  The letter informed the applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.  The Tribunal invited the applicant to come to a hearing and give oral evidence and present arguments in support of his claim.

  10. The letter informed the applicant that the Tribunal would only change the hearing date for good reason and that if he thought he may be able to attend the hearing, he must contact the Tribunal immediately, and if he did not attend the hearing, and the Tribunal did not postpone the hearing, a decision could be made in his case without further notice.  The letter went on to ask the applicant to complete a ‘’Response to Hearing Invitation’ form and to send any new documents or written arguments he wished the Tribunal to consider.

1.On 31 May 2005, the ‘Response to Hearing Invitation’ form was signed and returned to the Tribunal, indicating that the applicant did not wish to come to a hearing.  The applicant stated that he did not sign that form.  However, the applicant had nominated an authorised recipient in respect of his dealings with the Tribunal. 

  1. In thoese circumstances, s.441G of the Act requires all correspondence to be sent to the applicant’s authorised recipient.

  2. The ‘Response to Hearing Invitation’ form also made it clear that, in the event that the applicant indicated that he did not wish to come to a hearing, he was consenting to the Tribunal proceeding in making a decision on the review without taking any further action to allow or enable him to appear before it.

  3. On 31 May 2005, the Tribunal proceeded with its review, noting that the applicant had declined an invitation to attend a hearing. In the circumstances, the Tribunal was entitled to proceed with its review pursuant to s.425(2)(b) of the Act.

  4. The Tribunal accepted that the applicant is a national of the PRC and noted that:

    “Whether the Tribunal regards his earlier claims or his later claims as his claims, they are unsupported and lacking implausible [I assume that “implausible” should in fact read “in plausible”] detail to such an extent that the Tribunal is not satisfied that either story is genuine.”

1.I assume that “implausible” should in fact read “in plausible”, two separate words, and there is a “[sic]”. 

  1. The Tribunal went on to note that the fact that there were two sets of mutually exclusive claims was “bizarre”.  The Tribunal noted that each story had its own inconsistencies within the story and that neither account was sufficiently detailed or supported.  The Tribunal went on to give examples of inconsistencies contained within each of the statements. 

  2. The Tribunal concluded that it was not satisfied that the applicant faced a real chance of Convention-related persecution in the PRC and was therefore not satisfied that the applicant has a well-founded fear of persecution in the PRC for a Convention-related reason.  For those reasons, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

  3. On 22 July 2005, the applicant filed an application seeking judicial review of the Tribunal decision in this Court.  On 23 September 2005, the applicant filed an amended application that incorporates the grounds made in the initiating application. 

  4. I have proceeded with the hearing on the basis that it is the amended application upon which the applicant relies.  In any event, I and am satisfied that there is no other ground contained in the original application that is not otherwise covered by the amended application.

  5. The grounds identified in the amended application are in the following terms:, and I refer to them as if they were set out here in full.

    “1. The RRT acted in breach of s426A as the applicant was denied a hearing through no fault of his own.

    The Tribunal alleged that on 31 May 2005, the applicant sent a response to the Tribunal declining the hearing invitation.

    The applicant claims that he has not made such response. The signature on the “Response to Hearing Invitation” dated 31 May 2005 was not his signature. The Tribunal failed to check the signature.

    2. The Tribunal failed to invite the applicant to comment on information why the claims he made to DIMIA and to RRT was different. This information is important as it made the Tribunal not to accept the applicant’s credibility. The applicant claims that the discrepancy was due to his previous migration agent’s mistake.”

  6. The applicant was unrepresented before the Court this morning, although he had the assistance of a Mandarin interpreter.  Despite being given several opportunities, the applicant had nothing to say in support of either ground.  Each of the grounds was read to him, and he was offered an opportunity to apply to give evidence in support of his application, particularly, where he had asserted that the signature on his ‘Response to Hearing Invitation’ form was not his and that any discrepancy in respect of his statements was due to his previous migration agent’s mistake.  Other than asserting those claims to be the fact, the applicant did not seek to give evidence.

  7. I shall now consider each of the grounds. 

Ground 1

  1. In relation to ground 1, the applicant alleges a breach of s.426A of the Act. This ground is misconceived because s.426A relates to an exercise by the Tribunal of its discretion to proceed in the absence of an applicant who has either indicated that he wished to attend a hearing or has declined to complete the ‘Response to Hearing Invitation’ form.

  2. Section 425(2)(b) provides that the Tribunal is not required to invite the applicant to appear before it or give evidence and present arguments where the applicant has consented to the Tribunal deciding the review without the applicant appearing before it. In fact, the Tribunal had taken the step of inviting the applicant to appear before it, in accordance with s.425A of the Act. Upon receipt of the ‘Response to Hearing Invitation’ form indicating that the applicant did not wish to attend the hearing, the Tribunal was entitled to proceed with its review without taking any further step to invite the applicant to attend a hearing.

  3. I have already stated the applicant declined to give evidence about his assertion, in his amended application, that it was not his signature on the ’Response to Hearing Invitation’ form.  However, whilst he declined that invitation, merely he confirming confirmed again that it was not his signature.  Even if that were the case, I note that the applicant had an authorised recipient and there is no evidence before me from that authorised recipient. to suggest that the ‘Response to Hearing Invitation’ form was not sent by or on behalf of the applicant.

  4. Even if the ‘Response to Hearing Invitation’ form was not signed by or on behalf of the applicant, there is no evidence to suggest that the Tribunal was aware of any such fact.

  5. In those circumstances, even if the ‘Response to Hearing Invitation’ form was signed without the applicant’s knowledge or consent, it could not amount to jurisdictional error.  As the first respondent correctly submitted, even if the applicant had no hand in the completion of the ‘Response to Hearing Invitation’ form whatsoever, the only result could have been that the applicant was out of time to review the Delegate’s decision. 

  6. Accordingly, ground 1 is not made out.

Ground 2

  1. Ground 2 appears to be a complaint that the Tribunal failed to invite the applicant to comment on the reasons why he may have made different statements to both the Department and the Tribunal.  There are no particulars of this ground.  Insofar as this ground may beIf this is an allegation of a breach of s.424A(1) of the Act, then this ground is misconceived because it is only in the event that the Tribunal made usehad regard to of any inconsistency in those statements as part of the its reason for the Tribunal affirming the decision under review, that there could be a breach of s.424A(1) of the Act.

  2. A fair analysis of the Tribunal’s decision makes it clear that the Tribunal did not have any regard to any inconsistency per se between each of the statements given by the applicant first in support of his protection visa application and then in support of his review application.,
    only The Tribunal only had regard to internal inconsistencies and the fact that each story was not sufficient, by itself, to satisfy the Tribunal of the applicant’s claims. 

  3. The first respondent submits that, in the circumstances, the difference in the two stories is not of itself information. Further, in respect of the assertions made in the statement in support of his review application, any such information is excluded from the requirements of s.424A(1) of the Act, by the operation of s.424A(3)(b) of the Act, because the applicant gave that information to the Tribunal for the purposes of his review. 

  4. The Tribunal’s consideration of the applicant’s claims in his statement in support of his protection visa application was confined to the vague nature of the claims and is no more than thought process and, therefore, is not information capable of enlivening the requirements of s.424A(1) of the Act. (SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 per Bennett J at [23]; SZEGX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 166 per Moore J at [10]; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 per Allsop J at [9]-[14]; SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 494 per Jacobson at [48]-[49]).

  5. In the circumstances, to the extent that ground 2 is capable of being construed as a claim of a breach by the Tribunal of its obligations under s.424A(1), such a claim is not made out.

  6. Accordingly, ground 2 is rejected.

  7. It is clear that the Tribunal considered the claims made by the applicant in each of his statements and concluded that neither was sufficient for the Tribunal to reach the satisfaction required before a protection visa could be granted. Section 36 and s.65 of the Act make it clear that where the Tribunal is not so satisfied that an applicant has met the necessary criteria for refugee status, the Tribunal must refuse the application.

  8. The findings and conclusions of the Tribunal were otherwise open to it on the evidence and material before it, and the decision is not affected by jurisdictional error. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere, and the application is dismissed.

  9. The first respondent seeks costs, fixed in an amount of $5000.  I note that the old schedule of costs is relevant to this application.  I also note that pursuant to sch.Sch 1 of those the Federal Magistrates Court Rules 2001, the first respondent, without counsel’s fees, would be entitled to an amount in the order of $4000. 

  10. Accordingly, I am satisfied that the amount sought by the first respondent is reasonable in all the circumstances.

I certify that the preceding thirty--six seven (376) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  2214 September 2006

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