SZHBK v Minister for Immigration

[2005] FMCA 1834

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHBK v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1834

MIGRATION – RRT decision – Chinese national fearing political persecution – did not receive notice of hearing – no denial of procedural fairness – six year delay before judicial review – application dismissed.

Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.425(1)(a), 426, 483A, Pt.8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 cl.8(2)(b)
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations (Cth), regs.4.39, 4.41

B41 of 2003 [2004] FCA 30
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Freeman v Health Insurance Commission (2004) 141 FCR 129
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773
Taylor v Taylor (1979) 143 CLR 1

Applicant: SZHBK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2451 of 2005

Judgment of: Smith FM

Hearing date: 8 December 2005

Delivered at: Sydney

Delivered on: 19 December 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms K Morgan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed. 

2. This order shall not take effect until 31 January 2006. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2451 of 2005

SZHBK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 1 September 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 10 December 1998.  The Tribunal affirmed a decision of a delegate made on 13 October 1997 which refused to grant a protection visa to the applicant. 

2. The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A and has restructured the Court’s jurisdiction in relation to migration decisions. However, these amendments apply only to proceedings commenced on or after 1 December 2005 and the repeal does not affect the present proceeding (see Sch.1 cl.41 and Acts Interpretation Act 1901 (Cth), s.8).

3. The Court has jurisdiction notwithstanding that it was established subsequent to the making of the decisions under review (see SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773). The amendments to the Migration Act which inserted the current privative clause provisions of Part 8 into the Act also occurred after the Tribunal’s decision, but they apply to the present application by reason of a transitional provision (see Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8(2)(b)). This is because the applicant had not commenced any judicial review proceedings in relation to the Tribunal’s decision prior to the present application.

4. The effect of the privative clause limitations is that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal, unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). I do not have power myself to decide whether the applicant’s claims should be believed nor whether he qualifies for a protection visa or any other permission to stay in Australia. The final decision on these matters is left to the administrative decision‑makers, including the Minister.

5. The more than six years delay before the applicant commenced proceedings for judicial review supports a submission by the Minister that the Court should in its discretion refuse relief, even if jurisdictional error were found.  I shall return to this submission below after considering the legality of the Tribunal’s decision. 

6. The applicant arrived in Australia in August 1997.  On 26 September 1997 he lodged an application for a protection visa, assisted by a migration agent, Chun George Ao.  The application gave a current residential address at Enmore.  Attached to the application was a typed statement containing his reasons for seeking protection in Australia from being returned to The People’s Republic of China. 

7. The statement referred to persecution of his family after the Communist revolution and during the cultural revolution.  It referred to a student democratic movement in 1986 and said: “I started active and organised speech again.  … I was again receiving checking and suppressing in the company (The first punishment was finished in 84)”.  It said: 

   In 1989 the death of Party’s former general secretary Mr Hu Yao Bang lead to the start of the students movement requesting for democracy and freedom.  This time I went to Beijing and contact the then students representatives and joined with the Beijing Workers’ Self‑government organised by the then president Han, Dong Fang (now is in exile in Hong Kong).  We organised Beijing residents to support the students and contact workers and citizens of all over China to support the students.  But this world famous student movement was put down by the massacre by the army sent by the Chinese Communist Party.  After escaping from Beijing to [city] I was dismissed from my company.  Our family survived with my wife’s poor wage. 

   In 1994 I joined in the China Democracy, Human Rights Federation organised by Wang Ruo Wang.  The head‑quarter is in U.S.A. and with branches all over the world.  From then I always desired to escape China.  Luckily this year one of my relative in Taiwan went back to China and after understanding my situation.  He help me with money and with this money I bribed many authorities to get a passport and visa then came to Australia. 

8. A delegate refused the application on 13 October 1997, and on 12 November 1997 an application for review was lodged with the Tribunal.  It gave the applicant’s previous home address at Enmore, and identified this as his “address for service”.  It gave no telephone number.  It identified Mr Ao as his advisor, and requested that copies of correspondence should “go to your adviser”.  It provided no additional information or material supporting the applicant’s refugee claims. 

9. Under statutory procedures which were then applicable, the Tribunal sent to the applicant at his Enmore address a “Notice under Section 426 of the Migration Act 1958” dated 13 October 1998.  This informed the applicant that the Tribunal was not prepared to make a favourable decision on the material, and requested that he tell it whether he wanted to come to the Tribunal to give oral evidence.  The letter was returned to the Tribunal marked “no such person at address”.  Although there is no direct evidence that it was also posted to the agent, I find that it was.  The letter itself contains a “cc” notation which suggests that this would happen, and a case note records a conversation with the applicant’s agent which confirms that it was received by the agent: 

   3/11/98  Adviser rang to say that the applicant had not received his offer of hearing letter.  He quoted me an address which was different to that on CMS.  I told him that if he could get us something to that effect in writing we would send out another letter as soon as possible.  He said that he would fax it to us.  I asked if the applicant had indicated if he would like to attend a hearing.  He said that the applicant had indicated that he would attend, but would like a copy of the letter.  MH. 

10. In the course of today’s hearing the applicant referred to this note and to the agent’s promise to fax to the Tribunal a new address for the applicant.  A call was made for production of such a fax and of all communications from the agent to the Tribunal, since the Court Book prepared by the Minister’s solicitor contains no evidence that, in fact, a change of address was ever recorded by or given to the Tribunal.  I was informed that no such documents existed on the Tribunal file which was in the possession of the Minister’s solicitor.  On the evidence before me, I find that although the Tribunal had notice that the applicant was not receiving some mail at the Enmore address, it never received a notification from the applicant or his agent of an alternative address for service. 

11. Provision for a written notice of a new address for service was made at that time in reg.4.39 of the Migration Regulations (Cth). 

12. Regulation 4.41 provided that documents required to be “given or served” by the Tribunal could be posted to such an address or, in its absence, “by giving it to the person personally or to a person duly authorised to receive documents on behalf of the first‑mentioned person” or “by posting it to the person at his or her last‑known place of residence”.  However, at that time neither the Act nor the Regulations contained any requirement on the Tribunal to “give or serve” notice of an invitation to attend a hearing in any particular form or manner. The only duty on the Tribunal in relation to notification of hearings was under s.425(1)(a), that it “must give the applicant an opportunity to appear before it to give evidence”. 

13. The applicant’s central complaint in his present judicial review application is that he “never received an offer from the RRT to attend his hearing nor was he advised of this by his agent”. The applicant prepared a written statement, which he adopted under oath and was cross‑examined upon. I accept that, in fact, he did not receive actual notice of an appointed hearing until it was too late for him to attend or request a rescheduling. However, the live issue is whether this was attended by circumstances which reveal a failure by the Tribunal to give the opportunity required by s.425(1)(a) when read with implications of procedural fairness.

14. The Tribunal posted a letter dated 6 November 1998 to the applicant’s Enmore address which appointed a hearing on 9 December 1998.  This was returned to the Tribunal on 12 November 1998.  The letter also has a “cc” notation suggesting an intention that it should be sent to the applicant’s agent, but there is no direct evidence that this occurred.  Nor is there express reference to this happening in a file note of a conversation between a Tribunal officer and the applicant’s agent on 23 November 1998: 

    231198  Called A/n’s adviser to inform him that the mail sent to the A/n’s last provided address in Enmore has been returned.  The Tribunal has not been told of any change of address in writing.  Adviser said that he has difficulty contacting his client as his client is always moving about and not informing him of any changes of address.  I told him that the A/n has the obligation to inform the Tribunal of any change of address and that if we don’t hear from him, the Tribunal will proceed to a decision on the material before it.  TVD. 

15. However, the sending of the previous letter and the contents of the above memo suggests to me that it is probable that the agent was sent a copy of the letter appointing the hearing, and that in this conversation reference was probably made to the future hearing date.  That the agent did receive notice of the hearing date is also confirmed by the applicant’s written account given to the Court of his dealings with his agents:  

    EXPLANATION CONCERNING MY NON‑APPEARANCE AT MY REFUGEE REVIEW TRIBUNAL HEARING 

    I am a citizen of The People’s Republic of China.  I arrived in Australia on 26^th August 1997.  On 26^th September 1997 I lodged an application for a Protection visa with DIMIA.  My migration agent was Chun George Ao of 340/401 Sussex Street, Sydney, although my case was handled by Mr Peter Zhu.  I talked with Mr Zhu for about one hour and paid him $500.  At his request I signed a blank form and he said he would write in the details of what we had discussed, as my application.  I was not given a copy of my protection application by my agent. 

    Mr Zhu suggested I use his business address as an address for contact on my protection application form, and I agreed.  When I did these things I believed Australia is a democratic and free country and that every officer was better than the ones in China. 

    After some days my agent called me to advise that my application for a protection visa (866) had been refused.  He asked me to apply to the Refugee Review Tribunal for a review of this decision.  He said he needed to see me again.  So I went to see him I paid $200 and signed some documents.  Everything proceeded much the same as the last interview with him.  Again I did not receive from Mr Zhu a copy of my application to the Refugee Review Tribunal. 

    However, a few days later, when I still had not heard from him I became very afraid. 

    Much later I went to his office.  Actually by coincidence it was exactly one day after my RRT hearing was scheduled but I did not know this.  Mr Zhu was not there but his wife met me and she introduced her assistant to me, Mr Yao.  She said her husband had gone to China.  She then asked me, “Why didn’t you go to your RRT hearing?”.  I answered her that it was because I didn’t get any information about it from her.  Then she asked Mr Yao to check some documents and they found some discrepancy.  Mrs Zhu became furious and said, “You changed your address, you must call us before two weeks.  Since you didn’t call and advise us we didn’t send the information to you.  You were wrong”, she screamed at me. 

    I felt in a daze but then I suddenly remembered that my postal address was my migration agent’s address and that this had been Mr Zhu’s idea.  Mrs Zhu checked the documents again and said I was right.  She calmed down a lot and then said to me that it was alright not to be at the RRT hearing, because if you go to it there would be trouble for you when the hearing finishes they will arrest you and take you into detention.  She then asked me to pay $400 for the costs of her writing to the Minister for Immigration and Indigenous and Multicultural Affairs.  This time I did not pay.  Instead I asked to have my file and all my protection visa application documents.  In reply Mrs Zhu said those documents were hers, and I could only look at them in her office but was not able to take them away.  I explained to her that my English was very poor and some of the documents I could not understand.  She responded, there was nothing she could do.  When I heard this I was very angry and told her this was not fair, I wanted to take away my own private documents.  She then threatened to call the police if I caused any trouble.  I was very angry and sad.  But there was nothing I could do so I left. 

16. The conversations recounted in this statement suggest that it was true that the agent had “difficulty contacting his client”, as the Tribunal was told, and for this reason had been unable to relay the appointment to the applicant.  The applicant did not clearly deny this in his evidence and submissions to me, although he sought to blame his agent for his failure to attend hearing.  He claimed that his agent had been “grossly irresponsible and dishonest in the handling of my case”, and sought to gain strength for his arguments from the fact that Mr Ao’s registration as a migration agent was cancelled in October 2001.  However, this was not based on the handling of the applicant’s case, and I draw no inference from this circumstance. 

17. On all the evidence before me, I find on the balance of probabilities that a significant reason for the applicant’s failure to receive notice of the hearing was his own failure to ensure that at all times his agent was able to communicate urgently with him, and that his agent was able to give up‑to‑date notice to the Tribunal of changes of his address for service.  It is possible that the applicant’s failure to have notice of the hearing was also due to a failure by his agent to take more active steps to locate and contact the applicant, but I have difficulty making such a finding on the available evidence.  I make a confident finding that the applicant’s absence was not due to any omission by the Tribunal to take reasonable steps on its part to bring the appointed hearing to the attention of the applicant and his appointed agent. 

18. There are authorities which hold that a denial of procedural fairness arising from the failure of an applicant to enjoy an opportunity to participate in a hearing can occur without fault on the part of the person conducting the hearing (c.f. Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 (“Clements”) at [30]‑[35]), and there are analogous situations in relation to court procedures (e.g. Taylor v Taylor (1979) 143 CLR 1, Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [22]). However, these suggest that such a denial would not be found if there was “fault of that party” (c.f. Clements (supra) at [33]), and a recent Full Court has suggested that mistakes by advisors in the conduct of their client’s case could not “amount to procedural unfairness” (see Freeman v Health Insurance Commission (2004) 141 FCR 129 at [50]‑[52], also B41 of 2003 [2004] FCA 30 at [23]‑[25]).

19. In the present case, I accept that the Court should consider all the information available to it when assessing whether the applicant was unfairly denied a reasonable opportunity to appear before the Tribunal.  However, on the evidence and my findings above, I am not persuaded that this occurred.  I consider that the applicant’s absence from the hearing was due to his own omissions. 

20. The Tribunal made its decision on the day after the appointed hearing.  In its statement of reasons, it referred to the absence of the applicant, and said: “this matter has therefore been determined on the evidence before the Tribunal”.  I consider that it was entitled so to proceed. 

21. It referred to the applicant’s claims and to country information concerning China’s treatment of political activists.  It pointed to obvious deficiencies in the applicant’s statement attached to his visa application, and concluded: 

    After considering all the information relevant to this matter, the Tribunal is not satisfied that the applicant is a political activist at risk of attracting the adverse attention of the PRC authorities.  Accordingly, as the Tribunal is not satisfied that the applicant is a political activist, it is also not satisfied that the applicant’s fear of persecution in China, due to his political opinion, is well‑founded. 

22. I can find no error in the Tribunal’s reasoning in this manner, and generally am unable to identify jurisdictional error affecting its decision to affirm the delegate’s decision. 

23. The application filed in this court does not raise any contention of jurisdictional error which I have not dealt with above.  Its contentions that the Tribunal failed to consider relevant matters, and improperly refused the application are without particulars and have no substance. 

24. As I have indicated, the applicant’s case presented in his written and oral submissions was that he was denied procedural fairness by not receiving notice of his hearing.  I have addressed and rejected this ground above. 

25. His written submission also contained a more detailed history to base his claims to be a refugee, and other material supporting his continued residence in Australia.  This material might be relevant to the consideration by the Minister of her discretions, but is not relevant to my consideration of whether the Tribunal’s decision was affected by jurisdictional error.  In the absence of such error, I must dismiss his application. 

26. This conclusion means that I do not need to examine whether relief should be refused on discretionary grounds.  However, this was a matter explored at the hearing, and I reached a clear opinion on it.  The applicant’s explanation for his delay was: 

    EXPLANATION OF DELAY IN BRINGING THIS APPLICATION FOR APPEAL 

    Since my migration agent served me so poorly in failing to advise me of the date of my RRT hearing and subsequently refusing to release to me my own private documents relating to my protection application this left me with a very heavy heart and planted the seed of distrust in me with Australian officials.  I did not know who I could trust to approach about my protection visa.  So I did not contact anyone, and did not get any further legal information. 

    On 28^th July 2005 I came to Villawood Detention Center.  I learned there that I had the right to apply to the Federal Court to appeal the decision in the RRT.  Subsequently I received ‘the Green Book’.  I read it carefully and that is how I first discovered that what I had said to my agent concerning my original application for protection, and what my agent wrote down in my application was very very different. 

    It was only when I went to the detention center that I learned that I could take my case further by appealing to the Federal Court and that is why there is a delay in making this appeal. 

1. I found his explanation for inactivity lasting for more than six years unpersuasive, even giving every allowance for the applicant’s cultural and other difficulties.  I have great difficulty accepting that the applicant was unaware prior to his detention in Villawood that he could obtain professional advice on his immigration status and his ability to explore the legality of the Tribunal’s decision.  In the absence of detailed explanations by him of how he could have remained in such ignorance for six years, I prefer to conclude that the applicant decided to continue illegally in Australia without seeking to challenge the legality of the Tribunal’s decision and would not have decided otherwise if he had not faced imminent deportation. 

2. In my opinion, his delay was unwarranted.  Giving every allowance for his personal situation, I do not consider that it is a delay which the Court should overlook.  McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495, has pointed out that:

   Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered.  Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. 

3. I would therefore have refused relief even if I had found jurisdictional error affecting the Tribunal decision. 

4. The hearing of this application was expedited by me at a first court date on 5 October 2005.  On that occasion, the applicant indicated a desire to obtain free legal advice under a scheme administered by the Federal Court Registry, and his request was forwarded by my Associate to the Registry on the same day.  Most regrettably, a referral under that scheme did not occur until the day before the hearing, and the Minister’s solicitors then refused to forward the green book to the nominated solicitor.  At the start of the hearing, I drew the applicant’s attention to his right to seek an adjournment to obtain the advice which was promised, and (as strongly as I could) recommended that he consider making such an application.  I adjourned the hearing briefly to allow him to consider whether to do this.  However, he maintained his wish to proceed with the hearing, and not to delay my judgment on his case. 

5. In these circumstances, I considered it inappropriate to adjourn the matter on my own initiative.  However, I shall suspend my judgment until the end of January 2006, to allow the applicant an opportunity to get legal advice on my above reasons, and shall direct that a copy be sent to the appointed legal advisor.  I would expect that the Minister would not involuntarily remove the applicant during that period. 

I certify that the preceding thirty‑one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  19 December 2005