SZHCS v Minister for Immigration - [2006] FMCA 429

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHCS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 429

MIGRATION – RRT decision – Chinese Falun Gong practitioner – did not attend Tribunal hearing – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(a), 425, 426A, 426A(1), 441A(4), 441C(4), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant:

SZHCS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2573 of 2005

Judgment of:

Smith FM

Hearing date:

21 March 2006

Delivered at:

Sydney

Delivered on:

21 March 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr B Cramer

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 $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2573 of 2005

SZHCS

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 14 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 17 August 2005 and handed down on 6 September 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Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth) but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
Under s.483A the Court has the same powers as the Federal Court under s.39B of the Judiciary Act 1903 (Cth). These are subject to limitations under Part 8 of the Migration Act which have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied 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.
The present applicant arrived in Australia on a temporary business visa in March 2005. On 10 March 2005 he lodged an application for a protection visa. His application did not disclose the names of the people who assisted him, and gave a home unit at Hurstville as his residential and postal address.
The application attached a typed “Refugee Application Submission”, which gave a somewhat confused history of being persecuted in the applicant’s country of nationality, The People’s Republic of China, due to the applicant practising Falun Gong. The history included claims that:
I had been detained many times simply for persisting with my beliefs, had been locked up in a detention centre twice for weeks at a time, had been sentenced to forced labour twice for a period of over a year each time and had been forced to go to study sessions a few times.
Some aspects of these events were described, but the chronology was left obscure, as were many other details. Significantly, the statement did not explain how the applicant had obtained his passport and permission to leave China, notwithstanding a claimed history of extensive punishment as a Falun Gong practitioner “on the black list”.
A delegate refused the application on 15 April 2005, and the applicant lodged an application for review by the Tribunal on 9 May 2005. He gave his previous residential address at Hurstville, and also requested that correspondence should be sent to a post office box at Sydney South. No agent or authorised recipient was appointed.
I am satisfied that the Tribunal posted to the mailing address given by the applicant a letter dated 15 July 2005. The letter said: “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 on 16 August 2005 and indicated that: “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”.
I am satisfied from the Tribunal’s record of posting that it was lodged with the post office on 18 July 2005. This was within the period allowed for posting under s.441A(4), and triggered the provisions of s.441C(4) which deemed the letter to have been received by the applicant seven working days after the date of the letter. I am satisfied that the letter then allowed the applicant the period of notice of the hearing required under reg.4.35D of the Migration Regulations 1994 (Cth).
In those circumstances, the Tribunal had the power under s.426A(1) to “make a decision on the review without taking any further action to allow or enable the applicant to appear before it”, if the applicant “does not appear before the Tribunal on the day on which … the applicant is scheduled to appear”.
In its statement of reasons, the Tribunal indicated that no response was received to the letter inviting the applicant to a hearing, and that he did not appear at the scheduled hearing. The Tribunal said:
In these circumstances, and pursuant to s.426A of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
The applicant, in his amended application, alleges that the Tribunal failed to comply with the requirements of s.425 by inviting him to a hearing. In particular, because the letter:
dated 16 August 2005 inviting the applicant to a hearing to be conducted by the Tribunal … 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.
Although the applicant did file an affidavit, it did not contain evidence to support that contention. The applicant maintained in his oral submissions to me that he did not get the letter, but did not claim that the Tribunal was on any notice that he had not actually received the invitation. In those circumstances, I did not think it necessary to obtain sworn evidence from the applicant. I am prepared to assume that the applicant did not have actual notice of the appointed hearing. However, upon clear authorities binding upon me, the legislative scheme established by ss.425 and 426A carries the consequence that the Tribunal is empowered to proceed under s.426A(1), even where a Court finds that actual notice was not received (see VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [16] applied in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12]).
There is no evidence suggesting that the Tribunal’s exercise of its discretion to proceed under s.426A(1) has miscarried, and I consider that the applicant has not established jurisdictional error arising from his lack of actual notice of the hearing and the Tribunal’s decision to proceed under that provision.
The Tribunal’s reasoning concerning the applicant’s claims was brief. It identified his claims made with his visa application, and described them as “untested and in some respects expressed in general terms”. It concluded:
As I have not had an opportunity to test the evidence during a hearing and to seek further information as to how the applicant was able to leave China without restriction I am unable to accept that there is a real chance that the applicant will face persecution for reasons of his Falun Gong beliefs if he returns to China now or in the foreseeable future.
Accordingly I am not satisfied, on the evidence before me, that the applicant has a well‑founded fear of persecution within the meaning of the Convention.
In my opinion that reasoning reflects no error of fact or law amounting to jurisdictional error. I consider that it was open to the Tribunal to decide that it was unable to be satisfied due to the inadequacies of the material before it, and the absence of the applicant from the hearing to support and explain his claims.
The application filed in this Court contains four general assertions of error of the law without any particulars allowing them to be meaningfully applied by the Court. I have been unable to identify any of the errors referred to.
The applicant’s amended application makes the contention as to procedural fairness which I have addressed above.
The applicant’s affidavit contains a contention that “the Tribunal breached s.424A of the Migration Act by not giving me the opportunity to give additional information to rebut the country information upon which the Tribunal relied”. This contention has two false premises. First, that the Tribunal did rely upon country information, which it did not. Secondly, that s.424A(1) can give rise to a duty to give opportunity to respond in relation to country information, but such a duty is excluded by s.424A(3)(a).
For the above reasons, I have been unable to find jurisdictional error affecting the Tribunal’s decision. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 31 March 2006