SZHDC v Minister for Immigration
[2006] FMCA 133
•25 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHDC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 133 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China claim fear of persecution because of practice of Falun Gong – where applicant did not attend RRT hearing – where original hearing postponed at applicant’s request. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.425, 426A
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
SZDQO v Minister for Immigration & Multicultural & Indigenous (2005) 144 FCR 251
SZFFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1927
| Applicant: | SZHDC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2610 of 2005 |
| Delivered on: | 25 January 2006 |
| Delivered at: | Sydney |
| Hearing date: | 25 January 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Jordan |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2610 of 2005
| SZHDC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was made on 27th July 2005 and handed down on 16th August 2005. The Tribunal's decision was to affirm the decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs made on 11th March 2005 not to grant a protection visa to the Applicant.
The Applicant did not attend the hearing of the Tribunal. He was originally invited to attend a hearing on 14th July 2005 and completed and returned the response to hearing invitation saying that he wished to attend and would require a Mandarin interpreter. He then wrote to the Tribunal on 13th July encloses a medical certificate saying that he was suffering from a viral infection. Those documents were forwarded to the Tribunal by fax. The tribunal postponed the hearing until 12 noon on Wednesday 20th July and advised him by express post on 15th July 2005. The Applicant did not attend nor did he contact the Tribunal.
The Tribunal proceeded to deal with the review under s.426A of the Migration Act 1958 without taking any further action to enable the Applicant to appear before it.
The Tribunal’s Findings and Reasons
The Tribunal noted that the Applicant was a citizen of China who claimed a fear of persecution because of his practice of Falun Gong. The Tribunal also noted that in view of the lack of detail contained in the Applicant's protection visa application and in the absence of a hearing to test the truthfulness of the Applicant's claims and establish relevant facts, the Tribunal was not satisfied that the Applicant was a Falun Gung practitioner or that he suffered mistreatment.
The Tribunal was not satisfied that any of the claims with respect to Falun Gong were true and was therefore not satisfied that the Applicant had a well founded fear of persecution. Accordingly, the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa.
The Application for Review
The Applicant filed an application for review at this Court on 16th September 2005. He filed an Amended Application on 17th November 2005 seeking these orders.
(a) Review that RRT did not satisfied I am a Falun Gung practitioner because I did not provide any evidence but I have explained the reasons why I did not provide this useful evidence.
(b) Seeking review of the RRT's decision in regarding to my absence of the hearing.
On 17th October 2005 the Applicant attended Court when the application was listed for Final Hearing on 5th December 2005. The Applicant filed an application for adjournment on 1st December annexing a medical certificate that stated he was suffering from “Chronic obstructing airway disorder” and would not be fit for duty from 1st to 31st December 2005 inclusive.
He did not attend Court on 5th December so the application was adjourned to 25th January 2006 for Final Hearing.
The Applicant attended Court for the hearing today. The Applicant told the Court that he believed that the Refugee Review Tribunal did not give him sufficient time to attend the postponed hearing. He said that he had received a letter on 15th July which was a Friday. He said that he lived in Blacktown but his postal address was a post office box in Gladesville.
Because he did not receive the letter he had not way of contacting the Refugee Review Tribunal. He said the Tribunal should have called him on Tuesday 19th July. This was because Blacktown is a fair distance from Gladesville. When he received the letter it was already past the hearing date. In answer to a question from the Bench why it was that his current home address was at Homebush West but his postal address was now a post office box at Pennant Hills, he explained that he had a post office box where he was working. He does not work on weekends and so is not able to clear the post office box every day and sometimes several days could go past without clearing it.
He did not have evidence about his Falun Gung involvement because his family had tried to send it to him but they were under very strict scrutiny in China. He said that he had applied for adjournment of the proceedings until February when some people would be coming out with a tour group who would bring his evidence from China. The Applicant claimed that the Refugee Review Tribunal was prejudiced against him and they should have waited until February.
When asked if he had told the Tribunal about evidence being available in February the Applicant said that he did not have a chance to tell them. The Applicant also said that the Tribunal gave him unfair treatment because they did not give him sufficient time.
Further in his submissions, the Applicant expressed the opinion that the Tribunal was reluctant to hear from him and he denied that he was trying to delay the hearing and said that what he was telling was the truth.
The First Respondent Minister has supplied a Written Outline of Submissions. It is submitted that the Tribunal was acting within its discretion to hear the proceedings under s.426A of the Act without taking any further steps to give the Applicant an opportunity to attend in person.
The letter forwarded by express post to the Applicant on 15th July was not returned unclaimed and the Tribunal did not receive any contact from the Applicant to explain his failure to attend the hearing on 20th July, either before the 20th of that month or after that date but before the decision was signed on 27th July.
It is also submitted that the Tribunal's decision was open to it on the limited material that had been provided by the Applicant and is consistent with the decisions of the full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12]-[15] and also NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [35]-[36].
Dealing with the Applicant's claims I note that the Applicant has made some assertions from the Bar table that the proceedings should have been adjourned until February this year when a tour group was expected when people would bring material by way of evidence that would assist the applicant's case before the Tribunal. There is no evidence that I could discern on the material before me that the Applicant had ever asked the Tribunal for a hearing date in February or later. I note that the Applicant had provided a written statement in English with his application for review and there is no reference to further evidence being available in February there.
I also note that the Tribunal Member referred to the Applicant's written statement and I accept that the Tribunal did take that material into account. The Applicant has expressed a belief that the Tribunal was in some way prejudiced against him, either in returning an unfavourable decision or in being reluctant to hear from him at all.
There is no evidence of prejudice or bias or bad faith in the Tribunal decision or anywhere else that I can see. It is in fact very rare that evidence of prejudice or bias is discernable just from the wording of the Tribunal's decision.
As to whether the Tribunal should have postponed the Applicant's hearing for longer than it did, counsel for the Respondent has submitted and I believe correctly that the medical certificate attached to the Applicant's request for a postponement and faxed to the Tribunal indicated an inability to attend up to and including 18th July. The Tribunal postponed the hearing to 20th July which was after the time specified in the medical certificate.
The Applicant did not communicate with the Tribunal either to inquire about an adjournment of the hearing and on receiving the letter advising of the postponed date and, as he said, realising that he had missed that date did not then attempt to contact them to advise that he had only just received the letter.
In any event it is difficult to see why an application would establish a postal address in a post office box a considerable distance from his home, even if it is near to his place of employment. It is noteworthy that the Applicant is not able to attend his post office box on weekends when he does not work or even every day when he does work.
The logic of having a post office box that is not accessible every day of the week is one that is difficult to fathom and the trouble with having a post office box is that a letter will not be returned unclaimed. It will just sit in the post office box until the Applicant gets around to clearing the box.
As to the date of postponement and the amount of time given, it is well accepted that where a hearing has been adjourned or postponed at the request of the Applicant, the requirements in s.425A(3) do not continue to apply in relation to the new hearing date. I refer to the decision of SZDQO v Minister for Immigration & Multicultural & Indigenous (2005) 144 FCR 251 Affairs which is a decision on appeal from this Court, where it was held that in circumstances of this nature the Tribunal is not bound to accord applications for review in the prescribed period of 14 days mandated by Migration Regulations 1994, Reg 4.35D.
I also note in a more recent appeal decision from this Court, SZFFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1927 the Court said at paragraph 8:
His Honour was correct to follow SZDQO in the present case particularly since the Tribunal gave the appellant at whose behest the hearing was re-scheduled in the first place, more than enough time to recover from his illness, at least by reference to the period of time indicated by the doctor on his or her certificate of 19 October 2004.
I am mindful of the fact that the Tribunal only gave the Applicant a postponement until a couple of days after the expiry of the period in the Applicant's medical certificate. What the Tribunal did do, however, was to send its letter by express post. I can take judicial notice of the fact that express post letters in the Sydney metropolitan area and indeed in the metropolitan area of any capital city in Australia are guaranteed to arrive on the next business day and Australia Post even advises users of that express post system to send letters to a post office box to guarantee early delivery.
In my view, the Refugee Review Tribunal was within its rights to adjourn the proceedings to the date that it did and advise the Applicant by express post to his post office box and expect that the Applicant would receive it in plenty of time.
The upshot of all this is that I am satisfied that no jurisdictional error has been shown. I have read the decision myself right through, mindful of the fact that the Applicant is not legally represented in order to satisfy myself that there is no other evidence of any jurisdictional error on behalf of the Tribunal. I am unable to discern any. As there is no jurisdictional error the decision is a privative clause as defined in s.474 of the Migration Act and it therefore attracts the protection of s.474. The application is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 3 February 2006
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