SZHDP v Minister for Immigration - [2006] FMCA 178

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHDP v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 178

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 People’s Republic of China claiming fear of persecution for supporting independence for Taiwan – where applicant did not attend the RRT hearing – procedural fairness – where applicant claims she was not invited to give oral evidence before the Tribunal – claim of denial of substantial justice – allegation of bias – no evidence of bias – where applicant claimed she did not attend Tribunal hearing because she was ill – applicant did not attempt to contact Tribunal – applicant did not attend a medical practitioner – no jurisdictional error.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth), ss.420, 425, 426A

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SBAU v Minister for Immigration & Multicultural Affairs [2002] FCA 1076
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
SZDXC v Minister for Immigration & Multicultural Affairs [2005] FCA 1306

Applicant:

SZHDP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2636 of 2005

Judgment of:

Scarlett FM

Hearing date:

3 February 2006

Date of Last Submission:

3 February 2006

Delivered at:

Sydney

Delivered on:

3 February

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2636 of 2005

SZHDP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal. The decision of the Tribunal was handed down on

16^th August 2005. The decision of the Tribunal was to affirm the decision of a delegate of the Minister not to grant a protection visa.
The applicant is a citizen of the People's Republic of China, who arrived in Australia on 5^th December 2004. She applied for a Protection (Class XA) visa on 10^th December 2004 but a delegate of the Minister refused that application on 23^rd February 2005.
A month later, on 23^rd March, the applicant sought a review of that decision by the Refugee Review Tribunal. The Tribunal invited the applicant to attend a hearing, which was scheduled to take place on Tuesday, 26^th July 2005. The applicant advised the Tribunal, in writing, on 17^th June, that she wished to attend the hearing, to give oral evidence. The applicant did not attend the hearing, nor did she contact the Tribunal to explain her failure to attend.
The Tribunal decided, under s.426A of the Migration Act, to make the decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
The Tribunal noted that the applicant claimed to fear persecution in China because she has openly supported the independence of Taiwan. The Tribunal noted, at page 79 of the Court Book, that the applicant's claims were very vague and lacking in detail. Without those details, the Tribunal was not prepared to accept the applicant's unsupported assertion that she was involved in pro-Taiwanese political agitation.
The Tribunal went on to say:
It was because it had insufficient detail to accept the applicant's claims as they stood that the Tribunal invited the applicant to a hearing, so these matters could be canvassed in detail.

The Tribunal's letter of invitation placed the applicant on notice that, on the basis of the information before it, the Tribunal is unable to make a favourable decision.
The Tribunal was not satisfied, on the evidence before it, that the applicant satisfied the criterion set out in s.36(2) of the Migration Act. Accordingly, the Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa.
The applicant sought a review of that decision from the Federal Magistrates Court. On 10^th January 2006 she filed an amended application. In that amended application, the applicant noted that she had asked to obtain legal advice from the Refugee Review Tribunal's legal aid scheme. She went on to say that she did not receive the letter regarding her legal advice. As a result, she said that it was unfair to request her to give complete particulars of each ground of review.
At the hearing, I was concerned to find out whether the applicant had actually received the legal advice to which she was entitled. I note that she had been referred to a particular solicitor on the panel, and she produced a letter from that solicitor. That letter gave her the solicitor's advice about her application. What had happened, however, was that the applicant did not receive that letter until after the time when she was required to file an amended application. As a result, the applicant was obliged to complete her amended application, without the benefit of the advice from her solicitor.
The applicant claims that the Tribunal fell into error, and gave three grounds for that application. First, the applicant said that the Tribunal breached the rules of procedural fairness by not inviting her to give oral evidence and present arguments at a hearing. Second, she referred to s.420 of the Migration Act, which requires the Tribunal to do substantial justice in deciding each case on its merits and avoiding technicalities. In the third ground, the applicant claimed of bias in the decision and also submitted that the Tribunal was obliged to refer to resources about China and its democratic system.
The applicant made oral submissions to the Court at the hearing of her application. She agreed that she did not attend the hearing of the Refugee Review Tribunal. She said that she had been seriously ill and the person who translated for her had gone back to China. As a result of her illness, she said that she could not write to the Tribunal to advise that she would be unable to attend, and she was not able to telephone them to advise of her illness.
The applicant said that she did not seek advice from a doctor but she went to a chemist and purchased some medicine. The applicant produced no evidence in support of that claim, other than her assertions to that effect.
Turning to the first ground of review, the claim of a breach of procedural fairness, by not inviting the applicant to give oral evidence and present arguments at a hearing, it is clear that this ground cannot be sustained. The evidence shows that the Tribunal did write to the applicant, as required by s.425 of the Migration Act, and invited her to attend the hearing. Indeed, the applicant forwarded a response to hearing invitation on 16^th June 2005. The applicant agreed at the hearing that she had been informed of the Tribunal hearing but said that she was unable to attend because of illness.
I am satisfied that the Tribunal did not fall into error when it made its decision to proceed to deal with the matter under s.426A of the Migration Act. It is conceded that the applicant did not contact, or attempt to contact, the Tribunal, to advise the Tribunal that she would not be able to attend.
Turning to the second ground, there is no breach of s.420 of the Migration Act that I can see. The Tribunal did consider the applicant's claims, based on the limited material that was before it. As to the question of bias raised in the third ground, the applicant said that the bias was shown by the fact that the Tribunal did not believe her evidence.
The ideas of bias and bad faith have been dealt with by the Full Court of the Federal Court of Australia, in a number of decisions, including SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749. An allegation of bad faith or bias is a serious matter and should not be lightly made. It must be clearly alleged and proved. The circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; see SBBS at paragraph 48, see also SBAU v Minister for Immigration & Multicultural Affairs [2002] FCA 1076 at [28].
I have read through the Tribunal decision and I see no evidence of bias.
The applicant also claimed that there were obligations on the Tribunal to refer to resources about China and its democratic system. I think it is well-established that the Tribunal has no obligation to conduct its own investigations of an applicant's claim. The fact is that the applicant provided insufficient evidence to allow the Tribunal to reach a positive state of satisfaction. This is a common occurrence in matters where the applicant does not appear before the Tribunal at a hearing.
In this case the comments of the Tribunal, at page 79 of the Court Book, that it was because it had insufficient detail to accept the applicant's claims that the Tribunal invited the applicant to a hearing set out the difficulties faced by applicants when they do not attend.
In SZDXC v Minister for Immigration & Multicultural Affairs [2005] FCA 1306 at paragraph 16 Healey J said:
The RRT made it lucidly clear in its letter of 12^th March 2004 that it was unable to make a decision in the appellant's favour, on the basis of the information before it, and, as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.
In my view, a similar comment applies in this case. I am satisfied that the decision in SZDXC (supra) sets out the state of the law, and I propose to follow that decision. The application must be dismissed.
There is an application for costs because the Minister has been successful and the applicant has been unsuccessful. In my view, the amount of $2,500.00 is a reasonable figure in the circumstances.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 6 February 2006