SZHFD v Minister for Immigration
[2007] FMCA 126
•16 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHFD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 126 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65; 425; 425A; 425A(3); 441A; 441A(1)(b); 474; pt.8 div.2 Evidence Act 1995 (Cth), s.160 Migration Regulations 1994 (Cth), reg.4.35D |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs vVSAF of 2003 [2005] FCAFC 73 |
| Applicant: | SZHFD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2735 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 February 2007 |
| Date of last submission: | 2 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 February 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr M.P. Cleary |
| Solicitors for the Respondent: | Ms S. Kantaria, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2735 of 2005
| SZHFD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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 6 July 1999 and handed down on 22 July 1999.
The applicant was born on 4 August 1971 and claims to be from the People’s Republic of China (“the PRC”) and of Han ethnicity and Christian faith (“the Applicant”).
The Applicant arrived in Australia on 21 June 1998, having illegally departed from Yun Nan on a false Taiwanese passport issued in another name and a visa issued on 4 June 1998.
On 21 September 1998, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by PRC authorities and the Chinese Communist Party due to his participation in a series of pro-democracy demonstrations in Fuzhou in protest of the Chinese Communist rule. The Applicant also claimed that he was beaten up and injured by Public Security Officers.
On 17 December 1998, a delegate of the First Respondent (“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 under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 19 January 1999, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant did not appear at the hearing before the Tribunal. On 6 July 1999, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 26 September 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Tribunal proceeding
The relevant review history is accurately set out in paragraphs 8 to 18 of the First Respondent’s submissions, set out as follows:
“8. On 19 January 1999 the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB at 43). In that application the applicant nominated his home address as 54 Bland Street ASHFIELD, NSW 2131 (CB at 44). The applicant also nominated an agent to act for him in the review: namely, Mr Jimmy Ji of Ronghua International Services (CB at 44). The applicant nominated the address of his agent as being: PO BOX 941 MARRICKVILLE NSW 2204 (CB at 44).
9. By letter dated 5 March 1999 the Tribunal notified the applicant by registered post that the Tribunal was not prepared to make a favourable decision on the information at had been provided and advised the applicant he was entitled to an oral hearing (CB at 49). In this letter the Tribunal invited the applicant to complete a RESPONSE TO HEARING OFFER form (CB at 51).
10. The letter dated 5 March 1999 and RESPONSE TO HEARING OFFER form was also sent to the applicant’s agent (CB at 50) by registered post.
11. The letter dated 5 March 1999 sent to the applicant, together with the RESPONSE TO HEARING OFFER form, was returned to the Tribunal on 15 April 1999 (CB at 55 and CB at 49).
12. By letter dated 4 June 1999 the Tribunal sent the applicant a Notice under s425A of the Migration Act 1958 (CB at 56) (“the s425A Notice”) by registered post. In this letter the Tribunal advised the applicant that the oral hearing would be on 5 July 1999 at 1.30pm and invited the applicant to complete a RESPONSE TO HEARING INVITATION form (CB at 58).
13. The s425A Notice and RESPONSE TO HEARING INVITAION form was also sent to the applicant’s agent (CB at 57) by registered post.
14. The s425A Notice and RESPONSE TO HEARING INVITATION sent to the applicant were returned to the Tribunal on 19 July 1999 (CB at 61 and CB at 56).
15. The applicant failed to attend the hearing on 5 July 1999 (CB at 62).
16. By letter dated 9 July 1999 the Tribunal sent the applicant a Notice under s430A of the Migration Act (CB at 63) (“the s430A Notice”). In the s430A Notice the Tribunal advised the applicant that the decision of the Tribunal would be handed down on 22 July 1999 (CB at 63).
17. The s430A Notice was also sent to the applicant’s agent (CB at 64).
18. On 22 July 1999 the Tribunal handed down its decision (CB at 68) and by letter dated 22 July 1999 the Tribunal sent a copy of the decision to the applicant (CB at 65) and to his agent (CB at 66) by registered post.”
The Tribunal’s decision is accurately set out in paragraphs 27 to 32 of the First Respondent’s submissions, as follows:
“27. In making its decision the Tribunal reviewed the material it had available to it, namely the information contained in the applicant’s protection visa application. As the applicant failed to attend the oral hearing the Tribunal had no other evidence before it concerning the claims made by the applicant for asylum.
28. Before coming to its decision, the Tribunal set out the relevant law relating to refugee claims under the International Convention (CB at 69-70). It did this in unobjectionable terms. The Tribunal then set out the claims and the limited evidence it had before it, being the information contained in the Department’s file (CB at 71-72).
29. The Tribunal made reference to independent country information concerning the pro-democracy movement in China, and in particular those involved in the demonstrations on 4 June 1989 (CB at 73-74).
30. Importantly, the Tribunal found evidence it had in its possession was insufficient to determine the refugee claim.
31. In coming to its conclusion to affirm the delegate’s decision the Tribunal made the following findings:
a. There was insufficient information to make findings as to the applicant’s participation in the pro-democracy movement and its consequences (CB at 73).
b. The Tribunal was not satisfied that there is a real chance that the applicant will suffer harm because he applied for asylum (CB at 75).
c. The Tribunal was not satisfied that the applicant is at risk of persecution for reasons of his political opinion (CB at 75).
d. The Tribunal was not satisfied that any fear of persecution that the applicant may have is well founded (CB at 75).
32. In other words the Tribunal could not reach a state of satisfaction as to the existence of protection obligations. In these circumstances the Migration Act demanded that the protection visa be refused and that the decision of the delegate be affirmed: see NAVX v MIMIA [2004] FCA 346 per Allsop J.”
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that he relied upon an amended application filed by him on 27 January 2006. The amended application is in the following terms:
“That the RRT decision was affected by jurisdictional error:
(a). The RRT did not comply with s425 of the Act as it failed to provide a notice to the applicant under s425A of the Act which gave the applicant at least 14 days notice of the hearing under s425A(3) of the Act.
Particulars
On 5 March 1999 the RRT sent to 54 Bland Street, Ashfield a notice under s426 of the Migration Act inquiring whether the applicant wished an oral hearing. The invitation was returned to the RRT unopened on 15 April 1999. Notwithstanding that the RRT was aware that the Applicant was no longer at that address, on 4 June 1999 a further invitation was sent to that address under s425A of the Act, inviting the applicant to attend a hearing on 5 July 1999 (emphasis added). This invitation was returned unopened to the RRT on 19 July 1999. Consequently the applicant did not have at least 14 days notice of the hearing. The RRT gave its decision on 22 July 1999 refusing the application.”
The First Respondent filed a notice of objection to competency on 11 November 2005 and confirmed that it relied on that document.
At the outset of the hearing, the First Respondent sought to rely on an affidavit of Gemma Anne Broderick sworn 1 February 2007. Miss Broderick’s affidavit annexed a copy of the Tribunal’s registered post records for the dates 4 June 1999 and 23 July 1999. The Applicant was unable to decide whether or not he objected to the First Respondent relying on that affidavit. In the circumstances, the Court gave leave to the First Respondent to read and rely on the affidavit and gave leave to the Applicant to give oral evidence in response to the facts asserted in the affidavit.
The Applicant gave evidence and was cross-examined. The Applicant’s evidence was in relation to the delay by him of 6 years in filing his application in this Court on 26 September 2005 seeking judicial review of a decision of the Tribunal dated 19 July 1999. The Applicant’s evidence in this regard was to the effect that he attempted on 2 or 3 occasions to contact his migration agent about the state of his review application, the last attempt being some 12 months after he lodged his application for review on 19 January 1999. He confirmed that he moved from his address at 54 Bland Street Ashfield in October 1999. He stated that he made no other inquiry because he did not know how to and he relied on his migration agent to inform him about the results of his review. In other words, from at least October 2000, the Applicant took no steps whatsoever to make any inquiries about his review from his migration agent or the First Respondent. According to his oral evidence, the Applicant changed his address in October 1999 without notifying the Tribunal or the Department of his new contact details.
The applicant offered no evidence in response to the copies of registered post records annexed to Miss Broderick’s affidavit that showed that the letters dated 4 June 1999 and 22 July 1999 were dispatched to the Applicant at his address at 54 Bland Street, Ashfield (“the Postal Log”).
The Applicant’s ground alleges a single error on the part of the Tribunal, namely, that it failed to comply with its obligation under s.425 of the Act to invite the Applicant to attend a hearing before it.
In his application for review by the Tribunal lodged on 19 January 1999 the Applicant identified his home address as “54 Bland Street Ashfield” and nominated an agent authorised to act on his behalf.
As at 4 June 1999, s.425A of the Act was in the following terms:
“(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant by one of the methods specified in section 441A (emphasis added). However, this subsection does not apply if the applicant is in Immigration detention.
(3) The period of notice (emphasis added) given must contain a statement of the effect of section 425A.”
As at 4 June 1999, s.441A of the Act was in the following terms:
“(1) A document specified in subsection (3) is taken to be duly given to an applicant for review if:
(a) the document is sent (physically, electronically or otherwise) to:
(i) the last address for service provided by the applicant in connection with his or her application for review; or
(ii) the last residential address provided by the applicant in connection with his or her application for review; and
(b) the Tribunal has a receipt or other evidence indicating the date of dispatch.(emphasis added)
(2) A document specified in subsection (3) is taken to be duly given to an applicant for review if the document is given:
(a) by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or
(b) by leaving it at the applicant’s place of residence with a person who appears to live there and appears to have turned 16.
(3) The documents specified for the purposes of subsection (1) and (2) are: (emphasis added)
(a) an invitation to an applicant under section 424 (other than an invitation to an applicant who is in immigration detention); and
(b) an invitation under section 424A (other than an invitation to an applicant who is in immigration detention); and
(c) a notice under section 425A (emphasis added) (other than a notice to an applicant who is in immigration detention); and
(d) a notice under section 430A; and
(e) a statement given under subsection 430B(6).
(4) It is sufficient compliance with the requirement to give a document referred to in subsection (3) if a facsimile, or a certified copy, of the document is so given.
(5) A document posted in accordance with paragraph (1)(a) must bear correct prepaid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate.”
The effect of s.441A in 1999 was, relevantly, that a s.425A notice was taken to be duly given to an applicant by sending the letter to the last address for service provided by an applicant or the last residential address provided by an applicant in connection with the applicant’s review and the Tribunal has a receipt or other evidence indicating the date of dispatch (s.441A(1)(b)).
In the proceeding before this Court, the Tribunal’s Postal Log showed that, on 4 June 1999, the s.425A notice was sent to the Applicant’s last known residential address at 54 Bland Street, Ashfield by registered post. The Applicant did not dispute the evidence of posting on that date, despite being given an opportunity to do so. It would appear that the s.425A notice, sent to the Applicant, was also sent to the Applicant’s migration agent.
Regulation 4.35D of the Migration Regulations1994 (Cth) provided that the prescribed period under s.425A(3) was 14 days from the date the applicant received the s.425A notice. Regulation 4.35D was in its present form as at 4 June 1999.
The Applicant is deemed to have received the s.425A notice on the fourth working day after the notice was posted on 4 June 1999 pursuant to s.160 of the Evidence Act 1995 (Cth). There is no evidence before this Court to rebut such presumption. In the circumstances, the s.425A notice was posted to the Applicant on 4 June 1999 and deemed received 4 working days after 4 June 1999. The notice nominated
5 July 1999 as the date for hearing. In the circumstances, the hearing date is in excess of the prescribed period of 14 days after receipt by the Applicant of the notice
The notice was addressed to the Applicant at 54 Bland Street, Ashfield. Although the Applicant’s application states he had moved from that address, the Applicant gave evidence before this Court that he did not move from that address until October 1999. In any event, the Tribunal’s obligation was to correspond with him at the address provided by him. This the Tribunal did.
Accordingly the Tribunal’s letter dated 4 June 1999 was sent incompliance with the relevant statutory regime as at 4 June 1999.
In the circumstances, having complied with its statutory obligations to invite the Applicant to attend a hearing, the Tribunal was entitled to proceed with its review without taking any further steps to allow or enable the Applicant to appear before it, despite that, on19 July 1999, the invitation was received back by the Tribunal, marked “Return to Sender”.
In its decision, the Tribunal noted the Applicant’s claims that he had a well founded fear of persecution by the Chinese authorities by reason of his political opinion arising out of his alleged participation in pro democracy activities in 1989. The Tribunal found it had insufficient information to make findings about the Applicant’s claims. The Tribunal had regard to independent country information that essentially revealed that punishment was confined to those who led or incited the demonstrations and not mere participants. The Tribunal stated that it had not had the opportunity to take evidence from the Applicant and that there were questions it would have wished to explore with Applicant. The Tribunal concluded that, “in the absence of any further evidence”, it was not satisfied that the Applicant has a well founded fear of persecution in the PRC by reason of his political opinions, nor that there is a real chance he would suffer harm in the PRC because he applied for asylum.
In the circumstances, the conclusions reached by the Tribunal were open to it on the material before it. The Tribunal’s conduct of its review and its reasons for decision were carried out in accordance with the statutory requirements of the Act.
It is for an applicant to satisfy a tribunal that he or she meets the criteria for refugee status. Section 65 of the Act mandates that if a decision maker, such as the Tribunal, is not so satisfied that an applicant meets that criteria, then that decision maker must refuse a protection visa. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259 at 274-275; Minister for Immigration and Multicultural and Indigenous Affairs vVSAF of 2003 [2005] FCAFC 73 at [16]-[19]).
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this court has no jurisdiction to interfere.
The proceeding before this Court is dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 15 February 2007
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