SZHFM v Minister for Immigration

[2006] FMCA 989

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 989

MIGRATION – Review of Refugee Review Tribunal decision – applicant claiming persecution in China as a Falun Gong practitioner – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425, 425A, 426A

Applicant: SZHFM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2755 of 2005

Judgment of: Driver FM

Hearing date: 11 July 2006

Delivered at: Sydney

Delivered on: 11 July 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Nanson
Australian Government Solicitor

ORDERS

1. The Court directs that the name of the applicant is not to appear on the transcript of proceedings.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2755 of 2005

SZHFM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”).  The decision was signed on 10 August 2005 and notified to the applicant by letter dated 30 August 2005.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from China and had made claims of persecution based upon his practice of Falun Gong.  His claims are set out in a statement which appears on pages 27 and 28 of the court book.  I accept the court book as evidence for the purposes of today's hearing.  The applicant’s protection visa application was made on 17 February 2005.  On 18 March 2005 the Minister's delegate refused that application.  The applicant sought review of that decision by the RRT by application made on 26 April 2005.  The applicant's protection visa claims were fairly briefly and generally expressed.  No additional or different claims were made in support of the review application.

3. On 19 July 2005 (court book, page 53) the RRT wrote to the applicant advising him that it was unable to make a favourable decision on the basis of the information he had provided and inviting him to a hearing on 10 August 2005.  The applicant made no response to that hearing invitation.  When the applicant failed to appear at the scheduled time of the hearing, the presiding member elected to proceed in his absence (court book, pages 63 and 64).  The decision of the RRT in the circumstances was a simple one.  The presiding member stated that the applicant had provided insufficient material to support the grant of a protection visa and affirmed the decision of the delegate.

4. These proceedings began with a judicial review application filed on 28 September 2005.  In that application, the applicant simply recites that he is a Falun Gong practitioner and that he was detained by the police in China for re‑education.  That application failed to properly engage the jurisdiction of the court.  A registrar listed it for a hearing in 2007.  Having seen the application, I was dissatisfied with that order.  On 6 July 2006 at a callover of a number of migration applications, I ordered that the application be listed for hearing today.

5. The applicant filed in court by leave today an amended application.  That at least asserts an error of law, although no particulars are given.  The balance of the application simply repeats the applicant's protection visa claims.  It appeared to me that if there was any issue concerning the validity of the RRT decision, it concerned the invitation to the applicant to attend the RRT hearing and his failure to attend.  With that in mind, I gave the applicant the opportunity to give oral evidence today.  The applicant accepted that opportunity.  He told me that between July and October 2005 he was working in Brisbane, apparently in the building industry.  He could not specifically recall receiving any correspondence from the RRT but thought that he had probably received the RRT letter dated 27 April 2005 acknowledging receipt of his review application.  All correspondence was sent to the nominated mailing address contained in the review application (court book, page 49). 

6. The applicant told me that his review application was filled out by a friend with his agreement and upon his instructions and signed by him.  He told me that he was aware of the nominated mailing address and agreed to it.  The post office box is apparently one belonging to the applicant's friend and his intention was that his friend would draw to his attention correspondence received from the RRT.  The applicant could not recall whether the hearing invitation was drawn to his attention.  Neither could he recall whether a letter dated 12 August 2005 inviting him to the handing down of the RRT decision was received by him.  The applicant was initially firm in his evidence that he did not receive the RRT letter dated 30 August 2005 (court book, page 58) providing him with a copy of the RRT decision.  He initially asserted that he did not become aware of the RRT decision until June 2006.  When taken to his review application filed on 28 September 2005, however, the applicant accepted that he must have, by one route or another, obtained a copy of the RRT decision in September 2005.

7. Based upon the applicant's evidence, I am satisfied that the RRT corresponded with the applicant at the address he had nominated for the receipt of correspondence.  He told me that he did not advise the RRT of any address in Brisbane where he might be contacted because he left in a hurry.  He did not provide any telephone contact in his review application.  It follows, and I find, that the only means the RRT had of communicating with the applicant was to write to him at his nominated mailing address.  The RRT did that.

8. The RRT provided sufficient notice of the hearing to which the applicant was invited. The notice given met the requirements of s.425A of the Migration Act 1958 (Cth) (“the Migration Act”). It follows, and I find, that the applicant was properly invited to a hearing for the purposes of s.425 of the Migration Act.

9. In those circumstances, the presiding member was entitled to proceed in the absence of the applicant pursuant to s.426A of the Migration Act when the applicant failed to appear at the nominated time of the hearing.

10. For completeness, I note that there is no issue of a breach of s.424A of the Migration Act in this case. The decision of the RRT did not turn on any particular information. Rather it turned upon a lack of information.

11. I find that the decision of RRT is free from any jurisdictional error.  It is, therefore, a privative clause decision and the application must be dismissed.  I will so order.

12. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $4,000.  The applicant did not wish to be heard on costs.  This was a relatively straightforward matter.  The Minister was represented at three interlocutory hearings as well as today's hearing.  However, counsel was not required and I did not require written submissions.  In my view, on a party-party basis, $3,000 is adequate recompense for the Minister in this matter. 

13. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  14 July 2006