SZHFN v Minister for Immigration - [2006] FMCA 614

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFN v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 614

MIGRATION – RRT decision – Taiwan national – 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. 425A, 426A(1), 441A(4), 441C(4), 474(1), 483A, reg 4.35D, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

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

Applicant:

SZHFN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2758 of 2005

Judgment of:

Smith FM

Hearing date:

18 April 2006

Delivered at:

Sydney

Delivered on:

18 April 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

N Johnson

Solicitors for the Respondents:

Sparke Helmore

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

SYG 2758 of 2005

SZHFN

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 28 September 2005 under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review 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Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth) s.8).
The Court's powers under s.483A are the same as those of the Federal under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Pt 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claim should be believed, nor whether he qualifies for a refugee visa.
The applicant arrived in Australia on a Taiwan passport in September 2004. On 8 November 2004 he lodged an application for a protection visa. His application did not show the name of any person or persons who assisted him.
A brief statement attached to the application gave his reasons for claiming to be a refugee. He said that he had been working as a manager of a sales department in a company in Taiwan, and was sent from early 1998 to China "to open up Chinese market". He claimed that at Christmas 2001 he was taken into detention by Chinese police after he "dallied with woman and drunk". While detained, he agreed to become a spy for China. He received training, and on his return to Taiwan joined a Falun Gong Centre. He made visits to Hong Kong to report information about the leaders of Falun Gong and Taiwan's election.
When he "found I like Falun Gong so much", he was told he could not withdraw from his activities without his sister in China being threatened. He said:
I felt so embarrassed. I tried to hide in countryside, change name, but I still was disturbed, I found some strangers around me and my phone was bugged, I cannot do anything, my nerve nearly crumbled, my wife go away from me.
I do not believe and wish the Chinese or the Taiwan government will give me any protection due to belief and conduct. The reason is simple enough as I have done the things disliked by Taiwan while the Chinese government sees no value on me.
A delegate refused the application on 26 February 2005, and the applicant lodged an application for review by the Tribunal on 29 March 2005. His application did not appoint an agent. It gave a residential address at Chatswood, and requested that correspondence about his application should be sent to a post office box at Pymble.

No telephone or other contact details were given.
By letter dated 11 July 2005, the applicant was invited to attend a hearing on 16 August 2005 at 12 pm. The letter told the applicant:
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.
The letter also told the applicant:
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.
The letter was sent by registered post to the applicants post office box address. In its statement of reasons the Tribunal explained:
No response was received to the Tribunal's letter, which was sent to the applicant at his address for service. The applicant does not have an authorised recipient and did not provide any telephone numbers at which he could be contacted. The Tribunal’s letter to the Tribunal was not returned unclaimed. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. 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 me. I have done so taking into account the material in the Department’s file, which includes the protection visa application and the delegate’s decision record.
I am satisfied that the Tribunal had the power under s.426A(1) of the Migration Act to proceed without taking any further action to invite the applicant to a rescheduled hearing. The letter was properly sent to the applicant pursuant to the provisions of ss.425A, 441A(4) and reg.4.35D, and gave enough time so as to allow the applicant to be deemed to have received the invitation pursuant to s.441C(4). On the evidence before me, there was no circumstance known to the Tribunal which it has failed to consider when exercising its discretion.
The applicant today when invited to explain his absence from the Tribunal’s hearing, said only: "I was unable to read the letter." But I was unable to induce him to explain how this came about, nor any other circumstances in which he claimed to have missed the opportunity to attend the hearing. In any event, there is clear authority that the Tribunal's decision to proceed under s.426A(1) is not invalid, even if the applicant did not have actual notice of the hearing (see VNAA v Minister for Immigration (2004) 136 FCR 407 at [16] applied in Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [12]).
The Tribunal's reason for affirming the delegate's decision essentially was that the applicant's original statement was "lacking in detail". The Tribunal referred to aspects on which it needed more information from the applicant. It concluded:
Overall, in view of the lack of detail contained in the protection visa application, I am unable to make findings of fact in relation to the applicant's claims. It follows that I am unable to be satisfied that the applicant has a well founded fear of persecution for a convention reason.
In my opinion, that reasoning was open to the Tribunal in the circumstances described by it. I can find no jurisdictional error affecting its decision.
The applicant has filed an amended application which restates grounds contained in his original application. It claims:
1.DIMIA did not careful processing my applicant. They even don’t look my passport.
2.RRT did not consider all my evidence and due to my English is not good. So I lost a chance to hearing. So the decision was made under unfair condition.
3.I think RRT had jurisdiction errors.
4.I hope the court can consider the difficult situation for me to get the evidence from Taiwan and China.
These propositions have not been developed by the applicant in any written or oral submissions to me.
The complaint about DIMIA is irrelevant to the validity of the Tribunal's decision.
The complaint of "unfair condition" concerning the applicant’s absence from his hearing has been dealt with above.
No particulars are given in relation to the general assertion of "jurisdictional errors". I have not been able to identify any such error.
The request that I should take into account the applicant’s difficulties in getting evidence from Taiwan and China does not provide him with grounds for obtaining relief in this court.
For the above reasons, I have decided that the Tribunal's decision was not affected by jurisdictional error. It is therefore a privative clause decision for which relief is barred under s.474(1), and I must dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 28 April 2006