SZHGD v Minister for Immigration

[2007] FMCA 206

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHGD v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 206

MIGRATION – Review of decision of RRT – where applicant claims he has not received a hearing invitation – where the notice was deemed to have been received – nature of the Tribunal’s duty to be satisfied.

Migration Act 1958, ss.65, 424(1), 425A, 426, 441A, 494C

Murphy v Minister for Immigration [2004] FCA 657
XIE v Minister for Immigration [2005] FCAFC 172
Dranichnikov v Minister for Immigration (2003) 197 ALR 389
SZATG v Minister for Immigration [2004] FCA 1595

Applicant: SZHGD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2809 of 2005

Judgment of: Raphael FM

Hearing date: 14 February 2007

Date of last submission: 14 February 2007

Delivered at: Sydney

Delivered on: 14 February 2007

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Phillips Fox

ORDERS

1. Application dismissed.

2. The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship.

3. Applicant to pay the respondent’s costs assessed in the sum of $2,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2809 of 2005

SZHGD

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People’s Republic of China.  He arrived in Australia on 12 December 2004.  On 17 January 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 9 April 2005 a delegate of the Minister refused to grant a protection visa and on 10 May 2005 the applicant applied for a review of that decision.

2. In his application to the Refugee Review Tribunal, which is a typed document that the applicant admitted to me that he had signed on 5 May 2005, he gives as his mailing address PO Box A765, Sydney South, NSW 1235.  He did not live there.  He lived at an address in Bankstown.  Why a person who speaks no English should give as his mailing address a post office box in an area of town far removed from that in which he lived I do not know.  The applicant has been unable to enlighten me as to who filled in the form for him or why he chose that post office box.  He says he does not know anything about it.

3. On 26 July 2005 the Tribunal wrote to the applicant at the post office box advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.  The Tribunal invited the applicant to a hearing to take place on 24 August 2005.  A letter was sent, apparently by registered post.  There appears at [CB 66] a photocopy of a check list when no reply had been received to that hearing invitation which seems to indicate that the person who completed the check list had discovered that the letter was sent on 26 July 2005, although at that time the letter could not be located.

4. The applicant did not attend the hearing.  It is his case today that he did not receive the hearing invitation.  On 30 August 2005 the Tribunal wrote again to the applicant at the post office box address advising him that it had considered the material relating to his case and had made its decision.  It told him that the decision would be handed down on 20 September 2005.  There is no evidence before me that the applicant attended the handing down but he was sent a letter also by registered post on 20 September 2005 to the post office box address advising him what he could do.  The applicant says he did not get that letter either. 

5. Notwithstanding that the applicant did not get that letter he must somehow have found out that his application to the Tribunal had been unsuccessful because he brought proceedings in the Court by way of an application filed on 30 September 2005 only 10 days after the handing down of the decision.  In that application he gave his address at Bankstown.  But in an application for a fee waiver completed on 30 September 2005 he provided another P O Box postal address, this time in Hurstville.  After the matter came into this court it would appear that the Bankstown address was the one used for the applicant in all correspondence.

6. I set out this history in some detail because this is not the first case that I have had where what would appear to be totally inappropriate post office box addresses have been given to the Tribunal and thereafter by applicants who then come before this court complaining that they did not receive documentation.  I urge the department to give some thought to this problem so that every effort can be made to ensure that persons who apply for visas are at all times contactable.  This particular applicant, who clearly speaks no English whatsoever, must have had someone to fill out the forms that he completed and it may be appropriate that persons who fill in forms for other people should be identified.  This would include the detailed statement found at [CB 27‑29] which is also typewritten.  Some applicants may consider this to be an imposition upon their privacy but it is an attempt to avoid the situation that this applicant says now exists, namely that he knew nothing whatsoever about the Tribunal hearing, although it is possible for the reasons which I gave in connection with his filing of the application in this court that that submission may not be entirely correct. 

7. Unfortunately for the applicant the legislation has sought to protect decisions of the Tribunal that may have been made in the absence of the person claiming protection. Under s.425(1) of the Migration Act 1958 (the “Act”) the RRT must invite the applicant to appear before it to give evidence and present arguments. Section 425A provides that the notice under s.425(1) must be given by one of the methods specified in s.441A. Subsection (4) of that section describes:

   “Despatch by pre-paid post.”

   which was the method used by the Tribunal for this invitation. 

8. Section 441C (4) provides that if the Tribunal gives a document to a person by the method described in s.441A(4) the person is taken to have received the document seven working days after the date of the document provided that it had been sent within three days of its date. In this case the record shows that the letter was sent on the day that it bears. The applicant is therefore taken to have received the letter on 4 August regardless of whether or not he actually received it. In Murphy v Minister for Immigration [2004] FCA 657 Spender J considered the question of service under identical provisions in s.494C and he found at [69] that:

   “The person is ‘taken to have received the document’ in the circumstances of this case, seven working days after the date of the document.  In  my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification.  There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only ‘until the contrary is proved’.”  [emphasis added].

9. Similar views were expressed by the Full Court in XIE v Minister for Immigration [2005] FCAFC 172. I am indebted to the helpful written submissions of Ms Quinn for these extracts of the relevant law. As the relevant law was complied with by the Tribunal the applicant was deemed to have received the letter inviting him to attend a hearing and therefore s.425 was complied with and the Tribunal was entitled to proceed as it did in his absence pursuant to s.426A(1).

10. In the statement which was annexed the to the applicant’s original claim and found at [CB 27-29] he explains that he seeks the protection of Australia because of his association with the Falun Gong movement whilst he was in China.  He claimed to have been a practitioner of Falun Gong since 1996 and to have been sent to a labour camp and treated in a manner that could be considered persecution in 2001 as a result of his manifesting his association with that movement. 

11. The Tribunal considered this statement but on its face it was not sufficient to allow the member to make a decision favourable decision to the applicant.  The Tribunal required further information from him which he could have given had he attended a hearing.  At [CB 75] the Tribunal refers to these matters stating:

    “The Tribunal has not had the opportunity, through a hearing or otherwise, to obtain further information to determine the veracity of the applicant’s claims, and whether they establish persecution within the meaning of the Convention and the Act such that the Tribunal can be satisfied that he meets the criteria for recognition as a refugee.”

12. The Tribunal then goes on to set out in dot form nine matters upon which it felt it required additional information from the applicant before stating:

    “On the limited evidence before it, the Tribunal cannot be satisfied that the applicant is or has been a Falun Gong adherent, that he has been subject to adverse attention for that or any other reason in the past;, or that the alleged past events or any other factors give rise to a well-founded fear of persecution within the meaning of the Convention in the reasonably foreseeable future.  The Tribunal cannot be satisfied that he is a refugee.” 

13. The Tribunal’s expression of its views was in accordance with the Act. Section 65 requires the Minister to be satisfied that a person is one to whom Australia owes protection obligations. This is a positive obligation. It is not a question of the Tribunal not being satisfied. It is the responsibility of the applicant to make out the best case he or she can. As Kirby J said in Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [78]:

    “The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out and find any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal’s duties. The function of the Tribunal as of the delegate is to respond to the case that the applicant advances.”

    These views were echoed by Hely J in SZATG v Minister for Immigration [2004] FCA 1595 at [36].

14. On 25 January 2006 the applicant filed an amended application and an affidavit. The ground that he gave in the amended application was that he had not received the hearing invitation but in the affidavit he says that the Tribunal breached s.424A of the Act by not giving him an opportunity to give additional information to rebut the country information upon which the Tribunal relied.

15. I have already dealt with the hearing invitation question. In regard to the allegation that the Tribunal failed to comply with s.424A of the Act, I would note that the Tribunal did not rely on any country information in order to come to the decision which it did. As has been set out in these reasons the Tribunal merely expressed a lack of satisfaction because of its inability to question the applicant on the nine points that it considered relevant. For these reasons I am unable to provide the applicant with the relief he seeks. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $2,800.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: