SZHGI v Minister for Immigration - [2006] FMCA 511

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHGI v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 511

MIGRATION – RRT decision – applicant failed to attend hearing – Tribunal refused request to reschedule – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.420(1), 426A, 426A(1), 483A, Pt.8

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

Applicant:

SZHGI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2443 of 2005

Judgment of:

Smith FM

Hearing date:

3 April 2006

Delivered at:

Sydney

Delivered on:

3 April 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms K McNamara

Solicitors for the Respondents:

Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2443 of 2005

SZHGI

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 31 August 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 7 July 2005 and handed down on 28 July 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.483A is the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 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 she qualifies for a refugee visa. I do not have power to direct a further hearing by the Tribunal just because I think the applicant deserves to be given a further opportunity to attend a hearing.
The applicant arrived in Australia as a tourist in November 2004. She applied for a protection visa on 7 January 2005, assisted by a registered migration agent, Mr Dun Ping Feng. A typed statement attached to her visa application made general claims that the applicant joined Falun Gong in 1998, practised Falun Gong for many years, and feared punishment as a Falun Gong practitioner in her country of nationality, The People’s Republic of China. However, no details of her practice of Falun Gong were given, and no history of persecution was claimed.
A delegate refused the application on 31 March 2005. The statement of reasons of the delegate, which was sent to the applicant at her postal address and to her agent, drew attention to the lack of substance in her claims. The delegate said:
In the absence of evidentiary material and substantiated claims I am not satisfied that the applicant is a genuine, committed Falungong practitioner. As I do not accept that the applicant is a committed Falungong practitioner, I also do not accept that she will be persecuted on return to China.
On 26 April 2005 an application for review was lodged by the applicant. It did not disclose nor appoint an agent, and gave her residential address at Stanmore in Sydney and a mailing address at a post box at Westgate. The subsequent course of the proceedings is described by the Tribunal in its reasons:
On 27 April 2005, the Tribunal wrote to the applicant advising that the Tribunal had received the application for review. This letter was sent to the applicant’s mailing address as provided by the applicant in the review application. The Tribunal informed the applicant that she should immediately advise the Tribunal of any change of address and telephone number and “If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice”. The Tribunal’s letter also explained that the applicant might be invited to a hearing and that a “hearing is your opportunity to give the Tribunal evidence to support your application”. There is no evidence before the Tribunal that the applicant did not receive this letter.
On 23 May 2005, the Tribunal wrote to the applicant, advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 10.00am on 6 July 2005. The applicant was also advised that if she did not attend the hearing and a postponement was not granted, the Tribunal can make a decision on the case without any further notice. This letter was sent by registered post to the mailing address provided by the applicant in the review application.
On 8 June 2005, the applicant responded to the hearing invitation by advising that she wanted to attend the hearing listed on 6 July 2005. However, the applicant did not attend the hearing and the Tribunal had no explanation.
At 16.51 on 6 July 2005, the Tribunal received a facsimile from the applicant. The applicant stated that she did not attend the hearing on the morning of 6 July 2005 because “I went to the City but I could not find the location. Can I get one more chance?” The applicant also stated that although she had previously asked for a Mandarin interpreter, she now wanted a Chinese interpreter speaking Fugqing or Fuzhou dialect.
The Tribunal has considered the applicant’s request for another hearing but has serious concerns about such a request given the circumstances. The applicant was notified of the hearing on 23 May 2005, approximately six weeks prior to the hearing date. On 8 June 2005, she advised that she intended to attend the hearing. The hearing was listed for 10.00am. The Tribunal booked an interpreter who waited until at least 10.30am before discharged. There were no attempts whatsoever by the applicant to contact the Tribunal by telephone to advise of any difficulties she may have been having in locating the premises. She waited until virtually close of business to advise that she could not find the location. Further, at no stage prior to the facsimile of 6 July 2005, did the applicant request a Chinese interpreter speaking Fugqing or Fuzhou dialect. Indeed when she responded to the hearing invitation on 8 June 2005, she requested a “Mandarin” interpreter. In light of these circumstances, the Tribunal is satisfied that the applicant has had ample notice of the hearing and the location and has had ample opportunity to find the Tribunal’s location and request a particular type of interpreter. Section 420 of the Act provides “The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick” (Subsection 1). The Tribunal is satisfied that if the applicant were to be offered another hearing, it is entirely plausible that she would not attend the hearing which would delay this matter without justification or reasonable cause by at least three months. The Tribunal is satisfied that it has complied with its obligations to conduct a fair and just review. The Tribunal cannot condone the actions of an applicant who is clearly not genuine about pursuing her case. The applicant is seeking asylum in Australia, yet she appears to have made no effort to ensure that she attends a hearing about which she clearly knew for about six weeks.
In light of the above comments and in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant’s request for another “chance” is unreasonable and unwarranted. In accordance with Section 426A of the Act, the Tribunal has decided to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
I have considered the evidence in the Court Book, and am satisfied as to the factual accuracy of the Tribunal’s above narrative. It is also a complete account of the circumstances of which the Tribunal was aware.
I shall consider below the sufficiency of the reasons given by the Tribunal for declining to appoint a rescheduled hearing. I do, however, note that the letter signed by the applicant which requested the rescheduling shows that it was transmitted to the Tribunal by fax at 4.51 pm on 6 July 2005. The document has a file note signed by the member constituting the Tribunal, which reads:
I received this fax at about 10.45 am on 7/7/05. I had already finalised my decision. I have recalled my decision and amended it accordingly. I have decided not to reschedule the hearing.
There is therefore no doubt that the Tribunal did receive the applicant’s request, and did consider the issue of rescheduling a hearing in the light of the applicant’s request.
The Tribunal’s reasons for affirming the decision of the delegate were short:
Without further details, clarifications and/or corroborative evidence, the Tribunal is not satisfied that the applicant and/or indeed her husband are Falun Gong practitioners, nor is the Tribunal satisfied that they were involved in any Falun Gong activities. It follows that the Tribunal is not satisfied that she escaped arrest on many occasions because she had good relationships with officers in the local government or that if she were to return, she would be “one of those who hurl oneself willingly into the net to get punished”.
The application to this Court contains one ground of review, which complains that the applicant “was denied an opportunity to appear before the Tribunal and to present oral evidence”. The application says:
The applicant tried to find the location of the Tribunal on the scheduled hearing date but, due to her incompetence to speak English and unfamiliarity to the city area, she could not find the Tribunal. She then returned home and faxed to the Tribunal and explained why she was absent, and requested a new hearing be scheduled. The Tribunal unfairly denied her request.
The applicant has filed an affidavit which claims:
1.I arrived in Australia in November 2004. I cannot read or write English. I read and write Hokien which is the dialect of Fujian Province in China.
2.On 6 July 2005 I caught a bus from my house to Central at about 9.30 am. When I arrived at Central I started walking towards the Park. I could not read the street signs and could not find anyone to help me. I walked for about an hour and then became scared so I went home.
3.When I arrived home I rang Mr Gao, a Migration Agent, and asked him “what can I do?”
4.Mr Gao advised me “you need to send a facsimile to the RRT telling them what happened and asking for another hearing”.
5.I asked Mr Gao to prepare such a facsimile for me and then I went to his office to sign it and then faxed it to the RRT that day.
At the hearing today the applicant was accompanied by a friend who resides at her address and comes from the same region of China. The Court had arranged for a Mandarin‑speaking interpreter, but was unable to arrange for an official interpreter speaking her own dialect, nor was the Court able to arrange for a telephone interpreter speaking that dialect. It therefore proved impossible for the Minister’s representative to cross‑examine the applicant on her affidavit.
The applicant made submissions to me using the combined assistance of her friend and the Mandarin‑speaking interpreter, and I am satisfied that she was able sufficiently to communicate all that she wished to say to me. She agreed that she had received and understood the invitation to attend the Tribunal hearing. She gave further explanations for missing the hearing, which departed somewhat from her affidavit. For example, she claimed that she could not seek help from her agent, Mr Gao, at any time on the date of the hearing because he was overseas. She claimed that the letter sent by facsimile to the Tribunal was prepared by a stranger whom she met on the street who spoke her language. She denied that she had deliberately avoided attending the Tribunal hearing.
Ultimately, I have decided that I do not need to make findings of fact as to the truth of the applicant’s explanations for not attending the Tribunal hearing. This is because I have decided that the Tribunal’s exercise of its discretion to appoint a rescheduled hearing has not been shown to have miscarried, even if I were to accept the applicant’s evidence.
Under s.426A(1) of the Migration Act, the Tribunal clearly had the power, which it exercised in the present case, to decide the matter without taking further action to allow or enable the applicant to appear before it at a rescheduled hearing. That power is available where an applicant does not appear after having been properly sent an invitation. I am satisfied that both the preconditions for the power were satisfied in the present case.
There is established authority that the power to proceed under s.426A(1) is available to the Tribunal even where, in fact, an applicant is unaware of the appointed hearing or has, unknown to the Tribunal, another good explanation for missing the hearing (c.f. VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [16] applied in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12]). In such cases, the Tribunal is under no obligation to appoint a rescheduled hearing if requested, but it is obliged to consider the proper exercise of the discretion to appoint a rescheduled hearing in the light of such circumstances as are known to it.
In the present case I am satisfied the Tribunal has addressed the explanation given by the applicant in her request. The Tribunal has formed an adverse opinion about her explanation, but I am not persuaded that this opinion was not open to the Tribunal. The applicant had been living for six months at Stanmore, an inner city suburb which is a short bus ride from Chinatown in the city, where her agent had his office. The location of the Tribunal was clearly identified in the letter sent to the applicant, and could easily have been found by the applicant with the assistance of her agent or other helpers. The applicant had several weeks to identify the location of the address where she had to attend.
In these circumstances, in my opinion, it was open to the Tribunal to view with scepticism the explanation that the applicant put forward in the letter sent to it at the end of the day of the hearing. I consider that its decision to proceed to finalise the review without appointing a further hearing has not been shown to have miscarried. I am not persuaded that the Tribunal’s decision was affected by jurisdictional error in relation to the procedures it followed.
No challenge has been made by the applicant in relation to the substantive reasoning followed by the Tribunal, and in my opinion none is available.
For the above reasons, I consider that the Tribunal’s decision was not affected by jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 18 April 2006