SZHGL v Minister for Immigration
[2006] FMCA 776
•5 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHGL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 776 |
| MIGRATION – RRT decision – Chinese applicant – claimed persecution as member of ‘Shouter’ Christian sect – did not attend hearing – no jurisdictional error found. |
| Migration Act 1958 (Cth), s.424A, 425 , 426A, 426A(1), 426A(2), 441A(4), 441C(4), 441G, 474, 483A Judiciary Act 1903 (Cth), s.39B |
| SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 213 ALR 439 SZEUZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 193 FLR 83 SZHGK v Minister for Immigration & Anor [2006] FMCA 770 VNAA v Minister for Immigration (2004) 136 FCR 407 |
| Applicant: | SZHGL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2830 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 5 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the first Respondent: | Ms J Bautista |
| 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 2830 of 2005
| SZHGL |
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 4 October 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 7 July 2003 and handed down on 28 July 2003. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and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 the Federal Court's powers 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's 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 claims should be believed, nor whether he qualifies for a refugee visa. I do not have power to direct the Tribunal to provide a second opportunity for the applicant to attend a hearing unless I am persuaded that its decision was affected by jurisdictional error.
The present applicant arrived in Australia on 1 April 2002, with his wife, and it would seem, his son. On 14 May 2005, an application for a protection visa was lodged on his behalf by an agent, Ms Orchid Sit. In substantive terms, it was completed in an identical fashion to an application which was filed on the same day by the same agent on behalf of the applicant’s wife. I have described the significant elements of the application in a judgment which I have just delivered (see SZHGK v Minister for Immigration & Anor [2006] FMCA 770). In particular, the duplication included the exclusion of other family members as applicants covered by each application, and the presentation of refugee claims by an attachment which was a copy of the attachment which I have set out in full in the wife's case.
The course of decision by the delegate followed the same course as in the wife's application, and a decision was made by the same delegate. The same correspondence with the applicant and his agent occurred in relation to a request that he attend an interview by the delegate, and he also did not attend such an interview. The delegate's decision in his case, not unexpectedly, followed a similar outcome and content as the decision in relation to the wife.
The applicant applied to the Refugee Review Tribunal on the same day as his wife, and his application similarly appointed Ms Orchid Sit as his authorised recipient to act on his behalf. It contained the same typed attachment giving the reasons for the application, which I extracted in full in the wife's case.
As with his wife's application, the application for review made no suggestion to the Tribunal that it should proceed in tandem with the wife's application and, on the evidence before me, no such request was ever made to the Tribunal.
By letter dated 23 May 2003 sent to the applicant and his agent, including to the applicant at his stated home address, the Tribunal invited the applicant to attend a hearing. A letter in exactly the same terms was sent on the same day to his wife at the same addresses, including their home address, except that the letter to the wife appointed an earlier hearing date. Her hearing was appointed for
20 June 2003 at 1pm, and the applicant's invitation was to a hearing on 7 July 2003 at 10am.
As I have indicated in my judgment concerning the wife, the wife did attend her hearing accompanied by the agent. Since they obviously received the invitation to the wife’s hearing, it is difficult not to infer that the applicant also received actual notice of his invitation, and was also aware of his wife’s earlier hearing. He has, however, denied having notice of his hearing in unsworn evidence to me, to which I shall refer below.
As with the invitation sent to the wife, a response to hearing invitation was lodged on behalf of this applicant on the same day, and it was completed in the same manner as I described in the wife's case. The response clearly did not ask the Tribunal to receive evidence from "somebody else", and containing no request for a joint hearing.
In fact, neither the applicant nor his agent attended the appointed hearing on 7 July 2003, and no communication was made to the Tribunal to explain his absence. Although it does not refer to the provisions of s.426A, the Tribunal was plainly aware that s.426A(1) empowered it to decide the case without taking further steps to allow or enable the applicant to appear. In my opinion, its exercise of that power was not attended by jurisdictional error.
In its statement of reasons, the Tribunal set out country information of the same type which I have described in my judgment concerning the wife's matter. Under the heading ‘Findings and Reasons’, it said:
I am satisfied that the Applicant is a Chinese citizen and that he arrived in Australia in 2001. Unfortunately his other claims are not supported by any evidence. They are not even supported by evidence which the Applicant himself could give. I accept that some members of the religious group known as the “Shouters” have been arrested, detained, and otherwise persecuted in China. It has been the experience of this Tribunal that at least some applicants who claim to belong to the “Shouters” religious group know so little about the sect that they could not possibly have been members or adherents. In the circumstances I am not satisfied that the Applicant’s claims are true.
I do not accept that the Applicant was a “Shouter”, or that he was involved in smuggling bibles, or that he has fled China to avoid harm, or that there is any real chance that he will persecuted should he return
I am not satisfied that the Applicant has a well founded fear of persecution.
In my opinion, the Tribunal's conclusion in relation to this applicant's claims were open to it on the material before it, and I am unable to identify jurisdictional error affecting its decision to affirm the delegate's decision.
The applicant's application to this Court contains grounds contending that the Tribunal ought to have issued a further invitation to the applicant to attend a hearing, and that its decision to proceed "in the absence of the applicant under s.426A of the Act was manifestly unreasonable".
An amended application filed by him makes a similar contention: that there was jurisdictional error in relation to the Tribunal's compliance with procedures required by ss.425 and 426A. It contains the contention:
The second respondent did not give any consideration as to whether the circumstances of the proceeding were such that it should rely on section 426A of the Act to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The second respondent did not give any consideration as to whether it should reschedule the applicant’s appearance before it, or delay its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
In effect, the contention is that the Tribunal's discretion under sub-s.426A(2) to appoint a rescheduled hearing, has miscarried. However, in my opinion this contention is not made out. It is clear, in my opinion, that the preconditions to the Tribunal's power to proceed under s.426A(1) existed, since an invitation complying with s.425A was sent to the requisite addresses, it allowed the requisite period of notice, and the applicant was deemed to have received it, both personally and by reason of the giving of the notice to his agent (see ss.441A(4), 441C(4), 441G and regulation 4.35D). The Tribunal, therefore, was not obliged to appoint a rescheduling, but had a discretion to decide whether to do this.
I have in other cases explored the exercise of the Tribunal's discretion, and also the effect of a failure to consider the implications of a request for a rescheduling in relation to a substantive decision (c.f. SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 213 ALR 439, and SZEUZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 193 FLR 83).
In the present case, there is no evidence as to how the Tribunal addressed considerations bearing on its power to reschedule a hearing, and no adverse inference can be drawn from the absence of explanation in its substantive decision. The Tribunal was under no obligation to publish reasons for that discretionary decision. On the bare circumstances known to the Tribunal which I have set out above, I would draw no inference that the exercise of the discretion to appoint a rescheduled hearing has miscarried in any respect. Indeed, on one view of the evidence, no communication was made to the Tribunal by or on behalf of the applicant which gave rise to any obligation for it even to consider appointing a rescheduled hearing. I therefore reject the contentions raised by the application and the amended application.
The joint ‘outline of submissions’ filed by the applicant and his wife prior to today’s hearing, contains contentions bearing only on the wife's case which I have already addressed. They also repeated the contentions concerning an obligation to a rescheduling of the applicant's hearing which I have addressed above.
A further contention that the Tribunal erred by failing to appoint the same day for a hearing in both cases is rejected, for the reasons which I have given in the wife's matter (see SZHGK v Minister for Immigration & Anor [2006] FMCA 770 at [29]-[30]). The Tribunal in this case was under no obligation to appoint a joint hearing, particularly in the absence of any request.
The applicant when questioned by me today as to his reasons for being absent from the hearing appointed in his case, claimed that he did not attend because his agent had not informed him that a hearing had been appointed. He claimed from the Bar table that the agent kept telling him that he should keep waiting for a hearing. Sworn evidence to this effect was not given, and his affidavit ambiguously claimed: “the migration agent didn't allow me to attend a hearing date at RRT”. As I have indicated above, it is difficult to believe that he was unaware of his hearing appointed for a date subsequent to his wife’s hearing, and not to infer that his failure to attend was a deliberate decision on his part which was arrived at upon advice from his agent.
However, I did not consider it necessary for me to explore his evidence about this, by inviting the applicant to give sworn evidence from the witness box. The Minister's representative did not ask for an opportunity to cross-examine him, taking the position that the truth of his explanation was irrelevant.
In my opinion, even assuming that the applicant did not have actual notice of the hearing to which he was invited, and that this was attributable to fault on the part of his agent, this would not allow the Court to set aside the Tribunal's decision. There is now much authority that the provisions of s.426A(1) empowering the Tribunal to proceed without taking further action is available even where actual notification of a hearing did not occur through no fault of the applicant (c.f. VNAA v Minister for Immigration (2004) 136 FCR 407 at [14]-[15]).
For the above reasons, I have not been persuaded by any contention of the applicant or his wife that jurisdictional error affected this decision of the Tribunal. It was therefore a privative clause decision for which relief is barred under s.474, and I must dismiss the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 1 June 2006
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