SZHJK v Minister for Immigration

Case •

[2007] FMCA 722

•

3 May 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHJK v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 722
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his religion – credibility – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425, 426A, 474
Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration & Multicultural & Indigenous Affairs v SZFML (2006) 154 FCR 572
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
Applicant: SZHJK
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2989 of 2005
Judgment of: Scarlett FM
Hearing date: 3 May 2007
Date of Last Submission: 3 May 2007
Delivered at: Sydney
Delivered on: 3 May 2007

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondents: Mr Smith
Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

  1. The title of the first respondent is changed to Minister for Immigration & Citizenship.

  2. The application is dismissed.

  3. The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2989 of 2005

SZHJK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The Tribunal's decision, which was handed down on


    13th September 2005, was to affirm the decision of a delegate of the minister not to grant a protection visa to the applicant. The applicant seeks judicial review of that decision, by means of an application filed on 17th October 2005. 

  2. The background to this matter is that the applicant is a citizen of the People's Republic of China.  He arrived in Australia on


    10th October 2004.  He applied for a protection (Class XA) visa on


    23rd November 2004.  That application was refused on 6th April 2005.  On 5th May 2005, the applicant applied to the Refugee Review Tribunal for a review of that decision.  The applicant did not lodge any additional documentary evidence with his application for review. 

  3. The Tribunal wrote to the applicant on 19th July 2005, inviting him to attend a hearing.  That hearing was scheduled to take place on


    Monday, 15th August 2005.  The applicant sent back a response to hearing invitation, indicating that he did wish to attend the hearing.  However, on the day of the hearing, the applicant faxed a medical certificate to the Tribunal, advising that he would be "unable to work" from that day until 17th August.  The Tribunal then wrote to the applicant and advised him that it had rescheduled his hearing until 2:00pm on 18th August 2005.  The applicant did not attend the hearing on that date. 

  4. The following day, 19th August 2005, an officer of the Tribunal contacted the applicant's agent, advising her that the applicant had not attended the hearing.  The Tribunal decision says:

    She confirmed that the applicant had been advised of the hearing date and she was not aware that he had failed to attend the hearing.[1]

    [1] See Court Book page 72

  5. The Tribunal member then decided to exercise the power given to the Tribunal under s.426A of the Migration Act to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal. The Tribunal decision was signed on


    23rd August 2005 and handed down on 13th September.  A copy of the Tribunal decision record can be found at pages 66-73 of the Court Book.

  6. The Tribunal, in that decision, summarised the material before it and noted that the applicant claimed that he grew up in a Catholic family in Fujian Province.  He eventually joined an underground church and, after some time, he heard that his father had been arrested by the Public Security Bureau during a religious meeting at the family home. 


    He said that his father had been detained, and died after two weeks in detention.  The applicant's case is that he continued to conduct underground church meetings and, in 1995, he was arrested and detained.  During his detention the applicant was arrested, beaten and even had his arm broken.  Eventually, the applicant was released from detention.  The applicant set out that he left China in 2004 and fears to return to China because of his religious beliefs. 

  7. The Tribunal noted the history of the invitations given to the applicant to attend the hearing, and noted that he had not attended.

  8. The Tribunal's findings and reasons are set out on pages 72 and 73 of the Court Book.  The Tribunal was satisfied that the applicant is a citizen of the People's Republic of China.  The Tribunal noted, however, that the applicant did not attend the hearing and that the applicant's claims were untested and stated in the most general of terms.  The Tribunal set out the deficiencies in the information provided by the applicant and, on the basis that the applicant had not provided the information that the Tribunal required, was unable to accept that, if he were to return to the People's Republic of China, he would face persecution for reason of his Christian beliefs or his previous activities.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention. 

  9. In his application to the Court, the applicant sets out his belief that both the Immigration Department and the Refugee Review Tribunal's decisions were unfair and unacceptable.  He sets out that he is a Christian and states that he and his family were persecuted because they practised Christianity privately, in approved churches.  He also claims that the decision made by the Tribunal was wrong and that the ill‑treatment and persecution that he received is persecution within the meaning of the Refugees Convention.

  10. The applicant filed a written submission on 8th February 2006.  In that submission he sets out his history and sets out his claims that he was persecuted because of his religious beliefs.  He also claims that, if he were to return to China and continue to participate in religious activities, he is sure that he would be detained and mistreated. 

  11. At the hearing before me today, the applicant said that he was sick and could not attend the hearing of the Tribunal.  He also said that he had nominated one of his friends to receive correspondence on his behalf but he did not receive some of the letters.  He said that he needed another opportunity to appear before the Tribunal and he would submit further material to the Tribunal.  In reply to a comment to the Court by Mr Smith of counsel, who appeared for the minister, to the effect that the applicant had not attended the hearing, even though the Tribunal had telephoned his authorised recipient, who said that he had been advised of the hearing, the applicant reiterated that he was still sick on the later date, which was why he did not attend. 

  12. The minister submits that the applicant's application for review contains only a recital of facts and does not expose any jurisdictional error in the Tribunal's decision, either by way of procedure or substance.  The Minister further submits that the Tribunal decision turned on its inability to be satisfied, on the material before it, of any of the factual matters that the applicant claimed had occurred.  Again, the minister submits that there was no error in the procedure that the Tribunal adopted. 

  13. The decision makes it quite clear that there was an insufficiency of evidence before the Tribunal to enable it to be satisfied that the applicant met the requirement for a visa.  The applicant had already been informed, by the Tribunal's letter of invitation to the hearing that the Tribunal was unable to make a decision in his favour, on the basis of the information that was currently before it.  The applicant did not either attend the hearing or provide any further written evidence to the Tribunal. 

  14. In the circumstances, it is hardly surprising that the Tribunal was not satisfied that he met the requirements for a protection visa.  There are many authorities which support the view that the inevitable result of non‑attendance by an applicant at a Tribunal hearing will be the failure of the application.  In particular, I refer to SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811, and SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306. Both of those decisions are appeal decisions from this Court and are, therefore, binding on this Court. The Tribunal did not fall into error when it was found it was unable to be satisfied about the factual matters of the applicant's claim, on the basis of the material before it.

  15. I have been referred to Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73 at [17], SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15], and Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214 at [71] to [76].

  16. The procedure adopted by the Tribunal was correct in all of the circumstances. The invitation to attend the hearing under s.425 of the Act complied with the requirements of s.425A and reg.4.35D.

  17. The hearing was rescheduled at the request of the applicant. 


    The applicant required reasonable notice of that rescheduling (see Minister for Immigration & Multicultural & Indigenous Affairs v SZFML (2006) 154 FCR 572 at [82]).

  18. Counsel for the Minister submits that the notice advising of the rescheduled hearing was sent by facsimile to the applicant's adviser and the hearing was set for a time after the expiry of the dates on the applicant's medical certificate.  Accordingly, he submits that there can be no argument that the notice provided to the applicant was not reasonable. 

  19. I am satisfied that that argument is correct and I am satisfied that the applicant has not made out any jurisdictional error. 

  20. The applicant is not legally represented and I have read through the decision and the supporting documentation, independently of the applicant's claims, and I am satisfied that there is no arguable case for any jurisdictional error. Accordingly, the Tribunal decision is a privative‑clause decision, as defined by s.474 of the Migration Act, and, as a privative-clause decision, it is not subject to a declaration or any orders in the nature of certiorari or mandamus.

  21. The application will be dismissed with costs.  I will make a formal order changing the title of the first respondent Minister to "Minister for Immigration & Citizenship". 

  22. There is an application for costs on behalf of the minister in the sum of $5,000.00.  Those costs are inclusive of counsel's fees and, in my view, are an appropriate sum to be awarded.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  11 May 2007


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