SZHKG v Minister for Immigration

[2007] FMCA 286

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHKG v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 286

MIGRATION – Review of RRT decision − where the applicant declined an invitation to attend the Tribunal hearing − where the Tribunal was not satisfied of the applicant’s claims on the basis of a lack of information about them − where the Tribunal sent the invitation to the wrong address − where the invitation was in any case received by the applicant’s migration agent − whether the applicant suffered any disadvantage from the failure to properly address the invitation − whether the court should exercise its discretion to remit the matter to the Tribunal − whether the applicant had any further information to add to his statement before the Tribunal − where the migration agent advised the applicant not to appear − whether the conduct of the migration agent affecting the decision of the applicant not to attend can amount to jurisdictional error.

Migration Act 1958, ss.425A(2), 441A, 441G

NAST v Minister for Immigration [2004] FCA 86
Dranichnikov v Minister for Immigration [2003] 197 ALR 389
Abebe v Commonwealth of Australia [1999] 197 CLR 510
SZATG v Minister for Immigration (2004) 215 ALR 358

Applicant: SZHKG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3048 of 2005

Judgment of: Raphael FM

Hearing date: 2 March 2007

Date of Last Submission: 2 March 2007

Delivered at: Sydney

Delivered on: 2 March 2007

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the Respondents: Mr G. Kennett

Solicitors for the Respondents: Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $5000.00 pursuant to Part 21, Rule 21.02(2)(a) Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3048 of 2005

SZHKG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

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 15 December 2001. On 14 January 2002 he lodged an application for a protection (XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 23 April 2002 a delegate of the Minister refused to grant a protection visa and on 23 May 2002 the applicant applied for a review of that decision.

2. On 13 March 2003 the Tribunal wrote to the applicant 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 applicant was invited to a hearing on 2 May 2003. With the letter was provided a response to hearing form. The response to hearing form was completed and signed by the applicant. It advised the Tribunal that the applicant did not wish to go to a hearing. It was dated 31 March 2003. On 26 May 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 20 June 2003.

3. The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations under the Migration Act 1958 (the “Act”) are found in a statement typewritten and unsigned between [CB18] and [21]. In short, the applicant claimed that he was a practitioner of Falun Gong. He had started Falun Gong exercises because of his health which had improved as a result. He claims to have become a leading member of the Falun Gong organisation in his home town and to have organised several demonstrations at the local education college. As a result he came to the interest of the police who harassed him and prevented him from obtaining proper employment. The harassment from the police caused problems within his family and his marriage collapsed. He became depressed and turned again to Falun Gong for assistance.

4. The applicant claimed that after the incident of self-immolation in Tiananmen Square in 2001 he got together with other practitioners to discuss the political situation. He said that only a short while after the meeting commenced the police came in. He managed to escape and then with the assistance of friends obtained the documentation which allowed him to flee to Australia.

5. The information provided by the applicant and précised above was also supplied to the delegate who sent to the applicant a procedural fairness letter, a copy of which is found at [CB36]-[37]. The letter was also sent to the applicant’s migration agent but it does not seem to have been responded to. However, it would have been clear from the letter that the authorities in Australia had some concerns about the veracity of the claims. The Court Book reveals that the letter sent to the address given by the applicant as his home address was returned.

6. When the matter came before the Tribunal it took the view that the information provided by the applicant was not sufficient to allow it to be satisfied that the applicant was a person to whom Australia owed protection obligations because :

   “The Tribunal does not have sufficient detailed information about his claims for it to be satisfied that he meets the definition of refugee under the Convention. The Tribunal has a number of unanswered questions some of which are discussed below relating to the applicant’s claim that he left China because he feared the police will arrest him for his practice of Falun Gong.  If the applicant had attended the hearing of his claims the Tribunal would have discussed with him a number of important aspects of his claims which the Tribunal has difficulty accepting on their face.  In the circumstances the Tribunal is led to conclude for the following reasons that the applicant is not in genuine fear of persecution nor that there is a real chance that he will face persecution on return to China”

   The Tribunal then sets out in one paragraph its reasons for failing to be so satisfied. 

7. As Allsop J said in NAST v Minister for Immigration [2004] FCA 86:

   “[6] …What it is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well-founded fear of persecution under the Refugee Convention.

   [7] Pursuant to the statute, if the Tribunal is satisfied of all relevant things it must grant a visa. Also, if the Tribunal is not satisfied of all relevant things, it must not grant a visa. Here, the Tribunal had the claims of the applicant in writing before it. It gave notice of a hearing to the applicant because the Tribunal said that it was not satisfied on the papers alone of the version of events given by the applicant.”

8. The same situation pertains in the instant case. It is the applicant’s duty to make out his claim; Dranichnikov v Minister for Immigration [2003] 197 ALR 389. Abebe v Commonwealth of Australia [1999] 197 CLR 510 at [187]. SZATG v Minister for Immigration (2004) 215 ALR 358 at [36]. When the Tribunal evinces a lack of satisfaction in a case such as this where the applicant does not appear there really is very little prospect of an applicant establishing some form of jurisdictional error except possibly in cases of a failure to comply with formalities.

9. In this particular case there is a small failure to comply with formalities. The applicant gave as his address to the Tribunal a unit in Hurstville. He gave as his mailing address a PO Box in the Haymarket. He gave as his nominated agent under section C a Mr Feng Jiang, a migration agent, with an address in the Haymarket. It doesn’t take too much imagination to infer that the PO Box in the Haymarket belonged to the migration agent. The letter inviting the applicant to a hearing was sent to him care of the migration agent at the PO Box rather than at the street address. Incidentally, another copy of the letter was sent to the applicant at the street address at Hurstville at which he claimed to be living. This document was returned because as the applicant told me today he fairly quickly moved out of that Hurstville address after he obtained employment.

10. It could therefore be argued, faintly I believe, that the Tribunal had failed to comply with all the provisions of the Act relating to the delivery of the hearing invitation. But the fact is that the hearing invitation arrived at the migration agent’s offices because the applicant today told me that he spoke to the migration agent about it and the migration agent advised him not to appear. He therefore signed the form and didn’t appear.

11. The applicant has a number of complaints about the conduct of the migration agent with which I will deal shortly. But for the moment it seems to me sufficient to say that I do not believe that what occurred constituted a failure to comply with the provisions of the Act relating to proper delivery of the hearing invitation. If I am wrong in that assumption I would, as I said I would have done in SZBLY v Minister for Immigration [2005] 219 ALR 707, have declined to exercise my discretion to remit the matter to the Tribunal on the ground that the applicant has suffered no disadvantage whatsoever from any failure properly to address the invitation.

12. I should also point out that Mr Kennett in his helpful written submissions at paragraph 12 to paragraph 17 deals with this very matter. He cites the decision of Mansfield J in Makhu v Minister for Immigration [2004] FCA 221 and makes reference to the various relevant sections of the Act namely ss.441G(1) and (2), 425A(2) and 441A. Those submissions put some forensic meat on the findings that I have made earlier concerning the delivery of the notice and to the extent necessary I would respectfully adopt them.

13. Before me today the applicant expressed his reasons for the Tribunal’s falling into jurisdictional error in the manner in which it came to its decision in the form of a diatribe against his migration agent. He told me that he had listened to his agent but he did not know what sort of job he did. He told me that the agent had told him ‘leave everything to me’ and he did not know how well he had done what had been left to him or whether he had presented the case properly. As a result the applicant argues the decision was unfair to him. He told me that he had just signed documents that the agent had put in front of him and he didn’t know what it was that he was signing. He thought that he had over-trusted his agent. He told me that he did not go to the hearing because the agent had told him that he would not give the Tribunal much help if he did. He didn’t think his agent had earned the money that he had paid him. For example, when he changed his address he had not been told by the agent that he ought to inform the Department or the Tribunal. He realised that after the Tribunal had handed down its decision he had a lot to say that had not been said. He wanted to go back and have his case heard properly.

14. One must have sympathy for people who arrive on the shores of this country without any great knowledge of the language and entrust themselves to persons who claim to have some form of qualification or endorsement and who are then badly let down. This Court is no stranger to the story told by this particular applicant today. It happens all too frequently. It is perhaps time that the migration agent industry was better policed and that the migrant communities who resort to them were warned of the prevalence of persons who take advantage of those more unfortunate than themselves. Of course this criticism does not apply to all migration agents. It may not apply to the one who acted in this case. He has not had an opportunity to respond to the criticism made of him. There are some who this Court sees quite clearly do an excellent job but in the last few weeks I have encountered more who have not.

15. In Minister for Immigration v SZFDE & Ors [2006] FCAFC 142 the Full Bench, in a majority decision, held that a decision of the Tribunal was not affected by the fraud of a migration agent in circumstances where the applicant complained that the migration agent had advised her not to attend the RRT hearing. Allsop J said:

    “[136] I do not think that it is correct to say that the decision of the tribunal was induced or affected by fraud. …The parties did not attend a hearing to which they were invited, on the facts, because of the dishonest advice of their own agent. The decision itself was made, without the benefit of the participation of the respondents, but unaffected, and certainly not induced, by fraud.”

    His Honour’s view was supported by that of Graham J who said:

    “[238] …the sufficiency of an invitation can be addressed the moment the invitation has been given. Viewed in that way, any fraudulent advice that may have been given to the first-named first respondent by her de-registered migration agent who no longer held a practising certificate as a solicitor, could not bear upon the question of whether or not an invitation had been duly given to the first-named first respondent to appear before the tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

16. In the instant case the applicant accepted the advice not to attend the hearing even though there had been served upon him by the delegate a letter requesting information which would have gone to advancing his claim and which went unanswered.  Whilst it is not for me to speculate upon the mind of the applicant or what really may have transpired between him and the agent, one does feel that a person seeking to remain in the country because he fears for his life or that he might be persecuted if he returned to his homeland would take slightly more interest in the activities of those who are endeavouring to assess his right to protection than this applicant apparently did.

17. In all the circumstances I am unable to say that the Tribunal made an error of law in the way in which it came to its decision in this case.  I am unable to say that the manner in which the hearing invitation was sent constituted a jurisdictional error but if I am wrong in that I will decline to exercise my discretion to remit this matter to the Tribunal because I have heard nothing from the applicant that would indicate that he had any more of a story to tell than that contained in his statement.  I would also add that in regard to his complaints concerning his migration agent which I have accepted only for the purposes of coming to a decision in this case and not as indicating that I accept them as statements of truth there was no evidence whatsoever other than the assertions from the bar table.

18. I dismiss the application. I order that the applicant pay the respondent’s costs which I asses in the sum of $5000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: