SZHKI v Minister for Immigration
[2006] FMCA 1230
•16 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHKI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1230 |
| MIGRATION – RRT decision – Chinese Falun Gong practitioner – did not attend Tribunal hearing – blames wrong advice provided by migration agent – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, 426A, 426A(1), 483A Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41 |
| Minister for Immigration v SZFHC [2006] FCAFC 73 Re B41 of 2003 [2004] FCA 30 SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 SZEYH v Minister for Immigration [2006] FCA 93 VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 |
| Applicant: | SZHKI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3060 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 16 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Counsel for the First Respondent: | Mrs Sirtes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3060 of 2005
| SZHKI |
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 22 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 March 2001 and handed down on 29 March 2001. The Tribunal affirmed the decision of a delegate made on 10 October 2000, 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Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceedings (see Sch.1 cl.41 of the amending Act, and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 subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the decision of the Tribunal and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa. I do not have power to order the Tribunal to give him a further opportunity to attend a hearing, unless I'm satisfied that the Tribunal's decision to proceed without a rescheduled hearing was attended by jurisdictional error.
As I have indicated above, there was many years delay between the decision of the Tribunal and the commencement of the present proceeding. The applicant has filed affidavits which refer to this delay and seek to explain it. He concedes that he received notice of the Tribunal's decision, and of his right to seek judicial review, shortly after the Tribunal's decision. He says that he decided not to appeal to the Federal Court, due to the expense and upon advice that he had no merits. He now says that he has become more confident about his matter, and this is the reason that he has now commenced proceedings.
There is a real issue whether, if jurisdictional error were found, the Court should refuse relief on the ground of unwarranted delay. However, I did not hear full submissions on that issue, and I do not need to rest my judgment upon a conclusion about delay, in view of the conclusions which I express below.
The applicant arrived in Australia on a visitors visa in September 2000. On 22 September 2000 he lodged an application for a protection visa assisted by a migration agent, which had the corporate name of Chinese Legal Affairs Consultants Pty Ltd. The application form requested that correspondence should be sent to that agent at the agent's Haymarket post office box.
Attached to the application was a brief, typed statement explaining why the applicant sought protection in Australia against return to his country of nationality, the People's Republic of China. The applicant claimed to have “learned Falun Gong from 1997 till today for more than three years". He claimed to have practiced Falun Gong, and to have participated in group meetings "learning books and listen to the tapes every Thursday night".
He claimed that at an undisclosed date:
…each Public Security Bureau began to force us to break up the practice meeting, and also confiscate their personal property, some of our members were hit and sworn at.
…
At one weekend on May 2000, my family life has been threatened. A few good friends of mine coming to visit me were considered as meeting illegally, and they warned us if we met again, they will take us into prison.
He claimed that he became worried that his family and friends "being frightened again", and obtained a passport to come to Australia. No details of these claims were ever given to the Department nor subsequently to the Tribunal, and no corroboration was ever provided.
A delegate refused the application on 10 October 2000.
An application for review was lodged by the applicant's agent, who was now identified as Yutang Han, on 3 November 2000. The application authorised the agent to act on behalf of the applicant "in relation to this application". It gave the applicant's home address at Ashfield which had been previously given to the Department, and repeated the address for service which had been previously given to the Department, that being the same post office box as was given by the agent.
The application for review did not seek to advance the applicant's case but said: “I will provide supporting documents soon”.
On 3 November 2000, a letter was sent to the applicant at the agent's post office box, and a copy addressed to the agent was also sent to that address. The letter acknowledged receipt of the application. It drew the applicant's attention to the importance of informing the Tribunal of changes to telephone numbers or addresses, and told him:
If you have any new documents or written evidence, you should send them to the Tribunal at the earliest possible point in the review process.
Similar advice was given in a letter dated 24 January 2001, which was sent to the applicant and his agent at the post office box, with a further copy sent to the applicant's stated home address. The letter invited the applicant to attend a hearing on 2 March 2001 at 10 am. It informed the applicant and his agent that:
The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.
However, no response to any of those letters was received by the Tribunal, although the letter sent to the applicant's home address was returned, marked "Left address".
In its statement of reasons, the Tribunal referred to the correspondence and said:
The Tribunal made inquiries of the Department and the applicant's advisor, but neither had further information as to his whereabouts. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Court documents produced by the respondents contain a case management note by an officer of the Tribunal dated 22 February 2001, recording:
Advisor contacted. He has not heard from the applicant but did confirm the applicant's address as the same one on the Tribunal's system.
The Tribunal's statement of reasons referred to independent information concerning the situation of Falun Gong practitioners in China at that time. Its reasons for affirming the delegate's decision were brief:
The applicant has not claimed that he was a leader in the Falun Gong movement. From his primary application it appears that he was not employed by the government, but rather as a director in a private wholesale operation. He has not stated that he was a member of the Communist party. From the independent evidence cited above, it does not appear that the applicant would be adversely targeted by the authorities for these reasons. It is also apparent that public exercise is not an essential or fundamental part of Falun Gong practice. The DFAT assessment of 9 November 1999 that ordinary adherents who practice privately are unlikely to be the subject or particular attention by the authorities. Without more, the applicant’s fear for reasons of his association with the movement does not appear to be well founded.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.
The applicant's original application in this Court was filed without any apparent assistance. However, it is unnecessary to consider its contentions, since the applicant at the last directions hearing and today has been represented by Mr Zipser of counsel on a direct client basis.
I gave him leave today to file an amended application which had been foreshadowed on the last occasion. It contains two grounds. However, Mr Zipser withdrew reliance upon the second ground, which alleged a failure by the Tribunal to follow procedures under s.424A of the Migration Act.
I also note that no contention is made that jurisdictional error is revealed in the reasoning process of the Tribunal to which I have referred above.
One ground is still relied upon by Mr Zipser:
The applicant lost the opportunity of attending a hearing before the Refugee Review Tribunal as a result of the wrongful conduct of his migration agent. The facts supporting this point are set out in the affidavit of the applicant dated 20 January 2006. In the circumstances, there was jurisdictional error, either as a result of a denial of procedural fairness or otherwise.
In the applicant’s affidavit, he acknowledges his signatures on various documents in his protection visa application and his review application to the Tribunal. Three paragraphs of the affidavit are relevant to the his contention that he missed an opportunity to appear before the Tribunal due to fault on the part of his agent:
10.At page 53 and 54 of the Court Book there is a letter from the Refugee Review Tribunal to me dated 24 January 2001. I have been told that the documents in the Court Book indicate that a copy of the letter was sent to me at [address], Ashfield, but that the letter was returned to the Tribunal undelivered. A few weeks after I arrived in Australia I moved from (that address) to an address in Campsie. I did not tell Mr Han [his agent] about my change of address for two reasons. First, he never asked me to tell him about a change of address. Second, he always contacted me on my mobile phone. Therefore he did not need to know if I had changed address.
11.At some time Mr Han phone me and we had a conversation to the following effect:
Han: there is a hearing for your matter in the Refugee Review Tribunal. However, you do not need to attend the hearing. You cannot win your case. Also, if you attend the hearing, you might be arrested by the Department.
Me: OK.
12.I now understand that if I wanted to obtain a protection visa I should have attended the hearing in the Refugee Review Tribunal. I did not attend the hearing for two reasons. First, Mt Han told me that I did not need to attend the hearing. Second, My Han told me that if I attended the hearing I might be arrested by the Department. For this reason, I feared attending the hearing. If Mr Han had told me that it was important to attend the hearing I would have attended.
In short, the applicant contends that he was given wrong advice not to attend the hearing, and that he now regrets having followed that advice.
However, in my opinion it is clear that those circumstances cannot provide jurisdictional error vitiating the Tribunal's decision to proceed under s.426A, at least in circumstances where no contention whatsoever is made that the Tribunal was on any notice that the applicant had received the advice alleged. Such has been held in two indistinguishable cases in the Federal Court (see Re B41 of 2003 [2004] FCA 30 at [26], and the extensive discussion of Jacobson J in SZEYH v Minister for Immigration [2006] FCA 93 at [30-31]).
I accept that in this case, as in those cases, the Tribunal was under obligations of procedural fairness, since the provisions of s.422B did not apply. However, as recent Full Court decisions have emphasised, the requirements on the Tribunal of inviting an applicant to a hearing under s.425, and the requirements of common law procedural fairness, are exhausted by the express empowerment of the Tribunal to proceed under s.426A(1) once its two pre‑conditions are satisfied. No contention has been made in the present case that those pre‑conditions were not satisfied (see Minister for Immigration v SZFHC [2006] FCAFC 73 at [33-39], citing previous Full Court authority VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407. See also SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 at [17], similarly citing VNAA).
In my opinion, the present ground is clearly unsupportable on current authorities, including the Full Court authorities which I have cited above.
Moreover, counsel for the applicant did not present to me any argument in support of the ground. He did not give a glimmer of an argument to show why any of the above cases was wrongly decided. His written submission, which was served on the respondents at the commencement of today’s hearing and handed up in Court, said only:
14. The applicant says:
a) Where a migration agent misleads an applicant or breaches their duty to the applicant and as a consequence the applicant is deprived of an opportunity of attending a hearing before the Tribunal, the Tribunal’s decision is unfair from the perspective of the applicant, even though there has not been procedural unfairness by the Tribunal. In the circumstances, there can be jurisdictional error.
b) However, there are decisions of at least single judges of the Federal Court (which are binding on the Federal Magistrates Court) holding that there is no jurisdictional error in these circumstances: (citing Re B41, and SZEYH).
15. Accordingly, the applicant acknowledges that he is bound to lose on this point in the Federal Magistrates Court.
I think that he takes the correct view of the law, and I dismiss the application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 31 August 2006
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