SZHMK v Minister for Immigration
[2006] FMCA 1370
•14 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHMK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1370 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant informed RRT that he did not have an agent or authorised recipient – applicant now asserting that he did have an agent who received correspondence and failed to pass it on – applicant failing to respond to hearing invitation or to attend a hearing – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.420, 424A, 425, 425A, 426, 426A, 441A, 441C |
| A97 v Minister for Immigration & Ors [2004] FMCA 178 B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 M172 v Minister for Immigration [2004] FMCA 23 NADK of 2002 v Minister for Immigration [2002] FCAFC 184 NAVX v Minister for Immigration [2004] FCAFC 287 NBAJ v Minister for Immigration [2005] FMCA 1668 Re B41 of 2003 v Refugee Review Tribunal [2004] FCA 30 SZBBL v Minister for Immigration [2004] FCA 834 SZBZG v Minister for Immigration [2006] SZEFM v Minister for Immigration [2006] FCA 78FMCA 62 SZEGX v Minister for Immigration [2006] FCA 166 |
| Applicant: | SZHMK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3184 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 14 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2006 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondents: | Mr A Carter Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $3,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3184 of 2005
| SZHMK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refuge Review Tribunal (“the RRT”) The decision was handed down on 29 September 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon his practice of Falun Gong. I adopt as background for the purposes of this judgment paragraphs 2, 3and 4 of the Minister's outline of written submissions filed on 16 August 2006:
The applicant, a citizen of the People’s Republic of China (“PRC”). The applicant was detained and tortured by PRC authorities because he was a Falun Gong practitioner. Accordingly, his friends in government offices helped him get a passport and applied for a visa for him to escape the PRC.
On 26 July 2005, the RRT wrote to the applicant inviting him to attend an oral hearing.[1] This correspondence complied with ss.425A and 441A(4) of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant did not respond to the hearing invitation, failed to attend the scheduled hearing and did not provide an explanation for his absence. Accordingly, the RRT proceeded to determine the matter without taking any further steps to enable the applicant to appear before it, as it was entitled to do: s.426A(1) of the Act.
The RRT found that there was insufficient detail and evidence before it to accept the applicant’s claims.[2] On this basis the RRT was not satisfied that the applicant had a well-founded fear of persecution or that he was owed protection obligations by Australia.[3]
[1] court book, pages 49-50
[2] court book, pages 59.9-60.2
[3] court book, page 60.3
These proceedings began with an application for judicial review filed on 1 November 2005. Lloyd-Jones FM gave directions in relation to that application on 6 December 2005. Among other things, Lloyd‑Jones FM called for the filing of additional material, including a court book, by the Minister. He directed that, apart from that court book, all evidence should be presented by way of affidavit. A court book was filed on 9 December 2005. No affidavit evidence has been filed. The only evidence I had before me is the court book.
The applicant has, however, told me a great deal from the bar table.
I told him that I would consider what he told me.
The applicant relies upon an amended application filed on 30 March 2006. In that application the applicant asserts two grounds of review. The first is an asserted breach of s.424A of the Migration Act.
The applicant asserts that the RRT decision was based on its findings on the information or lack of information contained in his protection visa application. He asserts that he should have been given particulars of that information and was not. Secondly, the amended application asserts that the applicant was not invited to a hearing by the RRT.
The application asserts that the applicant appointed a migration agent to look after his application and that the applicant was told that the agent was his authorised recipient. The agent received all correspondence on the applicant's behalf. The applicant asserts that he did not know that the agent failed to disclose his role in the review application. He states that the agent put his own address on the review application as the address for receipt of correspondence. The applicant asserts that the agent failed to inform him of a hearing invitation.
The applicant asserts that he was cheated by his agent. He seeks the opportunity to have his protection visa claims considered properly.
The first ground of review can be dealt with shortly. The RRT decision was not based upon any particular information but upon a lack of information. There is no obligation on the RRT to disclose, pursuant to s.424A, an insufficiency of information. I agree with and adopt for the purposes of this judgment, paragraph 6 of the Minister's written submissions:
The applicant alleges that the RRT failed to give particulars of the information that it relied upon as the reason or part of the reason for its decision or explain why that information was relevant pursuant to s.424A of the Act. In this matter, the reason for the RRT’s decision was simply the lack of detail in the applicant’s claims and his failure to attend the RRT hearing. These matters are thought processes that do not fall within s.424A(1)(a) of the Act.[4] Moreover, in cases such as the present where an applicant does not appear at the RRT hearing and does not submit any new claims to the RRT he must be taken as relying on his protection visa claims before the RRT, which brings them within s.424A(3)(b).[5] Accordingly, there is no breach of s.424A(1).
[4] SZEFM v Minister for Immigration [2006] FCA 78 (Bennett J) at [23] and the cases there cited. SZEGX v Minister for Immigration [2006] FCA 166 (2 March 2006) per Moore J. SZFCC v Minister for Immigration [2006] FCA 312 (28 March 2006) per Stone J
[5] SZEFM at [19]; SZEGX
The second ground of review requires some consideration. The court book discloses (pages 42 to 46) that the applicant lodged, or had lodged for him, a review application to the RRT. He disclosed a residential address in Campsie but answered “no” to the question whether he had an advisor acting for him in relation to the application (court book, page 43). Page 44 of the court book discloses that the applicant nominated a mailing address of 6/460 Pitt Street, Sydney, New South Wales, 2000. The applicant told me from the bar table that he does not know that address and that it might be the address of the migration agent. The applicant signed the review application form (court book, page 45). The applicant today acknowledged that signature. He told me that the review form was blank when he signed it and that the agent filled in the details later. He also told me that he instructed the agent to lodge the review application on his behalf. I asked who the agent was. The applicant told me that the agent’s name was Mr Songtao Lu and that he was engaged on our about 8 April 2005. The applicant told me that he paid Mr Lu $700. The applicant also told me that his instructions to Mr Lu were for him to make and deal with the review application and to also obtain for him a tax file number and a Medicare card. The applicant apparently got the tax file number but did not get the Medicare card. The applicant asserts that Mr Lu failed to disclose any correspondence from the RRT to him, other than the letter dated 29 September 2005 (court book, page 54), which enclosed a copy of the RRT decision. The applicant says that Mr Lu told him about that letter by telephone. At that point the applicant apparently terminated his instructions to Mr Lu as he no longer trusted him.
The applicant also told me that someone else was helping him with his application in this Court but that he was not paying this person any money. The applicant disclosed that the address for service shown on his amended application is the address of a friend who is dealing with correspondence on his behalf.
The court book discloses that the applicant was invited to a hearing before the RRT by letter dated 26 July 2005 (court book, pages 49 and 50). That letter was sent by registered post and there is no evidence that it was not dispatched.
The presiding member dealt with the circumstances in the RRT decision at page 58 of the court book. Relevantly the presiding member said:
On 26 July 2005 the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to its application but was unable to make a favourable decision on that information alone.
The Tribunal invited him to give oral evidence and present arguments at a hearing on 7 September 2005. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. The Tribunal’s letter was not returned unclaimed. Departmental records do not show that the applicant has left the country and the Tribunal checked that its letter was sent to the most recent address provided by the applicant. As he has no migration agent or authorised recipient, the Tribunal was unable to use any further means to contact him.
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 s.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 applicant concedes that the RRT was not at fault in the manner in which it proceeded. He asserts that he was cheated by Mr Lu. If what he says is true, the RRT was also actively misled by Mr Lu, who failed to disclose his involvement. That is a serious matter which probably warrants investigation by the Minister's Department or the Migration Agents Registration Authority. A computer check conducted by my Deputy Associate during the course of today's hearing disclosed that Mr Lu is a registered migration agent.
In my view, the RRT met its obligations to invite the applicant to a hearing. At a practical level, there was nothing further the RRT could have done. The RRT was entitled, pursuant to s.426A of the Migration Act, to proceed in the absence of the applicant. I agree with and adopt for the purposes of this judgment, paragraphs 7 through to 12 of the Minister's written submissions:
The applicant alleges that he was not invited to the RRT hearing, that his migration agent received all correspondence on his behalf and did not inform him of the RRT hearing.
On 26 July 2005, the RRT wrote to the applicant pursuant to s.425 of the Act advising that him that it was unable to make a favourable decision on the information before it and inviting him to give oral evidence and present arguments at a hearing: court book, pages 49-50. That letter was validly given and complied with ss.425A, 426(1) and 441A(4) of the Act. Accordingly, no jurisdictional error is established in this regard.
Further, there is no evidence filed in support of the applicant’s allegations that he had appointed a migration agent to act on his behalf [who] failed to inform him of his hearing before the RRT. In any event, the law on this issue is settled. It is an established principle that there is no jurisdictional error by reason of a migration agent failing to tell an applicant about the hearing.[6] A tribunal cannot be said to have erred in its exercise of jurisdiction because of something a third party did or did not do, about which the RRT knew nothing and never had notice. [7]
Both the Federal Magistrates Court and the Federal Court have held that the position set out by the former Chief Federal Magistrate in M172, is correct law.[8] In M172, the CFM found that there was no jurisdictional error by reason of a migration agent failing to tell an applicant about the hearing and responding to the RRT that the applicant would not attend the hearing. The respondent submits that such a scenario is more extreme than the factual circumstances which presently confront the Court.
The Full Federal Court described the rejection of the applicant’s case as "an inevitable consequence" of non-attendance.[9] This is the case whether or not an applicant attends by reason of an election on their part[10] or by no fault of their own. In VNAA v Minister for Immigration [2004] FCAFC 134 at [16] Sundberg & Hely JJ held:
Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence.
Similarly, Raphael FM held that irrespective of whether the applicant had not been told or the agent had acted without authority, there was no jurisdictional error.[11] In another matter, the Full Federal Court was willing to accept that the applicant was not told about the RRT hearing but nevertheless found that the matter was of no legal relevance and did not constitute jurisdictional error.[12]
[6] M172 v Minister for Immigration [2004] FMCA 23; NBAJ v Minister for Immigration [2005] FMCA 1668 per Barnes FM; Re B41 of 2003 v Refugee Review Tribunal[2004] FCA 30 at [23] – [25] per Dowsett J; SZBZG v Minister for Immigration [2006] FMCA 62 per Driver FM;
[7] SZBZG v Minister for Immigration [2006] FMCA 62 at [33]
[8] see for example SZBSZ v Minister for Immigration[2004] FCA 779 per Bennett J at [13] to [15] and SZBBL v Minister for Immigration [2004] FCA 834 per Tamberlin J at [8] to [10].
[9] NAVX v Minister for Immigration [2004] FCAFC 287 at [5]
[10] see B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 per Dowsett J at [23]
[11] A97 v Minister for Immigration & Ors [2004] FMCA 178 per Raphael FM at [11]
[12] NADK of 2002 v Minister for Immigration [2002] FCAFC 184 per Tamberlin, Sackville & Hely JJ at [9], [14] and [16]
I find that the decision of the RRT was free from any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will direct that the name of the first respondent be amended by deleting the words "and Indigenous".
Costs should follow the event in this case. The Minister seeks a costs order fixed in the sum of $3,750 on a party and party basis.
I understand that the Minister's solicitor and own client costs are of the order of $4,700. The Minister's actual costs are higher, $4700.
The applicant did not wish to be heard on costs. I accept that not less than $3,750 has been properly and reasonably incurred on behalf of the Minister in this matter when assessed on a party and party basis.
I order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $3,750.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 September 2006
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