SZHMP v Minister for Immigration

[2006] FMCA 951

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHMP v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 951

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend Tribunal hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 426A, 474

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346
Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SZDJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 214
SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78
SZEGX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 166

Applicant: SZHMP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3201 of 2005

Judgment of: Scarlett FM

Hearing date: 22 June 2006

Date of Last Submission: 22 June 2006

Delivered at: Sydney

Delivered on: 22 June 2006

REPRESENTATION

The Applicant: Appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The title of the First Respondent is changed to Minister for Immigration & Multicultural & Indigenous Affairs.

2. The application is dismissed.

3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,200.00 and I will allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3201 of 2005

SZHMP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.  The decision was handed down on

   
   

   6^th October 2005.  The applicant is a citizen of the People's Republic of China who arrived in Australia on 25^th December 2004. 

   
   

   On 8^th February 2005 he applied for a protection (class XA) visa which was refused by a delegate on 2^nd May.  The applicant sought a review by the Refugee Review Tribunal.  On 6^th June 2005 the applicant lodged an application for review with the Refugee Review Tribunal.  At the same time he submitted a document headed Reasons for Review in which he set out his criticisms of the delegate's decision. 

   
   

   The applicant gave his residential address in a suburb of Sydney as his address for the receipt of correspondence.  The Tribunal wrote to the applicant on 16^th August 2005 inviting him to attend a hearing on Monday, 12^th September.  The applicant did not reply to the letter. 

   
   

   The applicant did not attend the hearing on 12^th September. 

   
   

   The Tribunal made its decision on 15^th September without taking any further action to enable the applicant to appear before it. 

   
   

   The Tribunal's findings and reasons are set out on pages 74 to 76 of the Court Book.

2. The Tribunal took into account the applicant's typewritten reasons for review which the Tribunal considered the applicant was relying upon and had given to the Tribunal for the purposes of the review (see Court Book page 73).  The Tribunal described the applicant's claims as "untested and incomplete" and concluded:

   As the applicant's claims are untested and he has also not provided the information referred to above, I do not accept that the applicant faces persecution for reasons of his religion or any other Convention based reason should he return to the People's Republic of China now or in the foreseeable future.

3. The Tribunal was not satisfied on the evidence that the applicant had a well-founded fear of persecution within the meaning of the Convention and affirmed the delegate's decision not to grant a protection visa. 

   
   

   The applicant has sought judicial review of that decision in this Court.  He filed an application on 2^nd November 2005 and an amended application on 10^th March 2006.  He filed an additional copy of the same amended application on 14^th March 2006. In that application the applicant seeks an order that the respondents show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Migration Act. The applicant sets out three grounds:

   (1) RRT officer failed to give me enough time to respond to its hearing invitation.  RRT issued an invitation to me dated August 16^th 2005 and the hearing date was arranged on 12^th September 2005.  It was less than a month and when I received the letter, which about 10 days later, I had to look for someone to read and explain to me.  I need to seek advice to guide my action.  For a person like me, having no money and with limited English capability, I wasn't able to answer that invitation within the period.

   (2) The Tribunal failed to bring to my attention a critical factor upon which the decision was likely to run so that I might have a chance to deal with it.  In Tribunal's decision letter, the officer listed some facts I had provided to him about my background. 

   
   

   He held questions to some of them but not all.  He wanted answers for those questions but he failed to put them in writing and gave me an opportunity to reply.

4. That should be "and give me an opportunity to reply" I think:

   (3) RRT officer didn't give my application enough weight, although I have provided lots of information.  The Tribunal officer must have brought an impartial mind to the consideration of my claims.  As I stated above, the RRT officer didn't assess all of my statements provided to him as he had listed in his decision letter but picked up those on which he wanted to rely on for his decision-making.  Something which was not clear to him and he failed to give me the opportunity to deal with, given that the decision was made subjectively and on a bias basis.

5. The applicant attended Court on the hearing of this application and told the Court that he had received the letter but had no-one to ask to translate it.  He did not understand the letter he said because he does not speak English.  Because it was a private letter, he did not show it to other people.  All of his friends except one speak Chinese and do not speak English.  He said that his migration agent was not in Australia at the time and it was not until his migration agent returned that he was able to have the letter translated.  By that stage he said it was too late because the hearing had already taken place.  Neither he nor the migration agent contacted the Tribunal to explain the problem and he said that his migration agent did not advise that.  It was pointed out in submissions, and correctly, by Ms Gray for the respondent Minister that no name or address of any migration agent appeared on the application for review to the Tribunal.

6. Turning to the three grounds set out in the applicant's application, it is clear that the first ground complains of an insufficient time to understand and respond to the invitation letter sent under s.425 of the Migration Act. The applicant said that his English skills and lack of finance made this difficult and he did not have anyone to translate the letter for him. The letter inviting the applicant to the hearing was dated 16^th August 2006 and was sent by registered post to the applicant's nominated mailing address. I am satisfied that the invitation to the hearing complied with ss.425(1) and s.425A of the Act and reg 4.35D of the regulations. The applicant was deemed to have received the letter inviting him to the hearing seven working days after the date of the letter, namely, 25^th August 2005. I refer to s.441C(4)(a) of the Migration Act. The applicant was invited to respond to the hearing invitation by 1^st September but, as he told the Court, he did not.  He did not attend the Tribunal hearing on 12^th September and the Tribunal was therefore entitled to proceed to make a decision on the review without taking any further action to enable the applicant to appear before it under sub-s.426A(1) of the Migration Act. I note that in SZEGX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 166, an appeal from the Federal Magistrates Court, a decision to which I am referred by the solicitor for the first respondent, there is a very helpful description in paragraph 9 of the operation of s.426A:

   Section 426A confers a discretionary power to proceed to decide the matter without further engagement with the applicant. 

   
   

   The power is enlivened when the applicant is invited to appear but does not.  That power was exercised in the present case.  Neither s.430 nor the common law requires the Tribunal to explain in writing why the power has been exercised.

7. In my view, the unexplained absence of the applicant from the hearing was sufficient to entitle the Tribunal to exercise its power under s.426A. It is put to me by the solicitor for the first respondent that whilst there are no operative time limits in the Act for an applicant to respond to an invitation to hearing, the Tribunal is required to provide a prescribed period of 14 days between the date that the notification of the hearing date is deemed to have been received by the applicant and the date of the scheduled hearing, and I refer to reg 4.35D of the Migration Regulations. The applicant in this case was given 17 days' note and in my view there is no jurisdictional error.

8. Ground 2 states the Tribunal did not write to the applicant and give him an opportunity to comment on a critical factor upon which the decision was likely to run, presumably likely to turn so the applicant might have a chance to deal with it. I am referred to the provisions of s.422B which says that the matters contained in this part are an exhaustive statement of the natural justice hearing rule, so I am taking this ground as an allegation of the breach of s.424A(1) of the Migration Act.

   
   

   There are no pieces of information upon which the Tribunal relied as a reason or part of the reason for affirming the delegate's decision that are not covered by the provisions of s.424A. It is quite clear from the decision of the Tribunal that because the applicant did not attend the Tribunal hearing, there was insufficient information for the Tribunal to be affirmatively satisfied of the facts which would lead the Tribunal to conclude that he had an entitlement to a visa. Unless the Tribunal is satisfied that the applicant meets the criterion in sub-s.36(2) the Tribunal cannot make a decision granting a visa. The Tribunal's conclusions as to the paucity of the evidence before it are thought processes and do not come within the purview of s.424A(1)(a).

   
   

   I refer to the decision of SZEFM v Minister for Immigration & Multicultural Affairs [2006] FCA 78 at 23 and to the decision of SZEGX v Minister to which I have previously referred.

9. The third ground pleads that the “Tribunal officer” did not give the applicant's application enough weight even though he provided a lot of information.  It is a matter for the Tribunal to assess the weight to be attributed to the evidence.  The third ground in effect is an attempt at merits review, which is impermissible.  The third ground also makes an allegation of bias on the part of the decision-maker.  It is well established that an allegation of bias is a serious allegation which reflects on the decision-maker.  It must be strictly alleged and strictly proved.  It is almost impossible for bias or bad faith to be made out based on a reference only to the reasons for decision themselves. 

   
   

   I refer to SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at 16 and also SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at 38. There is no evidence of bias. On reading through the decision thoroughly, it is quite clear that the Tribunal approached the matter in an impartial way and was not satisfied because there was insufficient information to enable the Tribunal to be satisfied. Bias does not come into it.

10. The applicant was given an opportunity to attend a hearing and put his case. He had been placed on notice by the s.425 letter sent by the Tribunal that the Tribunal had considered the material before it and was unable to make a decision in favour of the applicant on the basis of that material. It is well established in such circumstances that an applicant who has been informed of that situation but does not take the opportunity to give evidence or provide further evidence, especially by attending a hearing, cannot be heard to complain if the decision is adverse. I refer to S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at 26, also NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346 at 10 to 12, and SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811, also SZDJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 214. The applicant did not attend the hearing and the Tribunal did not have enough information to satisfy it that the applicant met the criteria for a visa. The inevitable result was that the delegate's decision not to grant a protection visa was affirmed by the Tribunal. There is no jurisdictional error. It is clear that the Tribunal member considered the obligations particularly under s.424A as witnessed in the paragraph to which I have previously quoted that appears on page 73 of the Court Book and the Tribunal observed those provisions.

11. I am not able, mindful of the fact that the applicant is unrepresented, to discern any other jurisdictional error to which the applicant has not referred the Court.  As there is no reviewable error, the application must be dismissed.

12. There is an application for costs on behalf of the first respondent Minister.  The amount sought is $3,200.00.  In my view this is an appropriate matter where costs should follow the event as the applicant has been wholly unsuccessful in his claim.  The applicant has queried the sum of $3,200.00 which is sought but that has been explained satisfactorily in my view by the fact that there were three directions hearings together with one final hearing.  Normally there would be fewer than three directions hearings but this was one of a number of matters that was not able to be allocated to a Federal Magistrate’s docket immediately.  In my view the sum of $3,200.00 reflects that.  The applicant indicates that he is in poor financial circumstances and cannot meet that amount.  That is not a reason for not making a costs order but it is a matter to be taken into account in allowing time to pay.  I propose to allow six months to pay.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  30 June 2006