SZHMW v Minister for Immigration - [2006] FMCA 321

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHMW v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 321

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of People’s Republic of China – where applicant did not attend the RRT hearing.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208,
Minister for Immigration and Multicultural and Indigenous Affairs v VASF of 2003 [2005] FCAFC 73
Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 481
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 668
Applicant M257 of 2003 v Minister for Immigration and Anor [2006] FMCA 131

Applicant:

SZHMW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 3217 of 2005

Delivered on:

28 February 2006

Delivered at:

Sydney

Hearing date:

28 February 2006

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Ms Mason

Solicitors for the Respondent:

Phillips Fox

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3217 of 2005

SZHMW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on the 15^th September 2005. It was handed down on 13^th October 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection Visa.
The Applicant has sought a review of that decision in this Court. He has provided three grounds. First; he claims there is jurisdictional error because the Refugee Review Tribunal breached the rules of procedural fairness by not inviting him to give oral evidence and present arguments at a hearing. Second; he alleged that the decision of the Tribunal contains bias and that there are obligations on the Tribunal to refer to resources about China and its democratic system. He commented that he had requested to join the Legal Advice Scheme but had not received a letter regarding his legal advice.
In short; he submits that jurisdictional error has been established for denial of procedural fairness and natural justice which should entitle him to relief.
The Applicant is a citizen of China. He arrived in Australia on 27^th March 2005 and applied for a Protection (Class XA) visa on 8^th April 2005. A delegate of the Minister refused his application on the 5^th May so the Applicant applied to the Refugee Review Tribunal for review of that decision on 22^nd June 2005.
The Court Book shows that the Tribunal wrote to the Applicant on 8^th August 2005 inviting him to attend a hearing on the 2^nd September. The Applicant did not attend the hearing. The Tribunal exercised its power under s.426A of the Migration Act to make a decision without taking further action to enable the Applicant to appear before it. It is not surprising that the application for review was unsuccessful.
The Applicant had claimed to fear persecution from the authorities in China because of his involvement in an activist group following government land seizures. He said that he had been threatened and imprisoned. The Tribunal referred to Independent Country Information and accepted that there were demonstrations in China concerning social and economic issues, particularly land disputes and anti-government protests.
The Tribunal accepted that corruption was a widespread problem and farmers who protested against seizures of land by the government were often beaten.
The Tribunal did not accept the Applicant's claims. The Tribunal accepted independent evidence concerning demonstrations and compulsory land acquisition. The Tribunal quoted from that independent evidence at some length on pages 63 through to 67 of the Court Book.
The Tribunal found at page 67 of the Court Book that the Applicant's claims were lacking in detail and that without further information from the Applicant the Tribunal was not satisfied that the Applicant was a farmer, that he was a member of a group of activists, that his land was seized by the government or that he was detained by the police.
The Tribunal said that the Applicant had not provided insufficient information for the Tribunal to be satisfied that he was not a businessman travelling to Australia in order to conduct business as he had in fact arrived in Australia on a business visa.
The Tribunal was not satisfied that the Applicant fled China fearing harm from the authorities or that he was politically active before he left China. The Tribunal formed the view that the chance the Applicant would become politically active if he returned to China was remote and was not satisfied that the Applicant had a well-founded fear of persecution for reasons of his political opinion. The Applicant had not claimed fear of persecution for any other reason.
The Applicant told the Court that he did not attend the Tribunal hearing because he had not received the letter inviting him. The Court Book shows that the Tribunal did in fact write to him on the 8^th August by registered post at a post office box number, being the address provided to the Tribunal by the Applicant on his application for review. There is no evidence to show that the registered letter from the Tribunal did not arrive at the Applicant's post office box in the ordinary course of mail delivery.
The Tribunal's records, at page 69 of the Court Book, show that an officer of the Tribunal telephoned the Applicant's mobile telephone number on the 25^th August and the 1^st September attempting to contact the Applicant about the hearing. In each case the call was diverted to a message service. The Tribunal officer left an office telephone number for the Applicant to ring. When asked about the telephone messages the Applicant said that he had changed his mobile telephone number because he had lost his mobile telephone.
The simple fact is that the Applicant did not attend the Tribunal hearing and the Tribunal was not able to be satisfied, on the evidence available to it, that he met the criterion set out in sub-s.36(2) of the Migration Act for a Protection Visa. The Applicant, in an oral submission, criticised the Tribunal for not being able to be certain about things but the answer to that is that if the Tribunal is not certain it cannot be satisfied. If it cannot be satisfied it cannot grant a visa. I am referred to the decision of SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 where the Full Court at paras.15 and 16 referred to a legislative regime which required a positive state of satisfaction as to whether protection obligations are owed meant that a decision to refuse the visa must be made if that state of satisfaction was not reached. That decision is supported by the decision of the Full Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208, para 4 and 5. In Minister for Immigration and Multicultural and Indigenous Affairs v VASF of 2003 [2005] FCAFC 73, the Full Court stated that at s.65 of the Migration Act in Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 481 made clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction.
The Applicant who does not attend a hearing of the Refugee Review Tribunal must accept the fact that the likelihood that his or her application will be rejected is very high. The Applicant claims a breach of s.425 of the Act but in my view the letter of the 8^th August 2005 complies with s.425 and makes it clear to the Applicant that the Tribunal 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.
There is an allegation of bias made by the Applicant. It is a serious allegation that should not be made lightly and I refer to SCAA v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 668 at [37] and there are a number of decisions of the Full Court that have affirmed the proposition that an allegation of bias should not be made lightly and must be strictly alleged and strictly proved. There is just no evidence of bias.
Counsel for the Respondent, Ms Mason, drew the Court's attention to a curious passage which appears at page 60 of the Court Book in the claims and evidence section of the Tribunal decision. That includes a reference to a Departmental file with a rejection of the Applicant's claim that he would face harm and mistreatment of a serious nature if he were to travel to Latvia because of his Russian ethnicity. I am of the view that this rather curious statement is purely a computer error. It appears that a portion of another decision was perhaps not deleted from the computer file or the template upon which the Tribunal Member prepares decisions. I have read through the decision myself. There is no other reference to Latvia or Russian ethnicity. It is well established that the Applicant is not of Russian ethnicity, he is a citizen of the People's Republic of China and he has no connection to Latvia at all. There is nothing in the decision that showed that the Tribunal relied on this erroneous information. It is a typing error or a computer error and whilst it is regrettable, it is quite clearly irrelevant.
I am referred to a decision of Riethmuller FM made on the

13^th February 2006, in a matter called Applicant M257 of 2003 v Minister for Immigration and Anor [2006] FMCA 131 where his Honour considered an inclusion of an inappropriate word in a decision heading and considered an explanation by the Tribunal Member that she was having difficulty with her spell check program and it was suggested that she type a nonsense word into the decision to see if the spell checker would find it. The Tribunal Member said that she overlooked the word when proofing the decision. I refer to paragraph 34 of his Honour's decision.
I note that his Honour undertook some lengthy research and refers to a variety of publications, many of which refer to a recent film called King Kong. I am not necessarily convinced that this depth of research was necessary in dealing with a typographical error but that is a matter for his Honour.
In the case in front of me it is clearly a typographical error or a computer error. The offending passage should not have been left in and there is a need for decisions to be proof read. I propose to recommend to the Principal Member that Tribunal Members should be encouraged to engage in further proof reading and I believe I made a similar recommendation in a case that came before me at the end of January which also contained a paragraph that clearly should have been deleted.
The Applicant was unsuccessful because the Tribunal was not satisfied, on the evidence provided, that he met the criteria for a Protection visa. The Tribunal was not satisfied because the Applicant did not attend the hearing. The Applicant says that he did not receive the letter inviting him to the hearing but there was no reason given as to why a letter sent to the post office box that he nominated should not have been delivered in time. The fact that the Applicant changed his mobile telephone number, having lost his mobile telephone, meant that the Tribunal could not contact him by telephone even though the evidence indicates that the Tribunal made two attempts to do so before the hearing. The Applicant did not provide any evidence that he had notified the Tribunal of any change of telephone number.
I am satisfied that the Tribunal did comply with its obligations under s.425 of the Migration Act. I am satisfied that there is no bias, no denial of natural justice and no denial of procedural fairness. I am satisfied that no jurisdictional error has been shown. I have read the decision myself thoroughly, noting that the Applicant has been unrepresented and I have been unable to discern any jurisdictional error.
I note the Applicant complains in his application that he indicated that he wished to take part in the pilot scheme to provide legal advice but did not receive any letter. He has provided no evidence of that. In any event, the inability to obtain legal advice is not a ground for review. It is not a privilege not to have legal advice, it is a misfortune. There is no right to be legally represented.
There is no jurisdictional error. The decision is a privative clause as defined by sub-s.474(2) of the Migration Act and it attracts the protection of sub-s.474(1). The application is dismissed.
The Respondent Minister applies for an order for costs in the sum of $3,300.00. There is nothing in the circumstances of this case that would take the matter away from the principle that costs follow the event. It is a matter where the successful party should be entitled to a costs order. The amount of $3,300.00 inclusive of counsel's fees is a very modest figure in the circumstances and well within the scale prescribed by the Federal Magistrates Court Rules. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,300.00.

I certify that the preceding twenty -five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 7 March 2006