SZHOP v Minister for Immigration

Case •

[2006] FMCA 1191

•

27 July 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHOP v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1191
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 – allegation of bias – no evidence of bias – no obligation imposed on Tribunal to make its own inquiries – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 426A, 474
Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811
SZCGM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78
SZEGX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 166
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
SZFJS v Minister for Immigration & Multicultural & Anor [2005] FMCA 1968
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
Applicant: SZHOP
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG3303 of 2005
Judgment of: Scarlett FM
Hearing date: 27 July 2006
Date of Last Submission: 27 July 2006
Delivered at: Sydney
Delivered on: 27 July 2006

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondents: Mr Reilly
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

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

  2. The application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3303 of 2005

SZHOP

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.  The decision was signed on 29th September and handed down on 20th October 2005.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.

  2. The applicant is a citizen of the People's Republic of China who arrived in Australia on 16th January 2005.  He applied for a protection (class XA) visa on 24th February 2005 but a delegate of the Minister refused that application on 31st March 2005.

  3. The applicant then sought a review of that decision from the Refugee Review Tribunal.  He lodged an application for review on


    5th May 2005.  The applicant did not lodge any other documents with that application.  The applicant gave a mailing address in Pitt Street Sydney as his address for service.  That is not his residential address which is in a suburb of Sydney.  The Tribunal wrote to the applicant on 5th May, the day he lodged his application, advising him that after looking at the information in his application the Tribunal member may either make a decision in his favour or invite him to attend a hearing of the Tribunal.  The letter went on to tell the applicant that a hearing was his opportunity to give the Tribunal evidence to support his application.

  4. The Tribunal wrote to the applicant again on 13th July 2005.  The Tribunal informed the applicant 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.  Accordingly, the Tribunal invited the applicant to attend a hearing scheduled for Monday, 5th September 2005.  The applicant replied to that invitation indicating that he did wish to attend the hearing and that he would require an interpreter in the Cantonese language.  Unfortunately, the Tribunal was unable to hold a hearing on the date scheduled due to the unavailability of a Tribunal member.

  5. The Tribunal wrote to the applicant again on 25th August 2005.  The Tribunal informed the applicant that the hearing could not take place on 5th September.  On 5th September the Tribunal wrote to the applicant inviting him to attend a hearing to take place on Tuesday,


    27th September.  The applicant did not reply to that letter and did not attend the hearing.  The applicant conceded in Court that he had not attended on the advice of friends.  The Tribunal considered the applicant's claim and noted that the applicant had not attended and that no response had been received.

  6. The Tribunal decided to exercise its power under s.426A of the Migration Act to make its decision on the review without taking any further action to enable the applicant to appear before the Tribunal. The Tribunal noted the applicant had claimed refugee status but referred to it as "vague and incomplete". The Tribunal noted three factors that appeared to form the basis for the applicant's claim of a well-founded fear of persecution. The Tribunal went on to say, however:

    The Tribunal has not had the opportunity through a hearing or otherwise to obtain further information to determine the veracity of the applicant's claims and whether they establish persecution within the meaning of the Convention and the Act such that the Tribunal can be satisfied that he meets the criteria for recognition as a refugee.

  7. The Tribunal then went on to set out details of the matters upon which the Tribunal would have wished to obtain further evidence from the applicant.  The Tribunal went on to find that on the limited evidence before it, it was not satisfied with respect to the applicant's claimed family circumstances and his claim to political profile.  It was not satisfied that he had been subject to adverse attention for those or for any other reasons in the past or that the alleged past events or any other factors gave rise to a well-founded fear of persecution within the meaning of the convention in the reasonably foreseeable future.

  8. The Tribunal was not satisfied that the applicant was a refugee.  Accordingly, the Tribunal affirmed the decision of the delegate not to grant a protection visa.  The applicant has sought judicial review of that decision in this Court.  On 21st March 2006 he filed an amended application seeking constitutional writs of prohibition and certiorari and mandamus.  He sets out three grounds.  First, failure to carry out the Tribunal's statutory duty.  Second, a claim that the Tribunal had bias against him because of his absence from the hearing and third, a failure by the Tribunal to refer to any independent information, the consideration of his application because of the Tribunal's bias against the applicant.

  9. The applicant did not file any written submissions but attended Court on the hearing of the application and in oral submissions expressed the view that the Tribunal was biased against him because he did not attend the hearing.  He also took the view that it was incumbent upon the Tribunal to make inquiries in order to ascertain whether or not he was a refugee.  He told the Court that he had not attended the Tribunal hearing because he had been visited at his home by an officer from the Department of Immigration & Multicultural Affairs and his friends told him not to go to the Tribunal.

  10. Turning to the applicant's amended application, he alleges a breach of s.424A of the Migration Act claiming that the Tribunal was required to provide particulars of the information that was the reason or part of the reason, for affirming the delegate's decision. He refers to a decision of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, and he points out information in this sense extends to information given by the applicant to the Minister as part of his application for a protection visa referring to the Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27.

  11. The answer to that submission quite simply is that the reason for the Tribunal's decision to affirm the delegate's decision was not based on any information but based on the vague nature of the applicant's claims and the inability of the Tribunal to inquire about these claims with the applicant at a hearing. This is a thought process on the part of the Tribunal member and it is not information for the purpose of s.424A.


    I refer to SZEFM v Minister for Immigration & Multicultural Affairs [2006] FCA 78 23 and also SZEGX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 166 at [10].

  12. In SZEFM, Bennett J referred to the decisions of Healy J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs, Bennett J in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs and Alsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs. The Tribunal was identifying with deficiencies or inadequacies in the appellant's case. It was relying on information communicated to, or received by, the Tribunal in setting out its thought processes. There was no information that the Tribunal was obliged to give to the appellant in that case and the applicant in this case by reason of s.424A(1), see VAF v  Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24].

  13. In my view there is no breach of s.424A of the Migration Act. The applicant also claims in his amended application that the Tribunal was biased. Bias, as is well known, is a serious allegation and it must be strictly proved. It is a very rare case indeed where a Court would find bias where all that the applicant relies upon is the written reasons for the decision under review. I refer to SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [44]. The applicant says that the Tribunal was biased against him because he did not attend the hearing. There is no evidence of that. True it is that the applicant did not attend the hearing, but that does not establish the Tribunal was biased against him.

  14. The third ground is that the Tribunal failed to refer to any independent information because of the Tribunal's alleged bias.  There are two points to be made here.  First of all, there is no evidence of bias whatsoever.  Second, the applicant submitted to the Court that the Tribunal had an obligation to make its own independent inquiries in respect of the matters raised by the applicant.  This is not so.  It is well established that the Tribunal is under no obligation to make independent inquiries in support of an applicant's case.  It is up to the applicant to bring evidence to the Tribunal in order to allow the Tribunal to be satisfied that the applicant meets the criteria for the grant of a visa.

  15. It is noteworthy that the Tribunal in its letter under the provisions of s.425 of the Migration Act invited the applicant to attend the hearing, having informed the applicant that the information before the Tribunal was not sufficient to allow the Tribunal to be able to make a decision in his favour on that information alone. That is why the Tribunal invited the applicant to come to a hearing to give oral evidence and present arguments in support of his claims. That letter also invited the applicant to send any new documents or written arguments that he wanted the Tribunal to consider.

  16. The Tribunal had previously, when acknowledging the receipt of the applicant's application on 5th May, sent the applicant a letter setting out what a hearing was and why it was important.  The applicant chose not to attend the hearing.  He says that he did so because his friends told him not to attend.  The situation where applicants choose not to attend a hearing of a Tribunal is one which has been referred to in this Court and in the Federal Court on appeal from this Court in numerous cases.  In NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 the Full Court said at [5]:

    In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information.  Clearly enough the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China.  Having found that the outline was not sufficient, to satisfy it that the appellant had a


    well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate.  When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

  17. See also SZCGM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306, SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 and SZFJS v Minister for Immigration & Anor [2005] FMCA 1968. The applicant chose not to attend the Tribunal hearing. As a result the Tribunal had very little evidence upon which it could make a decision. Indeed, it had no more evidence than it had when it wrote to the applicant inviting him to attend the hearing.

  18. The Tribunal was not satisfied on the information before it that the fears that the applicant claimed were well-founded, and there is no error in the Tribunal taking such an approach in the circumstances and I refer to Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73. There was no breach of s.424A of the Migration Act. There was no breach of s.425. There is no jurisdictional error. I am mindful of the fact that the applicant was not legally represented at the hearing although he did have the benefit of legal advice from the Refugee Review Tribunal panel member to whom he had been referred.

  19. I have read through the decision thoroughly myself in order to satisfy myself that no other jurisdictional error may appear to which the applicant was not able to refer.  I am unable to discern any.  Accordingly, I am satisfied that the decision is a privative clause decision as defined by sub-s.474(2) and as such it attracts the protection of sub-s.474(1).  The application will be dismissed and I will hear submissions on costs.

  20. The applicant has been wholly unsuccessful in his claim.  I am not satisfied that there is any reason why I should not make an order that the first respondent should be entitled to an order for costs.  The amount sought, namely $4,400.00, includes counsel's fees and I consider that to be an appropriate figure.  I intend to make an order for costs in favour of the first respondent.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  10 August 2006

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0