SZHOS v Minister for Immigration
[2006] FMCA 1244
•27 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHOS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1244 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of People’s Republic of China claiming fear of persecution because of practice of Falun Gong – applicant did not attend Tribunal hearing – where applicant claims migration agent did not tell him about Tribunal hearing. |
| Migration Act 1958 (Cth), ss.420, 425, 425A, 441A |
| VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590 Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 396 SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 779 NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781 Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1249 SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 M172 v Minister for Immigration & Anor [2004] FMCA 23 SZBBL v Minister for Immigration [2004] FMCA 185 SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 SZGQL v Minister for Immigration & Ors [2006] FMCA 446 Al Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZHOS |
| First Respondent: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3309 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 May 2006 |
| Date of Last Submission: | 17 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mitchell |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms Mason |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,800.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3309 of 2005
| SZHOS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made on 10th December 2004 and handed down on 6th January 2005. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
Background
The Applicant is a citizen of the People’s Republic of China who arrived in Australia on 30th July 2004. He applied for a Protection (Class XA) visa on 7th September but a delegate of the Minister refused his application on 13th September 2004. The applicant sought a review of that decision by lodging an application with the Refugee Review Tribunal on 20th October 2004.
Application for review by Refugee Review Tribunal
In his application to the Tribunal, the Applicant provided a residential address, and three telephone numbers – landline, mobile and fax. He nominated a migration adviser to act for him. The telephone numbers given for her office were identical to those given in the space for the Applicant’s details. No statement or other information was provided with the application for review.
The Tribunal wrote to the Applicant at the address of his migration agent on 21st October 2004, acknowledging receipt of the application and advising the Applicant that he might be invited to attend a hearing.
The Tribunal wrote to the Applicant again on 9th November 2004, inviting him to attend a hearing on Thursday 9th December 2004. A copy of that letter appears at pages 48 and 49 of the Court Book. The letter bears a notation that it was sent by registered post to both the agent and the Applicant at his home address. No reply was received.
The Tribunal then carried out a check on both 3rd and 7th December 2004. In each case a “No reply to hearing invitation” checklist was completed. The letter sent to the Applicant on 9th November 2004 was returned unclaimed on 13th December 2004.
By that time, the Tribunal had already completed and signed the decision, which took place on 10th December. The Tribunal wrote to the Applicant’s adviser that same day, advising that the decision was to be handed down on 6th January 2005.
The Tribunal decision
The Tribunal noted that the Applicant had been invited to attend a hearing on 9th December 2004 and no reply was received to that invitation. The Applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear, so the Tribunal proceeded to exercise its power under s.426A of the Migration Act 1958 (Cth) and made a decision on the review without taking any further action to enable the Applicant to appear before it.
The Tribunal noted the Applicant’s claims as they were set out in the application for a protection visa that he was a man from Fujian in China who feared persecution in China because he was a Falun Gong practitioner.
The Tribunal’s findings and reasons are set out on pages 62 and 63 of the Court Book. The Tribunal was not satisfied on the evidence before it, such as there was, that the Applicant had a well-founded fear of persecution within the meaning of the Convention. The Tribunal stated:
The Tribunal has a number of issues upon which it requires a good deal more detailed evidence before it could be satisfied that the Applicant is in genuine fear of persecution and that there is a real chance that he will be persecuted. The Applicant claims to have practised Falun Gong and provides general information on the treatment of Falun Gong practitioners in China. However he makes no claim that he has experienced any harm at the hands of the Chinese or any claim as to future harm he fears on his return to China.
On the very limited, vague and highly generalised information put forward by the Applicant, the Tribunal cannot be satisfied about the Applicant’s claim that he is associated with Falun Gong or that he faces harm from the Chinese authorities because of this.[1]
[1] See at page 62 of the Court Book.
The Tribunal affirmed the delegate’s decision not to grant a protection visa.
Application to the Federal Magistrates Court
The Applicant commenced proceedings in this Court by filing an application on 14th November 2005. He filed an affidavit on
30th January 2006 and an amended application on 2nd February 2006. A further amended application, filed on 15th March 2006, was not relied upon at the hearing.
In his amended application, the Applicant seeks orders that his application for a protection visa be remitted to the Tribunal for determination according to law and an order that no action be taken to remove him from Australia whilst the decision is pending. The grounds of the amended application are:
i) The Refugee Review Tribunal erred in:
not inviting the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in relation to the decision under review; or
not according the Applicant procedural fairness
ii) The Refugee Review Tribunal erred in not considering a relevant consideration.
The Applicant’s affidavit said that the Applicant had consulted one Grace X. Chen, a migration agent in the Sydney suburb of Bankstown. He said that he paid her some money and she had prepared some documents for him. He deposed that the residential address given on his application for review was not an address at which he had ever lived. He also deposed that he was not told that there was a hearing of the Tribunal on 9th December 2004. If he had been told of the hearing, he would have attended and given evidence. Up until September or October 2005 he believed that his application was still being processed.
In cross-examination by counsel for the First Respondent, the Applicant conceded that he had relied on his agent to prepare his application for him. He told the court that he did not find out about the Tribunal decision until September or October 2005.
The applicant’s submissions
The Applicant’s counsel, in his written submission, referred the Court to the following sections of the Migration Act 1958 (Cth) and their effect:
a)The Refugee Review Tribunal must act in accordance with substantial justice and the merits of the case (s.420).
b)The Tribunal must invite an applicant to appear before it to give evidence and present arguments (s.425).
c)Notice of an invitation must be given by a method prescribed in s.441A (s.425A).
d)Part 7 Division 4 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals (s.422B).
e)A notice of invitation sent in accordance with s.441A (4) is taken to have been received by an applicant 7 working days after the date of the document (s.441C (4)).
Where ss.425A and 441A are complied with then:
a)that compliance will be sufficient for compliance with s.425 (see VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 at [14]);
b)the notice of invitation will be taken to have been received by an applicant on the expiry of 7 working days; and
c)there can be no jurisdictional error based on the applicant’s failure to receive the notice of invitation (see NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 at [16]).
The Applicant submits that where there are material circumstances that go beyond mere failure to receive the notice of invitation and the Tribunal has notice of those circumstances before being functus officio these issues arise:
a)Whether s.425 or the common law gives rise to further obligations on the Tribunal to accord procedural fairness beyond its obligations in ss.425A and 441A; and
b)Whether the deeming provision in s.441C (4) means that the Tribunal has discharged its obligations of procedural fairness.
The Applicant argues that the answer to the first question should be “yes”, and relies on the decision of French J in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 at [56], and Gray J in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590.
The Applicant submits that the obligations of procedural fairness apply to the Tribunal in respect to the circumstances that came to its notice before it was functus officio. The starting point is that an applicant has an entitlement to be given an opportunity to attend a hearing before an order or determination is made against him or her. Procedural fairness requires that the applicant should be notified in order to be afforded the opportunity of persuading the decision maker not to make an adverse decision (see Minister for Immigration v George (2004) 139 FCR 127 at [29]).
The Applicant submits that the Tribunal did not take all reasonable steps open to it in order to invite the Applicant to attend a hearing. The Applicant therefore submits that it was reasonable for the Tribunal to call the Applicant’s authorised representative to confirm receipt of the invitation a second time, as the first call had been inconclusive. This act would be in accordance with substantial justice and the merits of the case and the Tribunal was therefore obliged by s.420 to take such a step.
The Applicant further submits that s.441C does not have the effect of deeming, for the purposes of s.425, that an applicant has been invited to the Tribunal hearing. It deems that a notice has been received for the purpose of s.441A. Where there are circumstances that demonstrate that an applicant may not have been invited to a hearing despite the Tribunal’s compliance with ss.425a and 441A, and the Tribunal has notice of those circumstances, the Applicant submits that s.441C does not have the effect of deeming that the Applicant has been invited for the purpose of s.425.
The Applicant also submits that the Tribunal did not consider his claims as there is no reference to those claims other than an oblique reference to the Applicant’s statement. It is the Applicant’s submission that the Tribunal has failed to take into account a relevant consideration and this failure constitutes a jurisdictional error (see Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 396 at [79]).
The First Respondent’s submissions
Counsel for the First Respondent submits that the basis of the Applicant’s amended application is misconceived. Where the Tribunal’s notice of invitation to a hearing is sent in accordance with statutory requirements and the Tribunal has complied with its obligations there is no failure to give the Applicant the opportunity to appear. The Tribunal is entitled to make a decision on the application for review in the absence of the Applicant (see SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779; NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184).
Conclusions
In my view the Applicant’s submission cannot succeed. The first point that needs to be made is that the circumstances that came to the attention of the Tribunal on 13th December 2004 were that the notice of invitation to the hearing addressed to the Applicant at his home address was returned unclaimed. This did not affect the obligation of the Tribunal. Whilst it is true that this information came to the attention of the Tribunal before it was functus officio, the Applicant’s home address was not the Applicant’s authorised address for correspondence. The Applicant had, in his application for review, authorised his migration agent to act for him in relation to the application. The Tribunal sent a notice of invitation to the hearing to the Applicant’s migration agent on 9th November 2004, and that letter was never returned to the Tribunal unclaimed.
It is immaterial that an officer of the Tribunal had tried to telephone the Applicant’s migration agent on 3rd December. There was no obligation to telephone the Applicant, or the agent, at all. The Tribunal had complied with its obligation to give the Applicant notice of the day on which, and the time and place at which, he was scheduled to appear (s.425A) by sending the notice to the Applicant’s migration adviser, being the Applicant’s last address for service (s.441A(4)). There was no obligation on the Tribunal to do anything else.
Whilst the Applicant has argued that the statutory obligations together with s.422B of the Migration Act, are not exhaustive and further duties and obligations are imposed by common law procedural fairness, this submission is incorrect at law. It is clear from the authorities that s.422B is exhaustive in its application to the opportunity to attend a hearing (NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781; Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1249; SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493; Minister for Immigration & Multicultural & Indigenous
Affairs v Katisat [2005] FCA 1908; Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61).The Tribunal does not fall into error where it merely complies with its obligations under the Migration Act.
The Applicant complains that he was misled by his migration agent and did not attend the hearing for that reason. In my view, the Tribunal was in no way aware that the Applicant had not attended the hearing due to some default by his migration agent. There is no jurisdictional error in such a case (NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (supra); M172 v Minister for Immigration & Anor [2004] FMCA 23; SZBBL v Minister for Immigration [2004] FMCA 185; SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779; SZGQL v Minister for Immigration & Ors [2006] FMCA 446).
In Al Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876, Lord Bridge stated at 896:
These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his own behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him.
In my view, there is no jurisdictional error on the part of the Tribunal in this regard. The Applicant may well have recourse to his migration adviser, but that is not a matter for this court in these proceedings.
The Applicant’s claim that the Tribunal did not consider his claims cannot stand. The Tribunal stated that:
On the very, limited, vague and highly generalised information put forward by the Applicant, the Tribunal cannot be satisfied about the Applicant’s claim that he is associated with Falun Gong or that he faces harm from the Chinese authorities because of this.[2]
[2] Court Book page 62
The inadequacy of the information before the Tribunal was the reason for the Tribunal’s decision. It was already the case that, on the information available to it prior to the hearing, the Tribunal was not satisfied that the Applicant feared persecution for a Convention reason. In the absence of further information, it followed that the application for review would result in the affirmation of the decision of the delegate to refuse the application for a protection visa (see SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 at [18]).
There is no jurisdictional error. The decision is a privative clause decision for the purpose of s.474 of the Migration Act (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]). The application will be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 25 August 2006
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