SZHOU v Minister for Immigration

Case •

[2006] FMCA 1215

•

15 August 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHOU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1215
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 court.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.425
SZEZI v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
Murphy v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657
VNAA v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) 231 FCR 407
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215
SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407
Applicant: SZHOU
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3311 of 2005
Judgment of: Scarlett FM
Hearing date: 15 August 2006
Date of Last Submission: 15 August 2006
Delivered at: Sydney
Delivered on: 15 August 2006

REPRESENTATION

Applicant: No Appearance
Solicitor for the Respondent: Mr  Leerdam
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $4,100.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3311 of 2005

SZHOU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal that was signed on 6th October 2005 and handed down on 27th October 2005. The Tribunal affirmed a decision of a delegate of the Minister not to grant a protection visa to the Applicant. 

  2. The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and therefore found that the Applicant did not satisfy the criteria set out in sub-s.36(2) of the Migration Act for a protection visa.

  3. The Applicant, by means of an application filed on 14th November 2005, sought judicial review of that decision. The application came before this Court on 15th May 2006 and I note that the Applicant attended Court on that occasion. I made directions for hearing and listed the application for Final Hearing at 2:00pm today. 

  4. The Applicant has not attended. He did not attend when called at 2 minutes past 2 or at 30 minutes past 2.  My inquiries through my own staff have revealed that no message has been received from the Applicant, or from anyone on the Applicant's behalf, indicating that he is delayed or ill or injured or in some way prevented from attending Court today.

  5. In my view, it is appropriate therefore to deal with the matter in his absence. I am asked by the solicitor for the First Respondent, Mr Leerdam, to proceed to a hearing and, in my view, Rule 13.03A of the Federal Magistrates Court Rules permits that to be done.

  6. The Applicant filed an Amended Application on 28th February 2006 seeking an order in the nature of certiorari and an order that the Tribunal re-hear his application for protection visa. He accompanied that application with an affidavit saying as follows:

    1.   I am the Applicant in this matter.

    2.   I have applied for a protection visa in Australia requesting protection on the grounds of being a Falun Dafa practitioner in China and in Australia.

    3.   When my protection visa was refused, I applied for review to the Refugee Review Tribunal.

    4.   When my review application was refused by the Refugee Review Tribunal, I lodged a Court review application for this matter.

    5. The Tribunal breached s.424A of the Migration Act by not giving me the opportunity to get additional information to rebut the country information upon which the Tribunal relied.

    6.   The Tribunal did not consider all of my claims fairly and carefully.

  7. The ground in the Amended Application alleges that the notice sent by the Tribunal, pursuant to s.425 of the Migration Act, inviting the Applicant to a hearing was never received by the Applicant as a result that he was not aware of the hearing conducted by the Tribunal. There is no issue as to the fact that the Applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear, and the Tribunal proceeded to deal with the application in the absence of the applicant, using its powers under s.426A of the Migration Act.

  8. The Applicant had forwarded his application for review to the Tribunal and it was received on 11th July 2005. In section D of the application, the Applicant had set out a mailing address, being a post office box number in the City of Sydney, which was an address different from his residential address which was at a home unit in a Sydney suburb. The Applicant did not nominate any migration agent or other advisor to act on his behalf. The Applicant did not lodge any other documents with his application. 

  9. The Tribunal acknowledged receipt of his application by means of a letter dated 11th July 2005 posted to the Applicant's post office box number, and on 2nd September 2005 wrote to the Applicant at that same mailing address informing him 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. The Tribunal then invited the Applicant to attend a hearing of the Tribunal on Thursday 6th October 2005 at 10:00 am.

  10. I note that at page 56 of the Court Book there appears a copy of a checklist headed Checklist No Reply to Hearing Invitation which is an internal document of the Refugee Tribunal.  The document noted that a person, an officer of the Tribunal, had checked whether a reply had been received by the Tribunal and not attached to the file. It checked the invitation sent to the authorised recipients address for service and had checked the movements data basis, I imagine to ascertain whether the Applicant had in fact left the country.

  11. The officer noted on the file:

    Sent to address on application - no response.

  12. The Tribunal Member noted the absence of the Applicant and decided to make a decision on the review without taking any further action to enable the Applicant to appear.  The Tribunal set out a summary of the Applicant's claims and evidence such as they were and that summary appears on pages 63 and 64 of the Court Book. 

  13. The Tribunal's findings and reasons are set out on pages 64 and 65 of the Court Book. The Tribunal accepted that the Applicant was a national of the People's Republic of China, having seen a photocopy of the Applicant's passport on the Department's file.

  14. The Tribunal, however, was not satisfied, based on the insufficient detail that the Applicant provided, that the Applicant invoked protection obligations in Australia. The Tribunal set out examples of the information that the Applicant did not provide relating to his practice of Falun Gong, or Falun Dafa as it is also known. It is clear that the Tribunal, particularly as set out on page 65 of the Court Book, was not satisfied that the statutory elements of the ground of protection had been made out and this was based on the evidence currently before the Tribunal.

  15. The Tribunal was not satisfied that the Applicant was a sincere and genuine practitioner of Falun Gong or even that he was a practitioner.  The Tribunal was not satisfied the Applicant was imputed with such practice in the People's Republic of China in the past or that he had a real chance of so being imputed in the future if he should return to China.

  16. The Tribunal did not accept that the Applicant had a well-founded fear of persecution arising from his alleged practice of Falun Gong in the People's Republic of China or that he had a real chance of persecution for any other reason based on the evidence before it, or more correctly, the lack of evidence.

  17. Accordingly, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason and affirmed the decision of the delegate not to grant a protection visa. The Applicant, as I said, has not attended Court today.  The solicitor for the Respondent has sought to read two affidavits, one affirmed on 18th July 2006 by Sarah Jane Peterson, setting out the results of her inquiries from Australia Post relating to the history and evidence of delivery of a registered post article, being the letter inviting the Applicant to attend the hearing.

  18. The second affidavit, sworn on 14th August 2006 is by Jonathon Willoughby-Thomas, the District Registrar of the Refugee Review Tribunal. His affidavit sets out his familiarity with the general practices and systems that were in place in the Tribunal in September 2005, the sending out of hearing letters, and he sets out the practices as he knew them. Annexed to his affidavit are copies of the letter of 2nd September 2005 which bears a written notation setting out the number of the registered post document and there is also annexed a copy of the receipt that a sender receives relating to this particular Applicant.

  19. The solicitors for the First Respondent have filed written submissions in respect of the proceedings before me. They submit that the Tribunal fulfilled its obligation under s.425 inviting the Applicant to attend a hearing. They also submit that sufficient notice was given of the hearing under s.425A of the Migration Act. The invitation to hearing was sent to the Applicant's address for service that he provided on his review application. They rely on the affidavit of Jonathan Willoughby‑Thomas, the District Registrar, as to the standard procedure of the Refugee Review Tribunal.

  20. They contend that the Tribunal complied with the provisions of s.441A (4) of the Act by dating the hearing invitation, dispatching it within three working days of the date of the document and sending it by pre-paid post to the Applicant at the address for service that he provided to the Refugee Review Tribunal. They submit, and in my view correctly, that the Applicant is deemed to have received the invitation to hearing seven working days after the date of the document and refer the Court to the provisions of sub-s.441C(4)(a) of the Migration Act.

  21. They contend, and in my view correctly, that whether or not the Applicant in fact received the invitation to hearing is irrelevant. The Applicant is deemed to have received the information of the invitation where it was sent to him by the Tribunal in accordance with the procedures set out in the Act.  I am referred to the decisions of Murphy v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657 at [69]; and VNAA v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) 231 FCR 407 at [15] and the recent decision of SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 which recently applied the decision in VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407.

  22. In SZDPB, their Honours Spender, French and Cowdroy JJ held at [17] that Nicholls FM was correct in holding that there was no want of procedural fairness arising from a claim of lack of notice for hearing invitation. Their Honours held that it was not to the point that the Applicant had not received actual notice until after the scheduled hearing date. Their Honours cited s.422B and held that compliance with the statutory regime in ss.125, 425A and 441G satisfied the requirements of procedural fairness.

  23. The Respondents in this case contend, and in my view correctly, that when the Applicant failed to respond to the hearing, the Tribunal proceeded to make its decision, as it was entitled to do, pursuant to the provisions of s.426A of the Migration Act. That decision was primarily based on findings that there was insufficient evidence to be satisfied of the applicant's claims. I am referring to the decision of SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 where the Full Court at paragraphs [15] and [16] concluded that a legislative regime which required a positive state of satisfaction as to whether protection obligations mandated a refusal decision if that state of satisfaction is not reached.

  24. I would comment that that decision in SJSB is a decision of the Full Court of the Federal Court and is binding on this Court and, needless to say, I intend to follow it. The Respondents submit that the Tribunal was not obliged to notify the Applicant of the lack of information in the statement provided with his protection visa application because this was not information pursuant to the provisions of s.424A and I am referred to the decision of SZEZI v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29] and [30].

  25. As to the Applicant's claim in his affidavit that the Tribunal breached s.424A by failing to give him the opportunity to give information to rebut country information. It is clear that s.424A imposes no such obligation. In my view, there is no jurisdictional error that appears. The decision is a privative clause decision as set out and defined in sub-s.474(2) of the Migration Act. As the decision is a privative clause decision, orders in the nature of certiorari and mandamus do not lie. The application will be dismissed and I will hear a submission on costs.

  26. There is an application for costs on behalf of the First Respondent.  The Applicant has been unsuccessful, indeed, has not attended Court.  There is no indication that the Applicant was not going to attend on the hearing and, indeed, he had attended on previous occasions before the Registrar on 13th December 2005 and on 10th March 2006 and before me on 15th May. 

  27. In my view, it was incumbent upon the First Respondent to prepare the application for a Final Hearing on the basis that it would be a fully defended hearing. No indication was given by the Applicant that he would not attend Court today.  In my view this is a proper matter for an order for costs in favour of the First Respondent Minister.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  22 August 2006

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