SZHPA v Minister for Immigration
[2006] FMCA 1168
•9 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHPA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1168 |
| 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 |
| SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 |
| Applicant: | SZHPA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3332 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 August 2006 |
| Date of last submission: | 9 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
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 $2,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3332 of 2005
| SZHPA |
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 affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa. The decision was handed down on
1st November 2005.
Background
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 17th February 2005. She applied for a Protection (Class XA) visa on 16th March 2005 but it was refused. The applicant then sought a review by the Refugee Review Tribunal.
Application for RRT Review
On 12th July 2005 the Applicant lodged an application for review of the delegate's decision with the Refugee Review Tribunal. In that application the Applicant set out her residential address in Australia. She also nominated that address as her address for all correspondence. The Applicant did not provide any telephone numbers in her application for review. At the same time as she lodged the application for review the Applicant lodged a typed statement in English in which she sought to challenge the delegate's decision.
The Tribunal wrote to the Applicant on 5th September 2005, directing the letter to her at the address she provided on her application for review. The letter told the Applicant that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. Accordingly, the Tribunal invited the Applicant to attend a hearing on Tuesday, 4th October 2005 at the Tribunal's premises in Clarence Street, Sydney.
The Applicant did not respond to the hearing invitation. She did not attend the Tribunal hearing either. The Tribunal proceeded to deal with the matter on 7th October 2005 by dealing with it on the material before it without giving the Applicant a further opportunity to appear before the Tribunal.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on page 59 of the Court Book. The Tribunal accepted that the Applicant was a national of the People's Republic of China.
The Tribunal did not find the Applicant's evidence, such as it was, to be sufficient for it to be satisfied. The Tribunal said:
The Applicant's claims are all very briefly sketched and entirely unsupported. The Applicant provides no detailed evidence regarding her supposed political activities and no detailed explanation as to how she avoided being implicated as a dissident for so long. In addition, the Applicant has not availed herself of the opportunity to give additional evidence to the Tribunal after receiving a negative decision in her case from the Minister's delegate.
See Court Book at page 59. The Tribunal went on to find that it was unable to make substantive findings of fact in the matter. The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and therefore did not satisfy the criterion set out in sub-s.36(2) of the Migration Act.
The Tribunal affirmed the delegate's decision not to grant a protection visa.
Application for Judicial Review
The Applicant filed an application under s.39B of the Judiciary Act 1903 on 15th November 2005. In an Amended Application filed on 20th February 2006 the Applicant sets out three grounds for relief:
(1)The RRT did not have enough evidence before they did the decision and they did not consider the difficulty on me to obtain evidence from China. They don't think the situation if I go back to China now. I'm sure I will be in danger.
(2)The RRT has jurisdiction error in the processing of the decision.
(3)Due to my English problem I did not find the right place for hearing.
The Applicant did not file any written outline of submissions. The solicitors for the First Respondent in their written submissions filed on 26th July 2006 state that the Amended Application seeks impermissible merits review and pleads bland allegations of jurisdictional error with no particulars or evidence in support.
The Applicant has not filed any evidence in support of her claim that she was unable to find the place where the hearing was to be held. The Applicant told the Court that she had received a notice from the Tribunal about the hearing but her English was not good enough to understand the letter's contents. By the time she had obtained assistance to translate the letter, the time for the hearing had passed. She also told the Court that in her view the Tribunal did not allow her sufficient time to prepare her case as she needed more time to obtain documentary evidence from China. In answer to a question from the Bench, the Applicant was not able to explain the assertion in her application that the Tribunal had made an error in processing her case, saying that she had not attended the Tribunal hearing.
The Applicant also complained that she had not had any legal advice from a lawyer on the RRT panel even though she had asked to take part in the scheme when her application was first before the Registrar on 15th December 2005. It was put to her from the Bench that her case had been referred to a barrister on 27th January 2006 and a letter had been sent to her from the Court on that date. The Applicant replied that she did not seem to have received any letter.
For the Respondent Minister, Ms Johnson, solicitor, relied on the Minister's written submissions and pointed out to the Court that there was no evidence that the Applicant had attempted to contact the RRT after she had missed the hearing. She also submitted that there was no evidence that the Applicant had sought an extension of time in order to provide documents from China. She submitted that no jurisdictional error had been shown in the Tribunal's decision. The Applicant said in reply that she did not understand how the legal process worked in Australia. When she was able to understand the letter from the Tribunal, she realised that she had missed the hearing date. She did not realise that that was her last opportunity to attend a hearing.
Turning to the grounds raised in the Amended Application, I note that the Applicant says that the Tribunal did not have enough evidence before it. The fact that the Tribunal had insufficient evidence can be partly explained by the absence of the Applicant from the hearing. I am satisfied that the Tribunal complied with s.425 of the Migration Act when it wrote to the Applicant on 5th September 2005 advising her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone.
The Tribunal complied with its obligation to invite her to a hearing and forwarded that invitation to the address for correspondence given by the Applicant. The fact that the Applicant did not attend the hearing and did not contact the Tribunal was sufficient to allow the Tribunal to proceed to make a decision without taking any further action to enable the Applicant to appear before it under the provisions of s.426A of the Migration Act. I am satisfied that no jurisdictional error has been shown in respect of the procedures of the Tribunal in this case.
The Tribunal made it clear that it did not have sufficient evidence upon which it could be satisfied about the essential details of the Applicant's claim. In the absence of sufficient information for the Tribunal to be satisfied that the Applicant met the requirement for a visa, the Tribunal had no option but to refuse to grant a visa under the provisions of s.65 of the Migration Act. There is no evidence that the Applicant sought an extension of time in order to obtain further evidence for the Tribunal hearing.
The Applicant's claim that the Tribunal did not consider the situation if she were to go back to China and her reiteration of her claim that she feared that she would be in danger does represent a request for merits review. Merits review means a challenge to the factual findings made by the Tribunal. Provided that there is evidence upon which a Tribunal could make a factual finding to that effect, the Court on judicial review will not find jurisdictional error. It is not the function of a Court conducting judicial review to reconsider the facts and make its own conclusions on the facts.
The Applicant alleged jurisdictional error by the Tribunal in the processing of her application and the making of the decision. She has provided no details of those errors and I am unable to discern any. It is unfortunate that the Applicant did not attend the Tribunal hearing. The Court has sympathy for a person who is not able to read English and understands that a person whose first language is Chinese would find a great deal of difficulty in reading documents prepared in English. Nevertheless, the letter from the Tribunal sent to the Applicant's address would have appeared to be an official document and there was an obligation on the Applicant to ascertain the contents of that document within a reasonable time.
This is not a case where the Tribunal listed the application for hearing in an unreasonably short time. Once the Applicant had found out that she had missed the hearing, it would have been open to her either to arrange for someone to contact the Tribunal on her behalf or to attempt to communicate with the Tribunal by means of the telephone interpreter service. Had she done so in time, she may have been able to bring to the Tribunal's attention the fact that she had unwittingly missed the hearing date. When there was no communication from the Applicant, the Tribunal was within its rights to proceed to determine the matter without taking any further steps.
In this case the Tribunal did not have sufficient information to make a finding in favour of the Applicant. That is why the Tribunal invited the Applicant to attend a hearing. When the Applicant did not attend the hearing, the Tribunal had no more information than it had before. It is submitted on behalf of the Minister with some force that the rejection of her application was the inevitable consequence of her non‑attendance. I am referred to the decision of the Full Court of the Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5].
I am mindful of the fact that the Applicant is not legally represented. She has told the Court that even though she asked to take part in the Tribunal's legal advice scheme she did not receive that advice. Again, that is most unfortunate. I note, however, that the officer of the Court Registry who administers the scheme made a referral on 27th January 2006. The Court file shows that the Applicant was sent a letter at the address she gave the Court at the time on that same date. The Applicant has claimed that she did not seem to have received that letter but she has not produced any evidence that before today she has complained of not being put in contact with a legal adviser. In my view, it is unfortunate that the Applicant has missed out on her chance of obtaining legal advice free of charge.
I have read through the decision independently of the Applicant's application in order to ascertain whether an arguable case can be made in respect of any jurisdictional error. I am unable to discern any jurisdictional error or any suggestion of one. It follows that the application must be dismissed. The decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. As such, it is not susceptible to judicial review or any orders in the nature of certiorari, prohibition or mandamus. As the application is to be dismissed, I will hear from the parties on the question of costs.
There is an application for costs. The Applicant has been wholly unsuccessful in these proceedings. I accept the fact that she is unhappy about paying the Minister's legal costs, especially as they have been estimated at $2,700.00. There is no reason, however, why I should not make an order for costs in favour of the successful Respondent. The sum of $2,700.00 put to me by Ms Johnson for the Minister appears to me to be an appropriate figure.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 14 August 2006
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