SZHRH v Minister for Immigration - [2006] FMCA 1385

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHRH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1385

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

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.32, 424A, 425, 426A,474
Federal Magistrates Court Rules 2001, rr.6.01, 44.06

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215
SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195

Applicant:

SZHRH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3462 of 2005

Judgment of:

Scarlett FM

Hearing date:

16 August 2006

Date of Last Submission:

16 August 2006

Delivered at:

Sydney

Delivered on:

16 August 2006

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondents:

Phillips Fox

ORDERS

The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3462 of 2005

SZHRH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

This is an application for review of a decision of the Refugee Review Tribunal that was signed on 12^th October and handed down on

1^st November 2005. The Tribunal affirmed a decision of a Delegate of the Minister not to grant the applicant a protection visa.
The applicant seeks orders:
a)setting aside the Tribunal decision;
b)a declaration that he is a refugee;
c)an order remitting the application to the Refugee Review Tribunal for further consideration according to law;
d)an order that the Tribunal Member who had heard the review not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter;
e)an order restraining the Minister from removing the applicant from Australia;
f)any other order that the Court thinks fit; and
g)Costs.
The applicant is a citizen of the People's Republic of China, who arrived in Australia on 4^th April 2005. He applied for a protection (class XA) visa on 26^th April 2005, but it was refused on 26^th July in that year. He then sought a review of that decision by the Refugee Review Tribunal.
The applicant lodged an application for review at the Registry of the Tribunal on 25^th August 2005. He gave his residential address and a telephone number. He did not nominate an advisor such as a Migration agent to act for him, but he gave a post office box number at Sydney south as his mailing address.
The Tribunal wrote to the applicant on 26^th August acknowledging receipt of his application, and explaining that a Tribunal Member would look at his application and either make a decision in his favour or invite him to attend a hearing. The letter went on to say why a hearing was important.
The Tribunal wrote to the applicant again on 8^th September 2005.

In that letter the Tribunal said that it had considered the material before it in relation to his application, but was unable to make a decision in his favour on this information alone.
The Tribunal invited the applicant to attend a hearing of the Tribunal to give oral evidence and present arguments in support of his claims.

The letter told the applicant that it could ask the Tribunal to obtain oral evidence from other people. The letter told the applicant that the hearing was listed for 12 noon on Monday, 10^th October 2005.

The letter included a “response to hearing information” form, and asked the applicant to complete that form and return it.
The applicant did not attend the hearing. The Tribunal noted that it had written to the applicant by registered mail inviting him to give oral evidence at a hearing on 10^th October. The Tribunal noted that on

6^th October an officer of the Tribunal telephoned the phone number provided by the applicant and a female voice answered who stated that nobody with the applicant's name lived there.
As the applicant did not appear before the Tribunal, the Tribunal exercised 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 it. The Tribunal's decision was in fact signed on 12^th October 2005, which is two days after the hearing date.
The Tribunal considered the applicant's claims to have been a married man who had been a farmer. The Tribunal noted the applicant's claim to have commenced the practice of Falun Gong in the mid-1990s, and that he subsequently suffered severe persecution and mistreatment. The Tribunal noted his claim that he was detained for several days and was interrogated, threatened, and abused. After he was released, he claimed to have been kept under surveillance and required to report to the police once a week.
The Tribunal noted the applicant's claims that if he were to return to the People's Republic of China he would immediately be arrested and sentenced to at least 10 years' imprisonment.
The Tribunal's findings and reasons are set out on pages 63 through to 65 of the Court Book. The Tribunal noted that the applicant has claimed - and the Tribunal accepted - that he was a citizen of the People's Republic of China. No reason for that is given, but I note that the applicant provided a copy of his Chinese passport when making his application for the protection visa.
The Tribunal noted that the applicant did not attend the hearing, and set out the steps taken by the Tribunal to contact him.
The Tribunal noted at page 64 of the Court Book that as the applicant did not attend an oral hearing, his claims could not be tested by the Tribunal. The Tribunal noted the applicant's claims, but said that there was nothing to support those claims other than his unsubstantiated assertions.
The Tribunal noted a five-page exposition on the Falun Gong which had been provided by the applicant. The Tribunal took the view that that document could have been obtained by research or through contacts and placed no weight on it.
The Tribunal overall, however, found that there were insufficient particulars provided by the applicant to enable the Tribunal to be satisfied that the events claimed had actually occurred, or that the applicant was a Falun Gong practitioner. As the Tribunal was not satisfied of that fact, the Tribunal was not satisfied on the evidence that the applicant faced a real chance of persecution should he return to the People's Republic of China.
The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason, and was not satisfied that he was a refugee. Accordingly, the Tribunal affirmed the decision not to grant a protection visa.
The applicant has sought a review of that decision in this Court by filing an application on 28^th November 2005. He has filed no other documents since then. He should have filed an affidavit with his application, but did not do so. The applicant has not filed any documents since that time.
The applicant seeks the orders to which I referred earlier, and provides grounds of his application to the effect that the decision involved an error of law for four reasons. Those reasons are as follows:
(a)     Procedures that were required by the Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not reserved;
(b)     The decision was an improper exercise of the power conferred by the Migration Act and Regulations;
(c) The decision involved an error of law being an error involving an incorrect application of the law to the facts as found by the respondent;
(d)     There was no evidence or other material to justify the making of the decision.
The applicant did not file any written submissions, but attended Court and made oral submissions. He was not able to answer questions from the Bench as to why the Tribunal decision involved a failure to follow procedures, or was an improper exercise of power, or any other legal reason.
He told the Court that he had asked someone who worked for a newspaper called the Epoch Times to do this for him because he does not know the law. He confirmed that he had not attended the Tribunal hearing, but said that he did not have any knowledge of the letter telling him when he should attend the hearing. When asked if he had cleared his post office box, he said that he was not there at the time and that the person who assisted him was also away.
The applicant said that a person who helped him whose name was

Mr Sun had told him about his application:
Just by looking at it, they should give it to you.
That statement soon proved to be incorrect. The person concerned was not a migration agent, nor was he a lawyer.
He told the Court that the best thing would be if the Court could give him refugee status, and he had nothing further to say. He told the Court in reply that because he did not speak or write English he had asked someone to prepare his application for him because he had no knowledge of the matters.
The solicitor for the respondent relied on the written submissions filed on behalf of the first respondent Minister on 3^rd August 2006. In those submissions, the Minister submits, and correctly, that the first three grounds given by the applicant, namely that the Tribunal did not follow procedures under the Act or the Regulations; that the decision involved an improper exercise of power; that the Tribunal committed an error of law were matters without particulars. The submission that there was no evidence upon which the Tribunal could base its decision was also unparticularised.
The situation as I see it is that the Tribunal complied with its obligations under s.425 of the Migration Act. The Tribunal wrote to the applicant inviting him to a hearing, and sent its letter to the address given in the applicant's application. The Tribunal was not aware that the applicant had not received the letter which remained in the post office box, presumably, nor is it relevant that the Tribunal was not aware.
The Tribunal on 6^th October, not having heard from the applicant, went through a procedure, and an officer of the Tribunal completed a checklist. A copy of that check-list appears on page 55 of the Court Book. The checklist notes that there was no authorised recipient mentioned on the applicant's application, and that the officer had checked to see whether a reply had been received by the Tribunal and not yet attached to the file.
The officer checked the movement database to ascertain whether the applicant had left the country. The officer noted on the file that the applicant was still in Australia, and that the officer had phoned the telephone number given in the applicant's application and a female person answered who claimed no one of the name of the applicant was on that number.
In my view, the Tribunal gave sufficient notice of the hearing to the applicant, it went further than it was required to do in attempting to contact the applicant about the hearing, and correctly applied s.426A of the Migration Act in making a decision to deal with the application for review without giving the applicant further opportunity to attend.
It is clear that the reason for the decision by the Tribunal was that there was insufficient evidence to enable it to be satisfied of the applicant's claims. That is hardly surprising as the Tribunal had informed the applicant in writing by means of its letter of 8 September that it was unable to make a decision in his favour on the information that it had. The applicant had not provided any more information, and had not attended the Tribunal hearing.
In the circumstances, the Tribunal was not satisfied. In SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 at [15] and [16], said that a legislative regime which required a positive state of satisfaction as to whether protection obligations are owed mandated a refusal decision if that state of satisfaction was not reached.
The Tribunal found there was no substantiation to the applicant's claims, and gave no weight to the five-page exposition on Falun Gong that had been provided.
I am of the view that the first respondent's submission is correct; that no obligations under s.424A of the Migration Act arose in relation to that. The exposition formed part of the Tribunal's reasoning processes in evaluating the sufficiency of the material provided.
In the circumstances where the reason for the decision by the Tribunal was the absence of information, it is normally the case that obligations under s.424A of the Act do not apply. I refer to SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29]. I also note the decision subsequent decision by Allsop J in SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 at [12]. I might also note that in the Minister's submissions, the surname of Allsop J is incorrectly spelt, as I understand that his Honour spells his name with two Ls.
The applicant, as is so often the case with applicants who do not attend a Tribunal hearing, did not provide sufficient information to the Tribunal to allow the Tribunal to be satisfied that he met the criterion for a protection visa under sub-s.32 of the Migration Act. As a result, the Tribunal could not be satisfied that a protection visa should be granted.
Turning to the applicant's orders that he seeks, I made it clear to the applicant at the commencement of the proceedings that the Court did not have the power to make the declaration that he is a refugee, which he sets out in order 2. If the Court is satisfied that jurisdictional error has been shown, the Court will remit the applicant's application to the Tribunal for consideration according to law. It does not have the power to make a declaration that a person is a refugee.
The order that the Tribunal Member should not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter is an order that, on the evidence before me, was never going to be made. There was absolutely no reason given as to why a particular Tribunal Member should not constitute the Refugee Review Tribunal in any further hearing, and in my view, where a matter is remitted to the Refugee Review Tribunal, it is the function of the principle member of that Tribunal to decide the constitution of the Tribunal to make a further hearing of any application. It is not appropriate for the Court to do so.
The applicant also sought an order for costs. Bearing in mind that he was not legally represented at any stage, and that the filing fee for his application was waived, there was no ground upon which the Court could or would make an order for costs.
There are some other procedural matters which need to be borne in mind by the respondents. I note that no response was ever filed.

A notice of appearance was filed on behalf of the first respondent Minister, and later a notice of appearance was filed on behalf of the second respondent Refugee Review Tribunal.
The proceedings were commenced prior to the amendments to the Federal Magistrates Court Rules, but the situation is now that the first respondent at least should file at response. R. 44.06 says:
(1) Each respondent who intends to oppose an application must file and serve a response including each ground on which the respondent opposes the application and details of each ground.
In future, the Court will expect a respondent who opposes the application to file a response.
The second point is that each respondent filed a notice of appearance under order 9, r.3(1) of the Federal Court Rules. In my view, this is no longer a correct procedure. Order 9 of the Federal Court Rules does not apply in the Federal Magistrates Court. The Rules set out those of the Federal Court Rules that are applied in the Federal Magistrates Court, and order 9 is not one of them.
The proper course for a respondent is to either file a response as the first respondent Minister should have done under r.44.06, or to file a notice of address for service, as set out in r.6.01. Those are the correct documents that apply in the Federal Magistrates Court, and the notice of appearance under order 9 r.3(1) of the Federal Court Rules is not an appropriate document to be filed by any respondent in proceedings in this Court under the Migration Act. I would expect the legal advisors for the respondent bear this practice in mind in future.
Those matters of course are matters of procedure which are not relevant to the application before the Court today. The fact is the applicant has not demonstrated any jurisdictional error on the part of the Refugee Review Tribunal. I am mindful of the fact that he is not legally represented, and I have read through the decision thoroughly myself in order to be satisfied that no arguable case for jurisdictional error arises; that the applicant did not draw my attention to it; I am unable to discern.
As there is no reviewable error, the application must be dismissed.

The decision of the Tribunal is a privative clause decision as defined in

s.474(2) of the Migration Act and as such orders for certiorari and mandamus do not lie. The application will be dismissed. I will hear submissions on costs.
There is an application for costs on behalf of the first respondent Minister. The applicant has been wholly unsuccessful in his claim, and in my view this is an appropriate matter for an order for costs to be made. The amount sought is $2,800.00, which is a comparatively modest sum, and well within the range envisaged by the Federal Magistrates Courts Rules. I intend to order that the applicant is to pay the first respondent's costs in the sum of $2,800.00.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 1 September 2006