SZHRN v Minister for Immigration
[2006] FMCA 141
•20 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHRN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 141 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of China – where applicant did not attend RRT hearing. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 475A Federal Magistrates Court Rules 2001 |
| Applicant A159 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 473 Minister for Immigration & Multicultural & Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73 NAQRvMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1033 NAVX vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 SZDXC vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 |
| Applicant: | SZHRN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3480 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 January 2006 |
| Date of Last Submission: | 20 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Mr Chami Clayton Utz |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,750.00 and I allow (6) six months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3480 of 2005
| SZHRN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS 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. The decision was made on 7th October 2005 after a hearing scheduled for 5th October 2005. The Refugee Review Tribunal handed down its decision on 1st November 2005. The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs not to grant a protection visa to the applicant.
The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 6th February 2005. On 4th May 2005 he applied for a protection (Class XA) visa but this was refused on 21st June.
On 14th July 2005, the applicant sought a review of that decision by the Refugee Review Tribunal. The Tribunal wrote to the applicant on
5th September 2005 informing him 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. The letter invited the applicant to attend a hearing to give oral evidence and present arguments in support of his claims. The hearing was scheduled for 9 am on Wednesday, 5th October 2005.
The applicant did not respond to the invitation, nor did he attend the Tribunal hearing. The Tribunal noted that the letter to the applicant, which was a registered letter, was not returned unclaimed.
The Tribunal member also stated at page 56 of the Court book that the Tribunal checked that it had addressed its invitation correctly.
It would appear to me that the reason why the letter was not returned unclaimed was because the applicant had given a post office box, PO Box A765 Sydney South, New South Wales 1235, as his mailing address. He had or the person who had prepared his application for him, had filled in section D of the application which said "Where do you want us to send correspondence about your application? Tick one box only. My residential address in Australia or my mailing address". The applicant nominated his mailing address. As the Tribunal was satisfied that the letter had been correctly addressed and had not been returned unclaimed, the Tribunal member proceeded to hear the application without giving the applicant a further opportunity to appear before it. The Tribunal is given this power by s. 426A of the Migration Act.
The Tribunal considered the applicant's file with the Department of Immigration & Multicultural & Indigenous Affairs and noted the applicant's claims that he was a Christian who never liked attending state registered churches because the priests use the pulpit to promote support for the state. The Tribunal noted that the applicant claimed that he and his parents had joined an unauthorised house church which was raided, presumably by the police, not long afterwards and he was detained for three months. The Tribunal noted the applicant's claim that he was released on condition that he undertook not to continue any involvement in unregistered churches and had to report regularly to a police station. He claimed he had left China legally but had to pay money for his passport.
In its findings and reasons, the Tribunal accepted that the applicant was a national of the Peoples Republic of China and noted at page 59 of the Court book that the applicant's claims are all very briefly sketched and entirely unsupported. The applicant provided no evidence to the effect that he was a Christian beyond claiming that he was. The Tribunal found that it was unable to make substantive findings of fact in the matter. It could not accept on the thinly defined assertions made by the applicant that he was a Christian, a member of an unregistered church or a past member of such a church, or a person who had been detained. The Tribunal member noted at page 60 of the Court book:
The applicant's silence in the present matter does not help his case.
The Tribunal was not satisfied that the applicant faced a real chance of Convention related persecution in China and affirmed the decision not to grant a protection visa.
The applicant filed an application under the Judiciary Act 1903 (Cth) for review of the Tribunal's decision pursuant to s.39B of that Act.
He seeks orders:
1)Setting aside the decision of the Refugee Review Tribunal;
2)A declaration that he is a refugee;
3)In the alternative, an order setting aside the decision and remitting the matter to the Refugee Review Tribunal for further consideration;
4)An order that the Tribunal member not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter;
5)An order restraining the respondent Minister from removing the applicant from Australia;
6)Further order as the Court thinks fit; and
7)Costs.
The grounds of the application are that the decision involved an error of law in that: a) procedures required by the Migration Act and regulations were not observed; b) the decision was an improper exercise of the power conferred by the Act and regulations; c) there was an error involving an incorrect application of the law to the facts as found; and d) there was no evidence or other material to justify the making of the decision.
In support of his claims, the applicant made oral submissions to the Court. He said that he had not attended the Tribunal hearing because he used his friend's address as a mailing address. His friend went back to China on business and the applicant stopped living at his friend's address and went to live at an address in Revesby. His friend, who prepared the application, did not return from China until later, so the applicant did not receive the letter inviting him to the hearing until it was too late. The applicant told the Court that he believed that another Tribunal member should hear any further case because he did not think that the Tribunal member who heard his case handled the matter properly.
As to the first ground of procedures not being observed, the applicant said that the procedures were not observed because he did not receive the letter. He left a telephone number but the Tribunal did not ring him. When asked how the Tribunal would have made itself understood if he lived by himself and does not speak English, he asked the Court "Don't they have interpreters?".
Similarly, the applicant claimed for his second ground that the decision was an improper exercise of power because he says that the Tribunal did not give him the notification of the hearing. When asked to explain ground c) which concerned an error involving an incorrect application of the law to the facts, the applicant was not sure what that meant.
As to ground d) that there was no evidence or other material to justify the making of the decision, the applicant said that he was involved in the church and that there is no religious freedom in China.
In answers to questions from the Bench, the applicant said that he did not know the address of the friend where he lived and believed that the friend had gone away on business back to China at some time in July and came back possibly in September. I note that the application was not filed with the Refugee Review Tribunal until 14th July and the Tribunal replied on that same date acknowledging receipt of the application. The applicant said that he did not accept that letter, so it appears that the applicant's friend left Australia or did not check his post office box, very shortly after he filed the application. If the friend arrived back in September at some stage, it is surprising that the friend did not check his post office box, because there was a letter in it dated 5th September inviting the applicant to attend a hearing on 5th October.
I am not satisfied that there is any evidence of any failure of the Tribunal to invite the applicant to a hearing under s.425 of the Migration Act, or any reason why the Tribunal wrongly exercised its power to proceed to a hearing under the provisions of s.426A of the Act. If indeed the applicant's friend who the applicant told the Court was not a migration agent but just a friend, did complete the application for review giving his post office box as an address for receipt of correspondence from the Tribunal, it appears to me to be the height of folly to have done such a thing when the applicant's friend promptly went overseas and did not return to Australia for several months. It is quite obvious that whilst the post office box was in operation, any mail sent to the applicant's friend at his post office box would be placed in the box but would not be looked at until someone cleared the post office box. There is no evidence of any error in that regard on the part of the Tribunal.
I have also had regard to the written submissions prepared by the applicant's [sic] solicitor. It is submitted, and correctly in my view, that it was open to the Tribunal to proceed to a hearing under s.426A of the Migration Act after having given the required notice to the applicant at the address which he nominated under s.426 of the Migration Act.
I refer to VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 at 414.
The applicant claims that the Tribunal did not have sufficient evidence to reject his application. That, of course, is an incorrect understanding of the law. I refer to Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73 where at [17] Black CJ, Sundberg and Bennett JJ held that:
As s. 64 and Minister for Immigration & Multicultural & Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259 make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction. In SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225, the Tribunal found that the applicant's claims were at "such a general and vague level that the Tribunal cannot establish the relevant facts" and therefore have made no findings either accepting or rejected the claims.
The Tribunal's approach was upheld by a Full Court at para 15:
It can be seen from the form of s. 651 that it does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision maker was not affirmatively satisfied that the criteria for the visa in question had been satisfied.
See also NAQRvMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1033 at [33] and Applicant A159 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 473. In my view, the Tribunal's decision is based entirely upon its lack of satisfaction as to the applicant's claims, given the Tribunal's findings on the briefly sketched and entirely unsupported nature of those claims. The Tribunal did not reach the state of satisfaction required by s.65 of the Act and that the applicant had satisfied the criterion set out in sub-s.36(2) for a protection visa.
It is well known that applicants who do not attend Tribunal hearings do themselves a great disservice, as was set out in SZDXC vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306, where Healey J at [16] followed NAVX vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, saying:
When the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.
In my view, the sketchy nature of the material and the applicant's failure to attend made it difficult and in fact well nigh impossible for the Tribunal to have sufficient information to be satisfied that the applicant had met the criteria for a protection visa.
There are two other matters to which I will refer briefly. First, in his application the applicant claims that the Court should make
"a declaration that he is a refugee". In my view, that is a factual finding and it is not within the jurisdiction of a Court conducting judicial review of a decision of the Refugee Review Tribunal to make such a finding. Whilst the application for remitting the matter to the Refugee Review Tribunal for further consideration according to law was given as an alternative, it is not an alternative in the sense that the declaration that was sought is one that is not within the power of the Court to make.
The second point that should be made is that in this application, as is often seen in applications, an order was sought that the Tribunal member not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter. It is quite clear that there are no grounds for making such an order. There was no claim of any bias or bad faith on the part of the Tribunal member. One might well ask how could there be when the applicant did not even attend the hearing?
An applicant who does not attend a hearing of the Refugee Review Tribunal but still asks for an order that the application be sent back to the Tribunal to be constituted by another member leaves himself or herself open to the accusation that he or she is merely "forum shopping". It is, in my view, inappropriate in such circumstances for an applicant to seek an order that the particular member should not constitute the Tribunal for any further hearing of his application.
There is no jurisdictional error shown by the applicant. I am mindful of the fact that the applicant is not legally represented. I have read through the decision carefully myself to ascertain whether or not I could discern any suggestion of a jurisdictional error not observed by the applicant or his friend. I cannot discern any jurisdictional error.
As the decision is untainted by jurisdictional error, it is a privative clause decision as defined in s.474 of the Migration Act 1958 (Cth) and it attracts the protection of that section. The application will be dismissed.
There is an application for costs. The solicitor for the respondent Minister estimates those costs at $3,750.00. The applicant says that he has no ability to pay that amount. That may well be so, but that is not of itself a reason why I should not make an order in favour of a successful respondent. The amount sought, $3,750.00, is an amount that is well within the scale provided by the Federal Magistrates Court Rules 2001 and I propose to make that order.
The applicant's inability to pay the sum of $3,750.00 is a matter that should be taken into account in deciding whether he should have time to pay those costs. I propose to allow time to pay. In my view, it would not be unreasonable to allow a period of six months.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date:
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