SZHSV v Minister for Immigration

[2006] FMCA 1112

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHSV v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1112

MIGRATION – RRT decision – Chinese Falun Gong practitioner – did not attend Tribunal hearing – denied awareness of invitation – Tribunal entitled to proceed without a hearing – no error found.

Evidence Act1995 (Cth)

Migration Act 1958 (Cth), ss.25A(3), 48A, 160, 160(1), 417, 425, 425A, 426A, 426A(1)(a), 441A, 483A

Migration Regulations 1994 (Cth), r.5.03

Joshi v Minister for Immigration (2001) 116 FCR 87
Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64
Minister for Immigration & Multicultural & Indigenous Affairsv SZFHC [2006] FCAFC 73
SZDPB v Minister for Immigration & Multicultural Affairs [2006] FCAFC 110
VNAA v Minister for Immigration (2004) 136 FCR 407

Applicant: SZHSV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3543 of 2005

Judgment of: Smith FM

Hearing date: 25 July 2006

Delivered at: Sydney

Delivered on: 25 July 2006

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the First Respondent: Ms McNaughton

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3543 of 2005

SZHSV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 30 November 2005 under s.483A of the Migration Act 1958 (Cth), which seeks orders setting aside a decision of the Refugee Review Tribunal handed down on 24 October 2001. The Tribunal affirmed the decision of a delegate dated 24 October 2000 refusing to grant a protection visa to the applicant.

2. The applicant was held in immigration detention at the time of filing his application, but he was subsequently released in the course of the proceeding.  His case has been listed at two previous directions hearings, and he has been given an opportunity to file an amended application with further evidence after receiving a bundle of relevant documents and a referral for free legal advise.  However, he has not filed any further documents, whether by way of amended application or evidence, and has appeared today without assistance.

3. He filed no evidence explaining the delay between the handing down of the Tribunal's decision in 2001 and his commencing proceedings in this Court after being taken into detention in 2005.  This unexplained delay could provide the Court with a discretionary reason for refusing relief, even if jurisdictional error were found in the procedures or reasoning of the Tribunal.  However, for reasons which will appear, I have not felt it necessary to explore the delay with the applicant by inviting him to give oral evidence explaining it, and I have not needed to hear submissions from the parties on that issue.

4. By reasons of the provisions of Part 8 of the Migration Act, the Court does not have power to give the relief sought by the applicant, unless it is satisfied that the Tribunal's decision was affected by jurisdictional error. In the present case I have not been so satisfied, and that is the reason why I am obliged to dismiss this case. As I have indicated to the applicant, I do not have power myself to decide whether he qualifies as a refugee. I also do not have power to direct the Minister to exercise discretionary powers, such as are found in s.417 or s.48A of the Migration Act, to allow the applicant a second opportunity to apply for protection or to be granted a visa notwithstanding the unfavourable Tribunal decision. It is a matter purely for the Minister's discretion as to whether those powers are to be exercised or not.

5. The applicant arrived in Australia in September 2000, and a protection visa application was lodged on 4 October 2000. Neither this application, nor his subsequent applications disclosed the persons who assisted him, and at no time did he appoint an agent for receiving correspondence from the Department or the Tribunal.  In his visa application he gave an address for correspondence, being a residential address at Merrylands which the applicant today confirmed was where he was living at the time.

6. His reasons for seeking protection in Australia against return to China were set out in the form in very general terms.  He claimed he had been a Falun Gong leader in his location, and to have “organised groups of Falun Gong members to practise and challenge the unfair treatment of our fellow believers.  As a result I was detained on three occasions.  The last time soon after release, I was wanted.”  He expressed a fear that he would be arrested, tortured and imprisoned as he returned to China.  No details of these events was ever given to the Department. 

7. A delegate refused his application on 24 October 2000, giving reasons which drew attention to a concern as to the truth of his claims in the light of the fact that he had been able to depart from China legally. 

8. In his application to the Tribunal lodged on 28 October 2000 the applicant said:

   My disagreement statement will follow in the mail.  In short, the refusal decision is perfunctory and unfair.  I do request a proper hearing in due course.  I also need time to present my case.

   However, no further details were ever sent to the Tribunal.

9. The application form did not identify an advisor authorised to act for the applicant, and gave the same home address at Merrylands as the applicant's address for service.  The applicant today recognised his signature on that form, but claimed that it had been completed by "my agent", and that he was unaware of what that agent was doing to help him.  However, the Tribunal at no time communicated with any agent, nor was it given any notice that there was any agent helping the applicant.

10. A letter on the file dated 29 January 2001 is addressed to the applicant at his home address at Merrylands.  It said:

    The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.  You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims.  You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.

11. The letter told the applicant that if he wanted to come to a hearing it would be on 12 April 2001 at 1 pm.  The letter warned the applicant that if he did not attend, and a postponement had not been granted, the Tribunal might make a decision on his case without further notice.

12. The Tribunal said that the applicant did not attend the hearing, and that, pursuant to s.426A of the Act, it decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

13. At the time that this letter was sent, the obligation on the Tribunal to send an invitation to a hearing was in s.425 in its present form, and the consequences of a failure to attend were then found, as now, in s.426A. The requirements as to a notice of invitation were found in s.425A in slightly different terms. At that time, the method of giving notices was not found in s.441A and the subsequent provisions of Division 7A of Part 7, but was entirely in the Regulations. Regulation 4.35D prescribed the minimum period of notice to be contained in an invitation as 14 days after the date of receipt of the invitation. Regulation 4.41 provided that a document required to be given to a person could be given by posting to that person at their address for service or to “his or her last-known place of residence”.

14. Regulation 5.03 at that time deeming receipt of a letter at the address to which it was sent seven days after the date of the document, if the document had been sent within three days after the date of the document.  This regulation was held by Emmett J to have been saved from the invalidity which was found in an earlier form (see Joshi v Minister for Immigration (2001) 116 FCR 87 at [50]).

15. The above regulations, including reg.5.03, would have justified the Tribunal proceeding under s.426A(1) in the absence of the applicant, if I were satisfied that the letter had been posted within three days of

    
    

    29 January 2001. 

16. No direct evidence of the date of posting is in the material before me, but since this issue was first raised at the hearing I would draw no inference from the absence of such evidence.  The letter itself on the file bears a handwritten annotation, from which I am ready to infer that the letter was given a registered post number, and that it was probably posted by registered post at some date within a reasonable period after the date appearing on it, 29 January 2001.  However, absent further evidence I would not conclude that it was necessarily posted within three days of that date.

17. Perhaps this inference might be drawn, by noting that the Tribunal satisfied itself that it did have power under s.426A, and presuming that it was able to satisfy itself as to posting at a date allowing the deemed receipt provision of reg 5.03 to be satisfied. The applicant has not presented evidence that this was not so.

18. In any event, I consider that, even if I were not so satisfied in terms of reg.5.03 on the balance of probabilities, the provisions of the Evidence Act1995 (Cth) would allow me to apply a presumption of receipt on the fourth working day after the posting of the letter; see s.160(1). That presumption applies “unless evidence sufficient to raise doubt about the presumption is educed”. 

19. In the present case, I have found above that the letter was probably posted within days after 29 January 2001. The applicant’s unsworn evidence honestly admitted that the period of time since January 2001 was too great for him to be able to remember whether he actually received this letter at his home address. He said it was possible that he had, but that in any event if the letter arrived it was unlikely that he would have understood it, since neither he nor the person in whose house he was staying read English. Assuming that evidence would be given, if necessary, under oath and should be accepted, it would not provide sufficient evidence to overcome the presumption under s.160 that the applicant received the letter of invitation on a date amply allowing 14 days’ notice of the April hearing date. On that basis, I find that the letter was in fact received in sufficient time to comply with the prescribed period of notice requirement of s.425A(3), so that the precondition to the power under s.426A(1)(a), has been met, i.e. that the applicant had been “invited under s 425A(2) to appear before the Tribunal”.

20. In my opinion, therefore, the Tribunal had the power under s.426A(1) to make its decision on the review without taking further action to enable the applicant to appear before it.

21. The applicant's present evidence denying actual awareness of the hearing, and seeking to blame his agent for his lack of knowledge, could not avail him in showing that the Tribunal lacked authority to proceed under s.426A (see VNAA v Minister for Immigration (2004) 136 FCR 407 at [14-5], Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64,Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39], SZDPB v Minister for Immigration & Multicultural Affairs [2006] FCAFC 110 at [17]).

22. In its reasons, the Tribunal briefly identified the applicant's claims in his protection visa application, and explained why it affirmed the delegate's decision:

    The applicant’s claims are so general and lacking in detail that the Tribunal is unable to establish the relevant facts.  There is scant information on what he did in China.  There is no information on when he joined the group.  The Tribunal would have asked him about his beliefs and whether he practised Falun Gong in Australia where is free to do so.  If so, the Tribunal would have asked him is he had any evidence of his activities in Australia.  There is no information about his activities in Australia or supporting photos.

    The Tribunal is not satisfied on the information before it that the application is a member of the Falun Gong.  If he had attended the Tribunal would have asked him to show some of his practice and to discuss his understanding of the sect/religion. The Tribunal would have asked about how he organised the demonstrations.  The applicant has given no details about how he was arrested and in what circumstances.  The applicant has not explained how he was released and why the authorities released him. 

    The Tribunal would have asked him how he got the security clearances for his passport which appears to be in his name if he was wanted by the authorities.  The Tribunal is not satisfied that there is an evidence to support his claims that he is wanted.

    The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.

23. In short, the Tribunal thought that the information he had given was so "scant" as to prevent it being satisfied that he had a well founded fear of persecution.

24. I can see no error in the Tribunal's reasoning in that manner nor generally affecting its decision which could be characterised as jurisdictional error.

25. The Applicant's application, to the extent that it addressed the Tribunal's decision, said:

    The Tribunal (RRT) relied crucially upon advice by it from the Immigration Department case officer.

26. However, as I have explained above, the Tribunal did identify for itself the applicant's claims, and I consider that it did apply its own mind to considering whether it was satisfied that he was a refugee. 

27. The applicant did not raise any other argument, either in an amended application, written submissions or oral submissions, pointing to any other ground of jurisdictional error. 

28. His request to me was to make an order that would allow him to stay in Australia and be given a second chance to persuade the Tribunal.  However, as I have explained to him I do not have that power unless I can find jurisdictional error affecting the Tribunal's decision.  For the reasons I have given above I have not been able to do that, and I must therefore dismiss the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  7 August 2006