SZHTF v Minister for Immigration - [2006] FMCA 1832

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTF v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1832

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People's Republic of China – applicant claims fear of persecution on the basis of his adherence to Falun Gong – where applicant did not attend Tribunal hearing – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958, ss.425, 426A, 474

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 719
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1774

Applicant:

SZHTF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3564 of 2005

Judgment of:

Scarlett FM

Hearing date:

4 December 2006

Date of Last Submission:

4 December 2006

Delivered at:

Sydney

Delivered on:

4 December 2006

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondents:

Phillips Fox

ORDERS

The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3564 of 2005

SZHTF

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 affirming a decision of a Delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on

17^th November 2005. The Tribunal affirmed a decision of a Delegate of the Minister not to grant the applicant a protection visa.

The applicant seeks an order setting aside the decision of the Refugee Review Tribunal and a declaration that he is a Refugee.
The applicant is a citizen of the People's Republic of China, who arrived in Australia on 20^th January 2005. He applied for a protection (class XA) visa on 17^th February 2005, claiming a well-founded fear of persecution on the basis of his adherence to Falun Gong but it was refused on 16^th July that year. He then applied to the Refugee Review Tribunal for review of that decision.
The applicant lodged his application for review at the Sydney Registry of the Refugee Review Tribunal on 8^th August 2005. The applicant did not lodge any other documents with his application. In the application he gave his home address and nominated a post office box number in a suburb of Sydney a considerable distance from the suburb in which he lived, as his mailing address. He did not provide any telephone number in his application, nor did he nominate any person as his adviser.
The Tribunal wrote to the applicant at his nominated address for correspondence on 8^th September 2005, advising him that he 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 invited the applicant to attend a hearing on 24^th October 2005. The Tribunal did not receive any response to the hearing invitation. The applicant had not provided any telephone number upon which he could be contacted. The applicant did not attend the Tribunal hearing on the scheduled date. The Tribunal decided to use its power under s.426A of the Migration Act to make its decision on the review without taking any further action to allow the applicant to appear before it.
The Tribunal signed the decision record on 25^th October 2005 and handed the decision down on 17^th November affirming the decision of the Delegate not to grant the applicant a protection visa. The Tribunal, in its findings and reasons, which are set out at pp.72 and 73 of the Court Book, was satisfied that the applicant was a citizen of China. The Tribunal noted that the applicant had made a series of "vague and general claims which lacked details".[1] The Tribunal went on to note that the applicant had not provided any corroborative evidence to support his claims. The Tribunal stated that:
Without further details, clarifications and/or corroborative evidence, or the opportunity to explore with the applicant his claims at a hearing, the Tribunal is not satisfied that the applicant is a Falun Gong practitioner, nor is the Tribunal satisfied that he ever was involved in any Falun Gong activities.[2]
[1] See Court book at 72
[2] See Court Book at 73
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 found that the applicant did not satisfy the criterion as set out in sub-s.36(2) of the Migration Act for a protection visa. The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant filed an application at this Court on 5^th December 2005, along with an affidavit. He filed an amended application on 11^th April 2006. In the amended application the applicant set out these grounds;
1.DIMIA officer simply made an unfair policy rather than looked at new fact.
2.RRT just reported the policies and regulations that listed in the law book, while did not seek any grounds for making decisions.
3.RRT did not think my English problem. I lost the chance for hearing due to I did not understand the letter that RRT gives me so the decision is unfair.
4.I believe the RRT had jurisdictional errors and DIMIA abused delegate power under the Migration Act 1958.
The application was originally listed for hearing before another Federal Magistrate on 26^th September 2007. The application was transferred into my docket and on 17^th October 2006. The Court wrote to the applicant at the address for service in a notice of change of address for service which he had filed on 11^th April 2006 simultaneously with his amended application. The applicant attended the hearing and told the Court that he was not in Sydney at the time that the letter was sent out. When his friend passed on the letter to him it was too late to attend the hearing. The applicant said that he had been living in Canberra.

The applicant has not filed any written outline of submissions.
The solicitors for the Minister filed an outline of submissions in which they claim that the applicant has not raised any viable ground for judicial review. As the applicant did not attend the RRT hearing, despite being properly invited under s.425 of the Migration Act, it was hardly surprising that the RRT found that it could not be satisfied that the applicant's claims were true. The Minister's solicitors went on to submit that the Full Court of the Federal Court has concluded that a legislative regime that required a positive state of satisfaction as to whether protection obligations are owed, mandated a refusal decision if that state of satisfaction were not reached (see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). The Minister's solicitors went on to submit that the only evidence of the applicant's claims was the statement he had provided with his protection visa application. As he had not attended the hearing or provided any other detail or supporting evidence, the Tribunal could not be satisfied that his claims were true. Thus, a refusal decision was mandated.
In addition, it is submitted that there was no error in the way the Tribunal invited the applicant to a hearing. It was under no obligation to write the letter of invitation in any other language but English.

The Tribunal, it is submitted, fulfilled its requirements under s.425 of the Act. It was further submitted that there was no jurisdictional error in the Tribunal's decision so it is a privative clause decision.

Those submissions are correct and they accurately set out the state of the law.
The applicant today has given a different explanation for his failure to appear, namely that he was not living in Sydney at the time and that he had given as his address for correspondence the post office box number of a friend. I have had occasions to comment on two occasions this morning when dealing with the first Court date list that applicants must give an address, whether it is to the Court or the Refugee Review Tribunal, hat is a reliable address so that they can receive communications. Clearly this was not the case.
It is most unfortunate that the applicant has not had the opportunity to attend the Tribunal hearing. Unfortunately where applicants do not attend the hearing of the Tribunal, they lose the chance to give evidence and present arguments which may persuade the Tribunal to make a decision in their favour. It should be recalled that under s.425 of the Migration Act the Tribunal has the obligation to invite an applicant to a hearing when it is not satisfied on the information before it that it can make a decision in the applicant's favour. In those circumstances where the applicant is invited to a hearing and neither attends the hearing to give evidence or submits any further documentary evidence, it is hardly surprising if the application is unsuccessful. This situation has been referred to in a number of decisions on appeal from this Court, including SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1774 and SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 719.
I am aware of the fact that the applicant is not legally represented.
My own reading of the material does not show any jurisdictional error. It follows that the decision is a privative clause decision as defined in s.474 of the Migration Act and the application will be dismissed with costs.
I propose to order that the title of the first respondent is changed to Minister for Immigration and Multicultural and I will order that the application is dismissed. I will order that the applicant is to pay the first respondent's costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 7 December 2006