SZHTV v Minister for Immigration

[2007] FMCA 1805

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTV v MINISTER FOR IMMIGRATION [2007] FMCA 1805

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth) ss.422B, 425, 425A, 426A, 441A, 441G

Minister for Immigration and Multicultural and Indigenous Affairs vSZFHC [2006] FCAFC 73
SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110

Applicant: SZHTV

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File number: SYG 3605 of 2005

Judgment of: Barnes FM

Hearing date: 19 October 2007

Delivered at: Sydney

Delivered on: 19 October 2007

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The name of the first respondent be amended to read "Minister for Immigration & Citizenship".

2. The application be dismissed.

3. The applicant pay the costs of the first respondent fixed in the sum of $2,800. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3605 of 2005

SZHTV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 8 November 2005 affirming a decision of delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of the People's Republic of China, arrived in Australia in December 2004 and on 1 February 2005 applied for a protection visa. He claimed to fear persecution because he was a Christian. He elaborated on these claims in a statement accompanying his protection visa application. In particular, he claimed that he had attended an underground church where his father-in-law was the pastor, that the church had been raided by the police and that he and fellow church members had been arrested, detained and tortured.  He claimed that after his release he continued his religious activities and was the subject of more attention from the authorities.

3. The application was refused and the applicant sought review by the Tribunal. In his review application he provided details of his residential address, mobile and fax numbers. He also authorised an adviser to act for him in relation to the application, and provided the name, organisation, address and contact details for his migration agent, who signed the application form. In response to the question as to where he wanted correspondence to be sent about his application he indicated that he wanted all correspondence sent to his adviser whom he nominated as his authorised recipient. I note that the form advises that if a person nominates an authorised recipient the Tribunal will send all correspondence to the authorised recipient and only sends copies of correspondence to applicants who have nominated an authorised recipient where the applicant is in immigration detention. That is not the position in this case. The application for review bears a signature and date in the applicant's declaration form.

4. On 24 August 2005 the Tribunal wrote to the applicant care of his authorised recipient and invited him to a Tribunal hearing at a date, time and place specified. The letter advised that if the applicant did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on the case without further notice. An affidavit of Nicola Johnson sworn on 20 September 2007 and filed on 21 September 2007 annexes a copy of the Tribunal's registered post record for 24 August 2005, which refers to a registered post number the same as that which appears on the copy letter appearing on the Court Book and contains the name and address of the migration agent, consistent with that which appears on the copy letter in the Court Book.

5. In its reasons for decision the Tribunal recorded that no response was received to its letter of 24 August 2005, that that letter was not returned unclaimed and that the Tribunal had checked to ensure that it had been sent to the most recent address of the applicant's authorised recipient provided in writing by the applicant. It had also checked to confirm that the applicant had not left Australia. The Tribunal recorded that the applicant did not appear at the Tribunal on the day, time and place for the scheduled hearing. In those circumstances, pursuant to s.426A of the Migration Act 1958, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. The Tribunal set out the applicant's claims as contained in a statement attached to the protection visa application. It also noted that he had provided to the Tribunal on 7 November 2005 a letter from a pastor of the Chinese Christian Fellowship Centre in Australia which stated that the applicant had been attending church on Sundays since December 2004 and appeared to be a “well-behaved person”, but that no further information had been submitted to the Tribunal about the claims.

7. In its findings and reasons the Tribunal observed that the applicant had made a number of serious claims about his treatment by the Chinese authorities, including a claim that he had been tortured and received a summons to present himself to Court, but that he had not stated when these events occurred, had provided no documentary evidence that he was a Christian or member of a church in China, no medical evidence of his ill-treatment and no copy of the summons. Nor had he explained how, if he was of interest to the authorities, he was able to leave China on his own passport. It noted that apart from the letter from the pastor, no further information had been submitted to the Tribunal. It addressed the letter from the pastor, finding that the applicant's “mere presence at a church here is not sufficient to satisfy me that he is a Christian”.

8. The Tribunal found that the applicant's claims (to have been a member of a church in China and to have been harmed as a result) amounted to no more than a series of unsupported assertions and that without more information it was unable to establish the relevant facts. Hence it was not satisfied that the applicant had a well-founded fear of Convention-related persecution and that he was a person to whom Australia has protection obligations.

9. The applicant sought review by application filed in this Court on 8 December 2005. The first ground in the application is a claim that he was born in China and came to Australia on a specified date, that he had had a bad life in China due to his religion and could not have freedom of belief and had to leave China to seek protection. It recites that his protection visa application was refused. Such a ground does not allege or establish jurisdictional error, but rather sets out the background to the applicant's claims and proceedings. It does not identify any error in the decision or procedures of the Tribunal.

10. Ground 2 of the application is that the decision made by the Tribunal was not fair. It is also claimed that the applicant could not go back to China as he would face a real chance of persecution and serious harm. Insofar as he takes issue with the merits of the Tribunal decision, merits review is not available in this Court. However, the applicant clarified his claim that the decision was not fair by indicating that while he applied for review he did not have a chance to have a hearing. The ground continues:

    They called me, but I didn't receive any letter on my home address.  I also provided the statement from Chinese Christian Fellowship Centre to RRT before the decision. 

11. Insofar as the applicant takes issue with the Tribunal treatment of the statement from the Chinese Christian Fellowship Centre, no jurisdictional error is established. The applicant does not identify any claimed error in the manner in which the Tribunal dealt with the document. The Tribunal clearly considered the letter and its contents, but was not persuaded that the applicant's mere presence at a church here was sufficient to satisfy it that he was a Christian. No jurisdictional error is revealed in the manner in which it dealt with that letter.

12. It emerged in oral submissions from the applicant that part of his contention was that he was still expecting to be invited to a Tribunal hearing as at 7 November 2005, which was the date on which he provided a copy of that letter to the Tribunal. He reiterated on a number of occasions that he did not receive the Tribunal invitation to the hearing. I note in that respect that there was no suggestion from the applicant of any fraud or misconduct on the part of his migration agent. Rather, he appeared to appreciate that a letter, if sent, would be sent to his migration agent, but contended that the migration agent had not received any such letter. He took issue with the fact that despite the fact that he had provided contact details to the Tribunal, the Tribunal did not take any steps to telephone him or otherwise contact him when he failed to appear at the scheduled Tribunal hearing.

13. There are a number of points to make in relation to these claims. First, there is nothing in the material before the Court to establish that the Tribunal failed to comply with its obligations under the Migration Act in relation to inviting the applicant to appear before it to give evidence and present arguments as required under s.425 of the Act. The Tribunal wrote to the applicant care of his migration agent, consistent with the information and request that he had provided in the application for review, inviting him to a hearing on 14 October 2005. It did so by letter dated 24 August 2005 sent by registered post on that date as evidenced by the Tribunal’s registered post records annexed to the affidavit of Nicola Johnson sworn on 20 September 2007. In light of the provisions of s.441A of the Act, in particular sub-s.(4), and s.441G(2) of the Act, there is nothing to establish that the Tribunal failed to meet its obligations to invite the applicant to a hearing.

14. The hearing invitation letter met the statutory requirements as to the prescribed period of notice (see s. 425A and Reg 4.35D). It was dispatched by prepaid post to the applicant's authorised recipient at the last address for service provided to the Tribunal consistent with s.441A(4). Indeed the applicant does not suggest, nor is it apparent, that the invitation failed to comply with the statutory requirements in s.425(1) and 425A of the Act, having regard also to reg.4.35D. Nor is it in issue that no response to that invitation was received by the Tribunal.

15. Section 426A of the Act provides that if an applicant is invited under s.425 to appear and does not do so, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. As contended for the first respondent, as the Tribunal had met its obligations under the Migration Act it was entitled to make a decision on the review, as it did, without taking any further action to allow or enable the applicant to appear before it.

16. As submitted for the first respondent, the fact that the applicant claimed not to have actually received a hearing invitation did not establish a jurisdictional error. In SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 (which related to late receipt of a hearing invitation) it was held that in such circumstances no want of procedural fairness was established and that compliance with the statutory regimes in ss.425, 425A and 441G satisfied the requirements of procedural fairness to an applicant under s.422B of the Act.

17. In relation to the claim that the Tribunal was under an obligation to endeavour to communicate with the applicant in some way if he failed to attend the hearing, again no authority was cited, in  Minister for Immigration and Multicultural and Indigenous Affairs vSZFHC [2006] FCAFC 73 the Full Court stated at [39]:

    Having complied with one of the methods prescribed in s.425A (in fact two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant. 

18. Thus, while the applicant's concern is understandable, these circumstances do not establish a jurisdictional error on the part of the Tribunal, whether consisting of a failure to comply with the procedures of the Migration Act or arising by way of a lack of procedural fairness or otherwise. The Court does not have a discretion on humanitarian or other grounds to remit a matter to the Tribunal for reconsideration in the circumstances raised before it. That is a matter which the applicant would have to take up with the Minister for Immigration.

19. Ground 3 of the application reiterates the applicant's claim that he cannot return to China. It does not establish a jurisdictional error. As no jurisdictional error has been established, the application must be dismissed. It is also appropriate to amend the name of the first respondent, as is sought.

20. As the applicant has been unsuccessful he should meet the costs of the first respondent. The amount of $2,800, which is sought, is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: