SZHUT v Minister for Immigration

Case •

[2006] FMCA 447

•

6 March 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHUT v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 447
MIGRATION - Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend Tribunal hearing – failure by the applicant’s friend to advise the RRT of his change of address does not constitute a jurisdictional error on the part of the Tribunal – inadequacy of an applicant’s claims is not information for the purpose of s.424A.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A, 474

SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 followed

VAF v Multicultural and Indigenous Affairs (2004) 206 ALR 471
NADK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184
MZWOD v Minister for Immigration [2005] FMCA 386
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1474

Applicant: SZHUT
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 3653 of 2005
Delivered on: 6 March 2006
Delivered at: Sydney
Hearing date: 6 March 2006
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Mitchell
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.

  3. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3653 of 2005

SZHUT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 20th October and handed down on 8th November 2005. The tribunal affirmed the decision of delegate of the Minister not to grant a protection visa to the Applicant.

Background

  1. The Applicant is a citizen of the People's Republic of China who arrived in Australia on 20th January 2005. On 3rd March of that year he lodged an application for a protection (Class XA) visa. The application was refused on 11th June 2005 so on 28th June he applied to the Refugee Review Tribunal for a review of that decision.

  2. The Tribunal wrote to the Applicant on 24th August 2005. The letter said that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in the Applicant's favour on that information alone.  Accordingly the Tribunal invited the Applicant to attend a hearing at 9:00am on Thursday 20th October 2005 so that he could give oral evidence and present arguments in support of his claims.

  3. The Applicant did not attend the hearing. The Tribunal noted that the letter to the Applicant was not returned unclaimed. The Tribunal exercised its power under s.426A of the Migration Act to proceed to make a decision on the review without taking any further action to enable the Applicant to appeal.

The Tribunal’s findings and reasons

  1. The Tribunal considered the material before it including a copy of the Applicant's passport. The Tribunal found that the Applicant was a national of the People's Republic of China. It noted, however, that he had provided very little detail about the difficulties he faced which led to his departure from China. The Tribunal noted that the Applicant had provided no documentary evidence in support of his claims.

  2. The Tribunal went on to note that the Applicant had made a number of assertions unsupported by detail or documentary evidence. The Tribunal said at page 63 of the Court Book: 

    "Without more I am unable to establish the relevant facts." 

  3. The Tribunal was not satisfied on the evidence before it that the Applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.

The application for judicial review

  1. The Applicant commenced proceedings in this Court by means of an application filed on 13th December 2005. He provided two grounds for his application.

  2. First, that the Tribunal failed to give the Applicant information that the Tribunal considered would be the reason or a part of the reason for affirming the decision that was under review. In short, the Applicant complained that the Tribunal breached s.424A (1) of the Migration Act. The particulars of this claim are as follows:

    "The Tribunal states, on page 5 of the decision record that the Applicant has provided very little detail about the difficulties he faced which led to his departure from China. The Applicant claims that the Tribunal should invite him to provide such information in details." 

  3. It is quite clear that this ground of review must fail. The reason for the Tribunal decision was the inadequacy of the material provided to the Tribunal. Because the material was inadequate the Tribunal could not be satisfied as required by s.65 of the Migration Act. Inadequacy of an applicant's claim is not information for the purpose of s.424A. I refer to SZEZI & Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195. A comment that information is inadequate is no more than a subjective appraisal by the Tribunal about the material provided. A subjective appraisal of the material does not constitute information for the purpose of s.424A. I refer to VAF v Multicultural and Indigenous Affairs (2004) 206 ALR 471.

  4. The other ground for review was that the Tribunal failed to invite the Applicant to appear before the Tribunal. By failing to do so the Tribunal breached sub-s.425(1) of the Migration Act 1958.  The particular of this claim is:

    "The Tribunal claims that it wrote to the Applicant on 25 August 2005 inviting you to appear before the Tribunal. The Applicant claims he was unaware of such invitation." 

  5. The Respondent submits, and I believe correctly, that no error was shown on the part of the Refugee Review Tribunal. The Applicant told the Court that he had used his friend's address as his address for correspondence. The friend moved his address and did not tell the Applicant, let alone telling the Refugee Review Tribunal. By the time the Applicant found about this and went to collect his mail the hearing had already been heard. It is clear that the Tribunal forwarded the invitation to hearing to the Applicant's address for service. Accordingly, the Tribunal has complied with s.441A. There can be no jurisdictional error based merely on the Applicant's failure to receive notice. (See NADK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184).

  6. I note that Riethmuller FM considered a similar situation in MZWOD v Minister for Immigration [2005] FMCA 386. His Honour also referred to the decision in NADK v Minister for Immigration and Multicultural and Indigenous Affairs and also VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1474. In that case the Court considered the matter almost identical in its facts to the situation in NADK.

  7. At paragraph 16 of his Honour's decision he says quoting paragraph 43 in the Respondent's submissions in MZWOD: 

    "However, it matters not whether the Applicant was or was not using the address.  Actual notice of the invitation is not required and the onus to advise of change details rests with the Applicant.  By virtue of s.441C (4) the Applicant is taken to have received the document seven working days after the date it bears." 

  8. It appears that the Applicant has been badly let down by his friend whose address he used as an address for correspondence. As a result the Applicant missed receiving the letter by the Tribunal inviting him to attend the Tribunal hearing.  The fact that he missed receiving that letter meant that he did not attend the hearing and without his attendance and evidence the Tribunal did not have sufficient evidence upon which it could be satisfied that the Applicant met the criteria for a protection visa.

  9. It should be noted that it is all too common for applicants not to attend hearings of the Refugee Review Tribunal. The letter under s.425 sent to applicants by the Tribunal inviting them to a hearing makes it very clear that the Tribunal has considered the evidence in support of the Applicant's case and does not think it is sufficient. That is why the Applicant is invited to a hearing by the Tribunal. Where the Applicant does not attend the Tribunal hearing it is more than likely that the application will be unsuccessful because of the lack of material. That is what happened in this case.

  10. The Applicant's claims of jurisdictional error are not sustained. I note that the Applicant is not legally represented in these proceedings.


    I have read through the Tribunal decision myself and made my own independent examination of it. I am unable to discern any jurisdictional error not referred to by the Applicant. I am satisfied that the decision is a privative clause decision as set out in s.474 of the Migration Act and it is therefore protected by that section. As there is no jurisdictional error the application must be dismissed with costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  31 March 2006

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