SZHVW v Minister for Immigration
[2006] FMCA 567
•29 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHVW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 567 |
| 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. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.426A, 474 |
| Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1679 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1426 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 |
| Applicant: | SZHVW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3700 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 January 2006 |
| Date of Last Submission: | 29 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms Mason |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
I note the title of the First Respondent has 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 $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3700 of 2006
| SZHVW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL 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 applicant is a citizen of the People's Republic of China who arrived in Australian on 23rd January 2005. On 2nd March 2005 he applied for a protection (class XA) visa. That application was refused on 16th July and on 15th August 2005 the applicant applied to the Refugee Review Tribunal for a review of that decision.
On 8th September 2005 the Refugee Review Tribunal wrote to the applicant. That letter said in part
The Tribunal has considered the material before it in relation to your application, but is unable to make a decision in your favour on this information alone.
The letter went on to invite the applicant to attend a hearing to be held on Monday, 31st October 2005.
The applicant did not attend the hearing and appears not to have acknowledged the invitation to the hearing. The applicant has told the Court that he was very frightened because officers from the Department of Immigration & Multicultural Affairs had been around to his house looking for him and he dared not attend the hearing.
When the hearing was scheduled to take place on 31st October 2005 the Tribunal noted that the applicant had not attended and had not contacted the Tribunal to explain why he was unable to attend.
In accordance with s.426A of the Migration Act the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The Tribunal considered the material that it had. The applicant claimed to be a member of a party in China called the Democratic Party and that he was an active member of that party. The Party was classified as an illegal Party in 1999 by the Chinese Government and they launched a crackdown on the Democratic Party in January 2004. The applicant claimed that the police would start investigating him and he obtained a passport and left the country. He claimed a fear of imprisonment if he were to return.
Whilst the Tribunal was satisfied that the applicant was a citizen of China who was outside that country, the Tribunal was critical of the applicant's case, being described as
a series of vague and general claims which lack in details.
See page 75 of the Court book.
The Tribunal member went on to say at page 75
Without further details, clarifications and/or corroborative evidence or the opportunity to explore with the applicant the claims at a hearing the Tribunal is not satisfied that the applicant was ever a member of the Democratic Party or that he was ever involved in any activities relating to the party, including but not limited to any promotional activities nor is the Tribunal satisfied that the applicant was ever suspected by the Chinese authorities of being a member of that Party.
The Tribunal, in short, was not satisfied that the applicant had a
well-founded fear or persecution for a Convention related reason.
The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa.
The applicant sought judicial review of that decision in this Court under the provisions of s.39B of the Judiciary Act 1903. He claims that the Tribunal failed to carry out its statutory duty. He seeks to rely on the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.
In effect, he claims a breach of s.424A of the Migration Act in that he claims that the Tribunal did not provide particulars of the information that was the reason or part of the reason for affirming the decision.
He also sought to rely on the decision in Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2002) 110 FCR 27. Basically, the applicant's case is that the Tribunal based its findings on the information or lack of information contained in the applicant's application for a visa and was required by s.424A to give particulars of that information, explain why it was relevant and provide the applicant with an opportunity to comment on it. He claims that the Tribunal's failure to act in this way was a jurisdictional error.
The fact is that the Tribunal informed the applicant by means of its letter inviting him to attend the hearing on 8th September 2005 that it had considered all the material before it relating to the application, but was unable to make a favourable decision on that information alone. For that reason the Tribunal invited the applicant to attend a hearing, which the applicant chose not to do.
The applicant was on notice that the Tribunal did not have enough information to make a favourable decision. By not attending the hearing and not providing any more information the applicant did not give the Tribunal any opportunity to make a favourable decision. It is up to the applicant to provide the information necessary to satisfy the Tribunal that he or she meets the criteria to be given a visa. Section 65 of the Migration Act makes this clear.
It is equally clear from the Tribunal's decision that the lack of information was the reason why the Tribunal did not grant his application. The applicant knew that. The applicant knew that the Tribunal did not have enough information because the Tribunal wrote to him before the hearing and said just that. If the applicant chooses not to attend the hearing and not to provide any more information that situation is not going to change.
In my view, the applicant's claim for a breach of s.424A of the Migration Act as set out in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (supra) and also Minister for Immigration & Multicultural Affairs v Al Shamry (supra) is, as counsel for the respondent Minister submits, entirely misconceived.
I am referred to the decision of SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1426, which is a decision of the learned Chief Federal Magistrate in a case where no
s.424A letter had been sent to the applicant, but his Honour noted that that was not indicative of error pursuant to SAAP because the decision of the Tribunal was not based on information falling within s.424A. The decision was based on the fact that it was not satisfied as to elements of the applicant's claims as a result of the lack of specificity provided by the applicant. His Honour referred to the decision of Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1679 at [25].
Counsel for the respondent Minister submits, and I believe correctly, that the Tribunal did not make a decision based upon the substance of the applicant's claims. Whilst I am referred to an alternative submission in my view it is unnecessary to consider that.
In my view, this is a case where the findings of the Full Court in
NAST v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 208 are appropriate. Their Honours noted at 4 and 5 that
In its reasons for decision the RRT listed a number of significant matters about which the RRT would wish to satisfy itself at a hearing.
The primary Judge held correctly that it was
in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters. In its reasons for decision the RRT said that in view of the first appellant's failure to attend the hearing the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason).
As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh it was bound to affirm the decision of the Minister's delegate to refuse to grant to the first appellant a protection visa.
In my view the decision in NAST (supra) is on point and it is quite clearly binding on this Court accordingly, I propose to follow it.
There are many decisions by the Federal Court relating to the
non-attendance by an applicant, the Refugee Review Tribunal. I refer to the Full Court decision in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] where rejection of the applicant's case was described as an inevitable consequence of the applicant's failure to attend.
I refer also to the decision of Bennett J in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811. In that case her Honour looked at s. 426A in the light of the findings of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs and her Honour looked at the interaction between
s.424A and s.426A and the circumstances of non-attendance at the hearing. Her Honour said at 16
By not attending the hearing the applicant has, in effect, waived his opportunity to provide further comment on adverse information (Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82.
In my view, by not attending the hearing the applicant waived his opportunity to provide further information to the Tribunal, which may or may not have made a difference to his application. He was on notice, indeed it had been made “pellucidly clear” in the Tribunal's letter to quote the decision of Hely J in SZDXC v Minister for Immigration & Multicultural Affairs [2005] FCA 1306 that the Tribunal did not have enough information to grant his application. By not attending he ensured that that situation stayed the same.
I have read through the decision thoroughly. I am satisfied that there is no jurisdictional error that I can discern.
There is an application for costs; I see no reason to depart from the rule that the unsuccessful applicant should pay the first respondent's costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 19 April 2006
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