SZHXS v Minister for Immigration
[2006] FMCA 539
•7 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 539 |
| 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 – applicant a citizen of China claiming a well-founded fear of persecution because of being a practitioner of Falun Gong – where Applicant advised the Tribunal that he did not wish to give oral evidence – merits review – delay – where decision handed down on 3 December 2003 but application under Migration Act not filed until 21 December 2005 – delay more than two years. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1948 (Cth), ss.65, 425, 426A, 474
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
SZGQL v Minister for Immigration & Ors [2006] FMCA 446
M172 v Minister for Immigration & Anor [2004] FMCA 23
SZBBL v Minister for Immigration [2004] FMCA 185
SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779
Moradian v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 81 ALD 565
Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908
Al Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876
| Applicant: | SZHXS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3776 of 2005 |
| Delivered on: | 7 April 2006 |
| Delivered at: | Sydney |
| Hearing date: | 7 April 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Reynolds |
| Solicitors for the Respondent: | Clayton Utz |
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 $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3776 of 2005
| SZHXS |
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 Tribunal made its decision on 6th November and handed down that decision on 3rd December 2003.
The Tribunal affirmed the decision of a delegate of the Minister to refuse the Applicant's application for a protection visa.
Background
The Applicant is a Chinese national who arrived in Australia on
26th December 2002 and applied for a protection (Class XA) visa on 16th January 2003. He claimed to have a well founded fear of persecution on the ground that he was a follower and practitioner of Felan Gong.
After his application was refused, he applied to the Refugee Review Tribunal for review of the delegate's decision. The Court Book shows that the Tribunal wrote to the Applicant at the address of his authorised recipient, a migration agent, on 20th October 2003. The Tribunal told the Applicant that it 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 Thursday
27th November 2003 for the purpose of giving evidence and making submissions about his case. A copy of that letter appears at pages 57 and 58 of the Court Book. Page 59 of the Court Book shows a copy of a response to a hearing invitation received by the Tribunal on
4th November 2003. That document, which came from the Applicant's migration agent, made it clear that the Applicant did not want to come to a hearing and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.
The tribunal’s findings and reasons
The Tribunal's decision appears on pages 66 through to 73 of the Court Book. The Tribunal considered the Applicant's claims but was not satisfied that the information provided was sufficient to satisfy the Tribunal that any of his claims were true. The Tribunal noted at page 71 of the Court Book that:
His claims are nothing more than vague allegations. The Applicant was put on notice that the Tribunal has been unable on the information before it to make a decision in his favour and he has decided not attended to give further evidence in support of his claims. He has also not taken up the opportunity to send new documents or written arguments that may have assisted his application. In such circumstances I am unable to be satisfied that any of his claims are true.
The Tribunal concluded that it was not satisfied that the Applicant had a well founded fear of persecution within the meaning of the Convention and affirmed the decision not to grant a protection visa.
The application for judicial review
The Applicant did not commence proceedings in this Court to review the decision until 21st December 2005. This was more than two years after the decision was made available. In the application the Applicant sets out two grounds. First, he claimed that the Tribunal fell into jurisdictional error in not accepting his factual claims about his practice of Falun Gong. Second, he claimed that the Tribunal fell into jurisdictional error in finding that he had been warned by the police about his practice and had been stood down from his employment as a result.
I am satisfied that those grounds do not establish any jurisdictional error. They are no more than a claim for merits review. It is the function of the administrative decision maker to make factual findings and it is not a function of the Court to conduct a merits review. I refer to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].
The Tribunal was, in my view, correct when it invited the Applicant to attend a hearing under the provisions of s.425 of the Migration Act and within its rights to send that invitation care of the Applicant's migration agent. The migration agent was the Applicant's authorised recipient of documentation. In my view the Tribunal was entitled to rely on the document it had received from the migration agent indicating that the Applicant did not wish to attend a hearing. The Tribunal correctly applied the provisions of s.426A of the Migration Act.
The decisions make it very clear that where a party elects not to attend a hearing of the Tribunal it is hardly surprising if the Tribunal cannot be satisfied that the grounds for a visa have been made out. Section 65 of the Migration Act makes it clear that if the Tribunal is satisfied then the visa must be granted, but if not satisfied, the Tribunal must reject the application for a visa. There are many cases that point out the unwisdom of failing to attend a Tribunal hearing, including NAVX v Minister for Immigration and Multicultural Affairs [2004] FCA 346 at [11], SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [16] and SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195.
In this case the Tribunal was entitled to rely on material in the Applicant's protection visa application as the Applicant had resubmitted his application to the Tribunal in a statement that appears at pages 53 and 54 of the Court Book, where he specifically refers to an relies on his protection visa application. To my mind that is clearly material that falls within the provision of s.424A(3)(b) of the Migration Act. There is no breach of s.424A as a result.
What the Applicant has said and has given evidence about in the witness box is that he was misled or deceived by his migration adviser. He told the Court that the migration adviser told him not to go and said that even though he was aware of a hearing there was no need to go. He admitted that when he found out about the adverse decision he asked his migration agent about going to the Federal Court but the agent told him that he could not assist him in that regard. He expressed dissatisfaction with the advice that he had received from his migration agent and indicated that he would like to complain about the agent but did not know who to go to.
In my view the evidence about the agent, whose name appears as Guo Hua Sui, and whose firm appears to be Vic Cultural Exchange Centre, Suite 316, Dixon House, 413 - 415 Sussex Street, Sydney, raises some concerns about the advice that the Applicant said that he received. I propose to ask the Registrar of the Federal Magistrates Court to forward a copy of this decision to the Migrant Agent's Registration Authority to express the Court's concern about allegations relating to unfortunate advice which the Applicant says that he was given.
I might point out that the Applicant did not raise this material prior to the hearing and there was no opportunity to arrange for copies of any written claim to be served on the migration agent so that he could apply to join the proceedings as a party should he wish to do so.
There are a number of cases where applicants claimed to have been misled by the migration agent and, as a result, of being deprived of the opportunity of attending a hearing before the Refugee Review Tribunal. The question in these cases is whether these circumstances give rise to jurisdictional error.
In my view, and I referred to this in the decision of SZGQL v Minister for Immigration & Ors [2006] FMCA 446, the Court should follow the English decision of Al Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 where Lord Bridge stated at page 898:
These considerations lead me to the conclusion that a party to a dispute, who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his own behalf, cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him.
I note that in a number of cases in this Court consideration has been given to this issue as it has in the Federal Court, and I refer to M172 v Minister for Immigration & Anor [2004] FMCA 23, a decision of Bryant CFM as she then was. SZBBL v Minister for Immigration [2004] FMCA 185, a decision of Driver FM. And a decision of Bennett J in SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 which was an appeal from a decision of the Federal Magistrates Court.
In my view that, except in the event of some exceptional circumstances such as fraud, of which there is no evidence in this case, that there will be no jurisdictional error where there is no defect in the Tribunal's decision-making process. I expressed the view in SZGQL that the approach taken by Bryant CFM in M172 is to be preferred, and that the approach in Al Mehdawi is persuasive and should normally be followed.
I am not of the view that I should apply the approach taken by the Federal Court in Moradian v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 81 ALD 565 as that does not appear to be the preferred view. And I refer to Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908.
The other matter that is clear is that at some stage after the Tribunal's decision was handed down, the Applicant spoke to his agent and had been - about his dissatisfaction with the decision of the Tribunal. Her had been made aware, he said, in cross-examination of the steps to be taken including, he was told, appeal to the Federal Court. His migration agent told him at some time that the agent could not assist him in proceedings in the Federal Court.
In my view the Applicant has not provided a satisfactory explanation of a delay of more than two years in commencing these proceedings. The delay, to my mind, is so great that even if I were otherwise satisfied that the Applicant had established jurisdictional error, I would exercise discretion not to grant relief because of the lengthy and unexplained delay.
In my view, however, the Applicant has not established jurisdictional error on the part of the Refugee Review Tribunal. The Tribunal was entitled to rely on the advice that it had received from the Applicant's migration agent. The Applicant did not wish to attend the hearing. There is no evidence before me to show that the Tribunal had any reason to be at all suspicious of the advice that it had received, and it was entitled to take it at face value.
The Tribunal correctly applied the provisions of s.426A to proceed to make a decision without taking further steps to allow the Applicant to appear before it. I have read through the decision of the Tribunal and I see no jurisdictional error and I note that the grounds claimed by the Applicant do not, in any event, amount to jurisdictional error.
The decision prohibitive clause decision which attracts the protection of s.474 of the Migration Act. The application will be dismissed.
I see no reason why I should not make an order for costs in the circumstances. The Applicant will pay the First Respondent's costs in the sum of $5,000.00. I note the title of the Minister has changed and I will make a formal order to that effect.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 18 April 2006
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