SZHYI v Minister for Immigration
[2006] FMCA 315
•3 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHYI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 315 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of application as not disclosing an arguable case – s.424A of the Migration Act 1958 (Cth) not breached where the RRT decision based upon an insufficiency of supportive information. |
| Federal Magistrates Court Rules 2001 (Cth) Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425 |
| MZWPK v Minister for Immigration [2005] FCA 1256 SZBCS v Minister for Immigration [2005] FCA 1457 SZEEU v Minister for Immigration [2006] FCAFC 2 SZEGX v Minister for Immigration [2006] FCA 166 SZEIQ v Minister for Immigration [2005] FCA 1801 SZEZI v Minister for Immigration [2005] FCA 1195 |
| Applicant: | SZHYI |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3811 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 3 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms C Gray Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3811 of 2005
| SZHYI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application for orders to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was handed down on 22 November 2005. The application for review of it was made on 22 December 2005. The applicant asserted notification of the decision on 1 December 2005. That assertion is not disputed. On that basis I find that the application was made within time. The matter came before me on a first court date on 30 January 2006. At that time it was not clear to me whether the application disclosed an arguable case.
I therefore ordered a hearing today on that issue pursuant to rule 44.12 of the Federal Magistrates Court Rules2001 (Cth) (“the Federal Magistrates Court Rules”).
I made other orders giving the applicant the opportunity to amend her application and to file further affidavits. No further affidavits have been filed. However, two amended applications have been filed.
An amended application was filed on 13 February 2006 that sets out two grounds, the first being an asserted failure to give natural justice and the second being an allegation of bias. The particulars are that the only information before the RRT was contained in the first respondent's file and that given to the RRT by the applicant. Secondly, the RRT is said to have based its findings on the information, or lack of information, contained in the application for a visa. Thirdly, the applicant asserts that she is a Falun Gong practitioner, including since she arrived in Australia. Finally, the applicant asserts that she did not attend the hearing scheduled before the RRT because she did not understand English and missed the date for the hearing.
It is difficult to discern from the particulars what failure of natural justice there was. The particulars also do not support the allegation of bias. The second particular does support an allegation of a failure to comply with s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). Perhaps realising that, the applicant filed a further amended application on 23 February 2006. That incorrectly states that it is an application under s.39B of the Judiciary Act1903 (Cth), but nothing in particular turns on that. Relevantly, the further amended application asserts that the RRT failed to exercise its jurisdiction by not observing procedures which it was required by the Migration Act to observe.
The particulars are that the applicant did not attend the hearing scheduled by the RRT. The RRT decided the review based on the information provided in the original application which I take to be a reference to the protection visa application. The particulars then assert that the RRT considered that it was relevant to its reasons for affirming the decision that the applicant did not leave her country of nationality for nearly two years after her last detention. The applicant asserts that this was information that was specifically about her which had not been given to the Tribunal by her for the purposes of the review and was not non-disclosable information.
The applicant therefore asserts that the RRT was required by s.424A of the Migration Act to give the applicant written notice of the particulars of the information and the reason why the RRT considered it relevant to the case, with an invitation to comment. The applicant asserts that the RRT failed to do so and so committed a jurisdictional error.
In an amended response filed on 31 January 2006, the Minister asserts that the application fails to raise an arguable case and further asserts, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules, that the applicant has no reasonable prospect of successfully prosecuting the proceeding. The Minister further asserted a want of particulars, but this was met by the further amended application filed after the amended response. The Minister has filed a book of relevant documents on 18 January 2006. That discloses that the applicant had made claims of persecution in China by reason of her practice of Falun Gong. It also discloses that, in substance, the protection visa claims were repeated in the review application set out on pages 40 to 44 of the court book.
I also note from that application that the applicant stated she had no adviser assisting her and did not nominate any authorised recipient to receive correspondence. Curiously, she gave a mailing address in Pitt Street, Sydney and a residential address in Campsie. It is possible that the mailing address given is the address of a person or persons assisting migration applicants. The same address is given in the application to this Court. In any event, whoever is at the mailing address was not nominated to the RRT as an agent or authorised recipient. The applicant was invited to a hearing before the RRT by letter dated 28 September 2005. That letter was sent to the applicant at her nominated mailing address (court book, page 45). Although she filed no evidence, the applicant told me from the bar table that she was disadvantaged because her migration agent had gone overseas and she did not understand English. That statement is at odds with her statement to the RRT that she did not have an agent. The applicant also told me from the bar table that she made no contact with the RRT after she received the hearing invitation because she did not know how to contact the RRT. Assuming that information to be correct, it would follow that the RRT was not put on notice of any reason hampering the applicant's attendance at a hearing.
Page 47 of the court book is a checklist indicating further steps taken by the RRT to establish whether there was some other means of contacting the applicant. In the light of that material and what the applicant has told me today, it could, in my view, not be doubted that the RRT met its obligation under s.425 of the Migration Act to invite the applicant to a hearing. Neither could it be doubted that the RRT was entitled to proceed in the absence of the applicant when she failed to appear at the time and place scheduled for the hearing.
The only other issue that needs to be resolved is whether the RRT failed to comply with an obligation arising from s.424A of the Migration Act. The decision of the RRT was a very simple one. The presiding member was not satisfied on the basis of the limited material before him that the applicant had a well-founded fear of persecution in China by reason of her practise of Falun Gong. Simply put, the applicant had failed to submit sufficient material to support a favourable decision.
In her further amended application the applicant fixes on a statement made by the presiding member at page 56 of the court book. There, the presiding member identified a range of matters that he would have wanted to explore with the applicant should she have attended a hearing. The last of those was why she did not leave China for nearly two years after her last detention. The applicant appears to be asserting that this was an adverse finding based upon her protection visa claims leading to an obligation to disclose that information pursuant to s.424A. I disagree.
First, all the presiding member was saying was that this was an issue that he would have liked to have explored with the applicant. To the extent that anything was determinative, it was the inability of the presiding member to explore the issue further. Secondly, the statement was relevantly based upon information that the applicant had provided with her review application (court book, page 44). Accordingly, the information did not need to be disclosed by reason of s.424A(3)(b) of the Migration Act.
Finally, even if the statement had been based upon information contained in the original protection visa application, on the basis of existing Federal Court authority, it did not need to be disclosed. It was the insufficiency of information that was determinative, and not any particular information contained in the visa application[1]. I do not think the authority of that decision has been in any significant way weakened by the decision of the Full Federal Court in SZEEU v Minister for Immigration [2006] FCAFC 2.
It is true that the decision of MZWPK v Minister for Immigration [2005] FCA 1256 relied upon by Bennett J in SZBCS was disapproved by the Full Court in SZEEU. However, the distinction to be drawn between information and an insufficiency of information was not disturbed in SZEEU. That distinction has been accepted by Allsop J, who was part of the majority in SZEEU, in a number of other decisions[2]. The distinction has been reinforced by Moore J following the decision in SZEEU, in SZEGX v Minister for Immigration [2006] FCA 166 at [10].
I conclude that the asserted breach of s.424A in this case is unarguable. The application before me fails to disclose an arguable case and I therefore dismiss it.
Costs should follow the event. The Federal Magistrates Court Rules call for an order for costs in these circumstances in the amount of $2,500. The Minister properly nominates a lesser amount of $1,700 and I accept that figure. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $1,700.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 March 2006
[1] SZBCS v Minister for Immigration [2005] FCA 1457
[2] See for example, SZEZI v Minister for Immigration [2005] FCA 1195 at [29] and SZEIQ v Minister for Immigration [2005] FCA 1801 at [22]
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