SZHYU v Minister for Immigration

[2006] FMCA 1496

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1496

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

Migration Act 1958 (Cth), ss.424A, 425, 441A, 441C

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2003] FCAFC 73
SZBZO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 494
SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134

Applicant: SZHYU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3837 of 2005

Judgment of: Barnes FM

Hearing date: 4 October 2006

Delivered at: Sydney

Delivered on: 4 October 2006

REPRESENTATION

Applicant: In person (via telephone)

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The title of the first respondent be amended to Minister for Immigration and Multicultural Affairs.

2. The application be dismissed.

3. The applicant pay the costs of the first respondent fixed in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3837 of 2005

SZHYU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 22 November 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, who claims to be a citizen of People’s Republic of China, arrived in Australia in March 2005.  He applied for a protection visa.  In a statement accompanying his protection visa application he claimed to fear persecution in China on the basis that he was a Falun Gong practitioner who had been mistreated, having been arrested and beaten by policemen after participating in a Falun Gong demonstration. He claimed to fear facing a further risk of being gaoled if he stayed in China or returned. 

3. His application was refused and he sought review by the Tribunal by application lodged on 6 September 2005.  That application was accompanied by a written statement which repeated the claims he had put to the Department of Immigration. 

4. It is relevant to note that in his application to the Tribunal the applicant provided an address for correspondence which was a post office box in the Haymarket NSW.  On the form the applicant stated that he did not have an adviser or migration agent.  He provided a residential address in Hurstville but did not provide a telephone contact number. 

5. The Tribunal wrote to the applicant on 28 September 2005 by letter addressed to the postal address provided in the review application.  

   
   

   I note that this was the same address which appears from the material before the court to have been provided to the Department and Tribunal by a notification of change of address which is stamped as received by the Department on 15 September and the Tribunal on 23 September 2005.  It is, nonetheless, the same address as appears on the application for review to the Tribunal as the mailing address.

6. Before the court is an affidavit of the District Registrar of the Refugee Review Tribunal, Jonathan Willoughby-Thomas, sworn on 3 October 2006, attaching mailing information in relation to this letter as identified by the registered post item number appearing on it and containing details as to the procedures of the Tribunal in sending letters such as the letter of 28 September 2005 to applicants. 

7. The letter of 28 September 2005 invited the applicant to attend a hearing on 31 October 2005 at a place and time specified and advised the applicant that if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice.

8. The Tribunal reasons for decision record that the letter to the applicant was not returned unclaimed and that the applicant did not attend the hearing on the date, time and place specified. It is also recorded that as the applicant had not provided the Tribunal with any telephone contact number, no other steps could be taken to contact the applicant and that, in those circumstances, the Tribunal decided pursuant to s.426A of the Migration Act 1958 to make a decision on the review without taking further action to enable the applicant to appear before it. 

9. The Tribunal accepted that the applicant was a citizen of China, observed that he had been put on notice that the Tribunal was unable to make a favourable decision on the information before it but that he had not provided further information or given the Tribunal the opportunity to explore aspects of his claims with him. It found a number of relevant questions which it referred to were left unanswered and concluded in the absence of an opportunity to satisfy itself on such matters, it was not satisfied that the applicant was a Falun Gong practitioner and hence did not accept his claims of mistreatment or that there was a real chance that harm amounting to persecution for a Convention reason would befall him should he return to China.  On that basis it found that the applicant did not have a well-founded fear of persecution in China for a Convention reason. 

10. In his application for review, the applicant claimed that the Tribunal had failed to comply with s.424A of the Migration Act 1958 and with s.425 of the Act. He also relied on a supporting affidavit which stated that he did not receive the invitation to the Tribunal hearing.

11. Before considering the grounds for review, I should mention that the applicant was not present in Court at the time the matter was listed for hearing today.  A person who identified himself as a friend of the applicant attended the court, in order, he said, to collect the decision of the court.  However the court was able to contact the applicant on the telephone number provided on the application for review and the hearing was conducted with the participation of the applicant by way of telephone with the assistance of an interpreter. 

12. The first ground relied on in the application is that the Tribunal failed to give the applicant information that it considered would be the reason or part of the reason for affirming the decision under review and invite comment. It is said that the Tribunal breached s.424A(1) of the Migration Act. The particulars are that the Tribunal failed to invite comment on its statement that it would further have wished to find out why the applicant waited over two years after the claimed brush with the police to leave the country. As set out above, the Tribunal considered that insufficient detail was provided by the applicant in support of his claims. It is clear from reading the decision as a whole that the reason for the decision was that having read the limited material before it, that the Tribunal was unable to reach the required mental state of satisfaction that the applicant satisfied the criteria for the visa for which he applied in particular as required by ss.36 and 65 of the Migration Act.

13. In those circumstances no failure to comply with s.424A is established, consistent with the approach of the Federal Court in SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 at [11] – [13] per Allsop J and also see SZBZO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 494 at [48] – [49] per Jacobson J. As in those cases, as Allsop J stated, the reason for the decision of the Tribunal was:

    “An evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation.”

14. The second ground is that the Tribunal failed to invite the applicant to appear before the Tribunal and so breached s.425(1) of the Migration Act. The particulars of this ground are that the Tribunal claimed it wrote to the applicant on 31 October 2005 (sic) inviting him to appear before the Tribunal. The applicant claims he was unaware of such invitation.

15. First, while the particulars refer to a letter of 31 October 2005, it is apparent that this is intended to be a reference to the invitation to the hearing which was specified to take place on 31 October 2005. 

    
    

    The Tribunal’s claim, as set out in its decision, is that it wrote to the applicant on 28 September 2005 and the copy of the letter of invitation that appears in the material before the court is a letter dated

    
    

    28 September 2005, a copy of this letter also being annexed to the affidavit of Mr Willoughby-Thomas of 3 October 2006. 

16. Section 425(1) requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant states in his affidavit that he did not receive such invitation from the Tribunal. He was not cross-examined on his affidavit and I have proceeded on the basis that he did not receive the invitation from the Tribunal. However, as submitted for the first respondent, the Migration Act provides a means of giving notice of an invitation to an applicant and I am satisfied on the evidence before me, including the affidavit of

    
    

    Mr Willoughby Thomas that the Tribunal complied with its obligations to invite the applicant to appear before it.

17. In particular, I am satisfied that the applicant was invited, pursuant to s.441A(4), by the letter of 28 September 2005 dispatched by prepaid post within three working days to the last address for service provided to the Tribunal by the applicant in connection with the review. Hence, under s.441C(4) of the Migration Act, the applicant was taken to have received the document within seven working days after the date of the document.

18. Hence the requirements of s.425A of the Migration Act were satisfied in relation to the method and the time of notice of the hearing set for

    
    

    31 October 2005. In those circumstances, despite the fact that the applicant says that he did not receive the invitation (which he told the court was sent to the address of his migration agent) nonetheless the Tribunal met its obligations under the Migration Act to invite him to a hearing. Hence it was entitled under s.426A of the Act to proceed to make a decision without taking further action to allow or enable the applicant to appear before it.

19. As Sundberg and Hely JJ stated in VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 at [16] referring to the scheme of Part 7 of the Migration Act, such provisions expressly contemplate that in particular circumstances including cases involving no fault of the applicant an applicant will not attend a hearing but that notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence. (Also see Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2003] FCAFC 73 at [12].)

20. No failure to comply with s.425 of the Migration Act has been established. The applicant is deemed to have received the invitation even if he did not in fact receive it. The Tribunal met its obligations under the Migration Act to invite the applicant to a hearing.

21. For the sake of completeness I note that no jurisdictional error is otherwise apparent on the material before me and in those circumstances the application must be dismissed.  I will hear submissions in relation to costs.

22. The applicant has been unsuccessful and there is nothing in the material before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. 

    
    

    The amount of $5000 which is sought is appropriate in light of the nature of this and other similar matters.  The fact that the applicant is, as he tells the court, in Perth and unfamiliar with the procedures in obtaining a migration agent is not such as to warrant any departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. 

23. The respondent’s submissions also seek that the title of the first respondent be amended to Minister for Immigration and Multicultural Affairs and it is appropriate to make that order. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  11 October 2006