SZHZA v Minister for Immigration - [2007] FMCA 905

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHZA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 905

MIGRATION – Review of decision of RRT – whether applicant does not attend Tribunal hearing – where applicant claims he did attend but was not called – whether Tribunal did not act in accordance with s.425 Migration Act 1958.

Migration Act 1958, ss.36, 424A, 425

Applicant:

SZHZA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3843 of 2005

Judgment of:

Raphael FM

Hearing date:

28 May 2007

Date of last submission:

28 May 2007

Delivered at:

Sydney

Delivered on:

28 May 2007

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Ben O’Donnell

Solicitors for the Respondent:

Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $5,000.00.
The name of the first respondent be changed to Minister for Immigration & Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3843 of 2005

SZHZA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 16 July 2005. On 15 August 2005 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 17 August 2005 a delegate for the Minister refused to grant a protection visa and on 20 September 2005 the applicant applied for review of that decision.
On 14 October 2005 the Tribunal wrote to the applicant advising him that it was unable to make a decision in his favour on the material provided and invited him to a hearing on 11 November 2005. The applicant did not reply to the hearing invitation. According to the RRT hearing record the applicant did not attend the hearing. On 11 November 2005 the Tribunal acting in accordance with the provisions of s.426A of the Migration Act 1958 (the “Act”) determined to affirm the decision under review. It handed that decision down on 1 December.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations are found at [CB 27]. This is a one paragraph statement indicating that the applicant had a family that had been targeted by the Communist party and had grown up as a Christian. In early 2005 he had been accused of joining an illegal underground church and was arrested. He was detained for four days during which time he suffered mental and physical torment. It will be seen from that short statement that in order for the Tribunal to be satisfied of the matters which s.36 of the Act requires he would have to provide a fairly convincing story to the Tribunal. In the absence of his attendance that was not possible.
Therefore the Tribunal’s decision that, based upon the claims the applicant had provided, it was not satisfied that all the statutory elements of the grant of protection were made out is unimpeachable. I do not propose to go through the many claims of breaches of ss.424A and 425 made by the applicant through his friend in the application to this court. The only serious matter of consideration arises from a submission made by the applicant on 11 May 2007 a few days before the hearing and well over a year after the application was filed.
The submission which the applicant makes was that he actually attended the RRT on the day in question:
“When I got there I found the lift did not work; I could not get to the floor. Some kind hearted person helped me to the floor and I gave the letter to the receptionist, she asked me to sit down and waited. I was sitting not very close with the receptionist, a lot of people there. I did not know what to do. Half an hour later, I asked a man who spoke Mandarin, probably the interpreter what I should do, he asked me to wait until somebody calls me. One hour later, I could not see any people coming to call me, I asked the receptionist, she could not communicate with me, I saw a lady who could speak Mandarin, I asked her to help me ask when was my hearing. The receptionist told me that I could leave, the hearing was finished. I told her that I had not had a hearing yet; the receptionist there made a phone call and told me that I could leave, the hearing was completed. I felt very strange, but I did not know what to do, I returned home. Later, I was informed that my application was refused. When talking with a friend, I knew that RRT made mistake under section 425, 424 and 426. There should be a hearing before making a decision. RRT did not do so. I was not given an opportunity to explain my case. I hope that my case can be remitted to the Tribunal for reconsideration.”
The applicant gave evidence. He was cross-examined by Mr O’Donnell on behalf of the Minister. He told the same story as appears in the submission. He confirmed to Mr O’Donnell that he was concerned about spies from the PRC at the Tribunal. Mr O’Donnell pointed out to him that in his original application he had given this as the reason for not attending the Tribunal hearing. Although Mr O’Donnell did not press the point further, I asked the applicant why, if he was frightened of spies, he had addressed two complete strangers who spoke Mandarin at the hearing room. His answer, whilst consistent with his latest story, did not seem to me to be consistent with a fear of spies as contained in his original application and affirmed by him under cross-examination from Mr O’Donnell. As I explained to the applicant I was concerned that he had not completed the response to the Tribunal hearing invitation. This seems to me to indicate an unwillingness to attend the hearing.
Mr O’Donnell produced evidence from Ms Karsai who at the relevant time was acting in the position of Tribunal Services Unit Registry Manager. She gave a full affidavit detailing the manner in which the reception area of the Tribunal works on hearing days. She explained that if a person arrives at the Tribunal and approaches the desk their name is marked with a yellow highlighter on the list of hearings which are scheduled for that particular day. She exhibited to the affidavit a list for the relevant day with a number of names marked with the yellow highlighter and a number of names not so marked including that of the applicant. It is to be remembered that the applicant says that he took the hearing invitation letter to the receptionist. I am satisfied from the affidavit of Ms Karsai that if this had occurred the receptionist would have marked the applicant’s name because it was quite clear from that letter who he was and why he was there.
I am informed by Mr O’Donnell that the document which is exhibit A is not the actual document that was in front of the receptionist it is the duplicate document that was kept in the Registry Manager’s office based upon information provided by the receptionist at the time. The receptionist’s copy is no longer available. I have no reason to believe that on this particular day the copy would have been inaccurate particularly because if, as the applicant had said, he had presented the receptionist with the hearing invitation letter there would have been no reason for her not to have noted his attendance.
In considering whether or not to accept the story of the applicant I also take into account that the first time the complaint containing his submission was made was when the submission was filed on 11 May 2007, that he made no telephone call to the Tribunal immediately after the incident in question, that he did nothing after he had received the Tribunal’s decision and that there is absolutely no reference to this failure by the Tribunal to provide him with the hearing in his original application to the court. For those reasons I am not satisfied that the situation outlined by the applicant is what really occurred and therefore any chance that the applicant might have that I should find that the Tribunal did not comply with its responsibilities under s.425 of the Act cannot be maintained.
Because the applicant, in his general submissions, indicated what now seems to me to be a common misunderstanding of the responsibilities of the Tribunal namely, that it is obliged to provide draft reasons to an applicant as to why it proposes to make a particular finding, I explained to the applicant what I proposed to do in relation to this decision and asked him to comment. This is not a course of action I would normally take but it is a course of action that appears to be common in civil law countries such as China and I wished to allow the applicant every opportunity to refute the findings that I felt obliged to make having heard the evidence. Nothing he said to me in response gave me any cause for concern that my decision might not be correct.
I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000. I also order that the name of the first respondent be changed to Minister for Immigration & Citizenship.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: