SZIAM v Minister for Immigration
[2006] FMCA 715
•3 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIAM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 715 |
| 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.424A, 425, 426A, 474 |
| NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDJT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 937 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 SZEGX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 166 Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 |
| Applicant: | SZIAM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 21 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 May 2006 |
| Date of Last Submission: | 3 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,800.00 and I will allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 21 of 2006
| SZIAM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 4th November 2005 and handed down on 24th November 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of the People’s Republic of China.
He arrived in Australia on 3rd July 2005. He applied for a protection (class XA) visa on the 18th of that month, but his application for a visa was refused on 8th August 2005. On 14th September 2005 the applicant then applied for a review of the decision to the Refugee Review Tribunal. The Tribunal wrote to the applicant on 7th October 2005. The Tribunal invited the applicant to attend a hearing at 2 pm on Thursday, 3rd November 2005. The letter complied with the requirements of s.425 of the Migration Act. When a reply had not been received the Tribunal telephoned the applicant’s migration agent on
1st and 2nd November 2005.
On 3rd November 2005, the morning of the hearing, the applicant’s migration agent forwarded a fax to Tribunal. The applicant’s migration agent forwarded a fax to the Tribunal. The fax said, in part:
I have passed on your messages to the applicant and he has decided NOT to attend the scheduled hearing at RRT today.
The word “not” appears in block capitals in the fax. The Tribunal proceeded to deal with the application under the provisions of s.426A of the Migration Act. The Tribunal proceeded to determine the application without taking any further action to enable the applicant to appear before it.
In the Tribunal’s decision, which was handed down on 24th November 2005, there is contained at pp.51 and 52 of the Court Book a summary of the applicant’s written claims. That summary states that the applicant followed the practice of Falun Gong in China and left China to avoid further persecution. He claimed that he was wanted and subject to further investigation and interrogation. He had to leave the People’s Republic of China before the authorities took further action against him.
The Tribunal noted that the applicant stated that he had to use bribery to obtain a travel document. The Tribunal also noted that the applicant stated that the travel document must now have been black listed.
The Tribunal set out its findings and reasons for affirming the decision not to grant a protection visa at pp.52 to 54 of the Court Book.
The Tribunal noted that the applicant did not attend the hearing and that his previous authorised recipient had advised the Tribunal that the applicant had decided not to attend the scheduled hearing. The Tribunal gave a brief summary of the relevant principles and said at pg.53:
As the applicant did not attend an oral hearing, his claims could not be tested by the Tribunal. I have only the information contained in the written material before me from which to make a determination.
The Tribunal went on to state that there was nothing to support the applicant’s claims other than his own unsubstantiated assertions. The Tribunal said that there were insufficient particulars provided by the applicant to enable the Tribunal to be satisfied that the events described by the applicant had occurred or that the applicant was a Falun Gong practitioner. Because the applicant did not attend the hearing the Tribunal had been unable to test the applicant’s credibility.
Accordingly, the Tribunal was unable to be satisfied that the applicant was or is a Falun Gong practitioner or that he wrote articles which were critical of the People’s Republic of China and its authorities. The Tribunal was unable to be satisfied that the applicant was subjected to serious harm by the authorities. The Tribunal was not satisfied on the evidence before it that the applicant faced a real chance of persecution if he were to return to the People’s Republic of China at the time of the hearing or in the foreseeable future. The Tribunal was unable to be satisfied on the evidence before the Tribunal that the applicant had a well-founded fear of persecution for a Convention reason and was therefore not satisfied that the applicant was a refugee.
Those are the reasons why the Tribunal did not grant the applicant’s application.
On 3rd January 2006 the applicant sought a review of the Tribunal’s decision. He gave three grounds for seeking a review. First, he claimed that the decision involved an error of law, being an error involving incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision. There are very few findings of fact in the Tribunal decision due to the paucity of material supplied. The Tribunal was satisfied that the applicant was a national of the People’s Republic of China on the basis of the copy of the applicant’s passport. The applicant has provided no details of any error of law and in my reading of the decision I am unable to discern any error of law. The applicant’s first ground must fail.
The applicant’s second ground is that Tribunal misconstrued or misapplied the law concerning its determination. That appears to me to be no more than a restatement of the first ground and is equally devoid of particulars for merit. I have found no error of law.
The applicant’s third ground is that the Tribunal erred in making the refusal decision without giving him sufficient opportunity to fully present his case properly. The Tribunal wrote to the applicant on
7th October 2005 telling him that the Tribunal 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 the hearing on Thursday, 3rd November.
The letter was sent to the applicant’s post office box which is the same postal address that he has given as his address for service in respect of these proceedings.
The Tribunal telephoned the applicant’s former migration agent on two occasions prior to the hearing to ascertain whether the applicant intended to attend the hearing or not. The applicant denies the fax message from his former migration agent to the Tribunal that appears at p.43 of the Court Book. I presume that he denies the quoted decision not to attend the Tribunal hearing. In my view, the Tribunal was entitled to rely on that fax message and there was nothing in the circumstances of the message or on the face of the message which could have given the Tribunal any possible indication that the applicant was not aware of the hearing or that the applicant knew of the hearing and wished to attend. In any event, the applicant did not attend.
The applicant was not able to give a satisfactory explanation as to why he did not attend, but he told the Court that he did not ask the Tribunal for a further hearing because of his poor command of English.
The applicant told the Court that he thinks that the Tribunal should have given him a really fair chance and allow him the opportunity to argue his case. The applicant was given a really fair chance to attend and had he attended his case could have been examined by the Tribunal. The applicant told the Court that he had submitted additional information to the Tribunal on 28th April 2006. Whether or not that is so, there is little point in submitting additional information in April 2006 in respect of a decision that was handed down in November 2005.
The applicant claimed that the Tribunal could not explain the reasons why the Tribunal had refused his application. The Tribunal when it wrote to the applicant made it quite clear that the applicant had not provided sufficient information to enable the Tribunal to be satisfied on the basis of the information that it had. That is why the Tribunal invited the applicant to attend the hearing. The reasons contained in the Tribunal decision show that as the Tribunal had warned the applicant there was insufficient evidence to enable the Tribunal to be satisfied that he met the criteria for a protection visa.
The applicant told the Court that the mere fact that he had a passport did not mean that he had not been persecuted. The fact that the applicant possessed a passport was not part of the Tribunal’s reasons for refusing the applicant’s application for review. The Tribunal noted the applicant’s claim that he had to use bribery to obtain a travel document and the applicant’s belief that the travel document must by then have been black listed and did not challenge that assertion at any place in the Tribunal’s findings and reasons. The applicant’s claim that the Tribunal in some way used the fact that he had obtained the passport as a part of the reason for refusing his application is entirely misconceived.
The applicant also told the Court that the Tribunal did not consider his case properly because the Tribunal did not consider the whole picture. The Tribunal considered the evidence that the applicant provided and without the applicant attending was not satisfied that the information was sufficient. The applicant also told the Court that he believed that the Tribunal member clearly showed bias towards him. It has been made clear in many decisions, including the Full Court decision of SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, that an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. The allegation is not be lightly made and must be clearly alleged and proved.
The circumstances where the Court will find bad faith or bias are rare and extreme, especially so where all that the applicant relies upon is the written reasons for the decision. There is no evidence of any bias whatsoever. If the applicant had attended the hearing of the Tribunal he would have had the opportunity to give evidence and argue his case. He did not do so. There are many decisions which are binding on this Court relating to the consequences of applicants who choose not to attend hearings of the Refugee Review Tribunal. They include S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283, NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, SZDJT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 937, which is an appeal decision from this Court, SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 and SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811.
In SZBKB (supra) and also in NAVX (supra) the failure of an application was described by their Honours as the inevitable result of non-attendance. This is just such a case. The solicitors for the respondent in para.10 of their written outline of submissions noted that the applicant was not legally represented and gave consideration to whether the decision showed any breach of s.424A(1) of the Migration Act. The submission goes on to say:
The reason for the Tribunal’s decision is simply the lack of detail in the applicant’s claims and his failure to attend the Tribunal hearing, but such matters are thought processes and so not within s.424A(1)(a).
I am referred to the decisions of SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 and the cases cited by the Honourable Bennett J in that decision, and also the decision of SZEGX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 116, which is a decision of the Honourable Moore J. Both of those decisions were appeals from decisions of Federal Magistrates.
The solicitor for the respondent submits correctly that there is no breach of s.424A (1). There is no reviewable error. The decision is a privative clause decision which attracts the protection of s.474 of the Migration Act. The application for review is entirely without merit and it will be dismissed with costs. I propose to make an order for costs, particularly as I have found that the applicant’s claim was without merit. The amount of $2,800.00, which is sought, is to my mind a fair and reasonable amount and I have no hesitation in awarding it. I will take the applicant’s financial circumstances into account and I will allow six months to pay. I require a transcript of my reasons for this decision. The application will be removed from the list of cases awaiting finalisation.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 10 May 2006
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