SZIBQ v Minister for Immigration

[2006] FMCA 1331

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIBQ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1331

MIGRATION – Application to review decision of Refugee Review Tribunal – whether failure to comply with ss.424A and 425 of the Migration Act.

Migration Act 1958 (Cth), ss.424A, 425, 426A

Minister for Immigration & Multicultural & Indigenous AffairsvVSAF of 2003 [2005] FCAFC 73
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195

Applicant: SZIBQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG75 of 2006

Judgment of: Barnes FM

Hearing date: 31 August 2006

Delivered at: Sydney

Delivered on: 31 August 2006

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $2,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 75 of 2006

SZIBQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 6 December 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, who is a citizen of the People’s Republic of China, arrived in Australia in February 2005 and applied for a protection visa in April 2005.  In a statement accompanying his protection visa application he claimed to fear persecution in China.   He claimed that while doing business in China he had maintained a close business relationship with some Taiwanese business people and had introduced such businessmen to local politicians.  After his arrival in Australia he had heard that at least three of those businessmen had been arrested because the government suspected they were spies.  He claimed his wife told him that the police had been to his home and asked when he would return to China and he believed the Chinese government would treat him as a spy and persecute him.  He feared that he would be arrested and imprisoned and did not believe that the Chinese judicial system would give him fair trial. 

3. The application was refused and the applicant sought review by the Tribunal by application lodged on 19 August 2005.  In his application for review he provided a residential address as his only contact details.  He asked for correspondence to be sent to that address.  The Tribunal wrote a number of letters to the applicant which were returned to sender.  Relevantly on 27 September 2005 it wrote to the applicant by registered post to the mailing address given in the review application inviting him to attend a hearing on 24 October 2005. 

4. An envelope which was postmarked as sent on 28 September 2005 addressed to the applicant at the residential address that he had provided in his application for review was returned to the Tribunal on

   
   

   4 October 2005 which had been.  It is marked “Return to Sender, insufficient address and no such number”.  It appears from the material before the Court that this envelope contained the letter of 27 September 2005.  Other mail, including the initial acknowledgment of the application, sent to that same address was also returned to sender. 

   
   

   It appears from the material before the Court that a copy of the letter of 27 September 2005 was also sent to the applicant c/- an address in Pitt Street, Sydney.  A further envelope in the material before the Court addressed to the applicant at a Pitt Street Sydney address is also marked “Return to Sender” and stamped received by the Tribunal on

   
   

   30 September 2005 with the notation “No such number.”

5. However on 20 October 2005 the Tribunal received a notification of change of address for the applicant providing both a new home address and also a Post Office box mailing address.  A further letter was sent to the applicant dated 21 October 2005 by registered post to the mailing address notified on 20 October 2005.  That letter noted that a letter had been sent to the applicant dated 27 September 2005 inviting him to attend a hearing at the Tribunal on 24 October 2005 and that he did not reply to the hearing invitation.  As the Tribunal had received a new address for correspondence dated 20 October 2005 it enclosed details of a new scheduled hearing on 16 November 2005.  It asked the applicant to reply to the invitation to hearing on an enclosed response form.

6. A Tribunal “hearing record” records that there was no attendance by the applicant at the hearing scheduled on 16 November 2005. 

   
   

   The Tribunal reasons for decision record that no response was received by the Tribunal to the letter of 21 October 2005, that the letter was not returned and that the Tribunal had no other information, such as a telephone number, to enable it to contact the applicant.  I note that in its description of the letter of 21 October 2005 the Tribunal refers mistakenly to the scheduled hearing date being 24 October 2005.  It is clear from the letter of 21 October 2005 that 24 October 2005 was the original date specified for hearing but also that the hearing was re-scheduled for 16 November 2005.

7. The Tribunal recorded that the applicant did not appear before the Tribunal on the day, time and place scheduled for hearing and in those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth), it decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. The Tribunal summarised the applicant’s claims made in connection with his protection visa application.  It noted that no new or supplementary claims were submitted with the review application. 

   
   

   It was satisfied and accepted that the applicant was a citizen of China but was not satisfied on the insufficient evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.

9. The Tribunal noted that generally where broad allegations are made, the hearing is an opportunity for it to gather details about the claims, that the applicant had been put on notice by the Tribunal that it was unable to make a favourable decision on the information before it but that he had not provided any further information in support of his claims despite what was described as an ample opportunity for him to do so.  Nor had he given the Tribunal the opportunity to explore aspects of his claims with him.  The Tribunal found that a number of relevant questions were therefore left unanswered.  It indicated in particular it would have wished more detail about the nature of the applicant’s relationship with the Taiwanese businessmen and with the politicians to whom he introduced the businessmen.  The Tribunal stated that it would also have wanted to know what their situation was now.  It also stated that it had no information as to whether the Taiwanese did business with others and if so, whether other people were affected by the police action against the Taiwanese.  In the absence of such information the Tribunal did not accept that there was a real chance of the applicant suffering harm amounting to persecution should he return to China in the foreseeable future. 

10. The applicant sought review by application filed in this Court on 9 January 2006 supported by an affidavit sworn on 5 January 2006. The applicant raises two grounds in his application for review. First it is contended that the Tribunal failed to give the applicant information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review and failed to invite the applicant to comment on it and in so doing, breached s.424A(1) of the Migration Act 1958 (Cth).

11. No failure to comply with s.424A of the Migration Act is established. It is apparent in the present case that the reason for the decision was not simply the information given by the applicant in connection with his protection visa application but rather was an evaluative conclusion based on the lack of information and further detail which the applicant had been invited to provide. (See SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29] per Allsop J and SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78).

12. The second ground relied on is that the Tribunal failed to invite the applicant to appear before it and so breached s.425(1) of the Migration Act. As set out above, initially the Tribunal sent a letter of invitation to the applicant at the address notified in the application for review and also to another address. Both of those letters were returned to sender. However on 20 October 2005, which was before the date originally scheduled for a hearing, the Tribunal received a notification of change of address. It then sent a fresh letter dated 21 October 2005 by registered post to the new mailing address notified to it by the applicant inviting him to attend a rescheduled hearing on 16 November 2005.

13. There is nothing in the material before the Court to suggest that the Tribunal failed to comply with the requirements of the Migration Act. In fact the Tribunal complied with its obligations in sending the letter of 27 September 2005 to the address notified in the application for review. That letter complied in terms of content and otherwise with the requirements of ss.425A and 426. When the Tribunal received the notification of change of address it sent the letter dated 21 October 2005 with a rescheduled hearing date. The initial invitation to hearing was sent to the address for service provided on the application to the Tribunal. The subsequent notification of the changed hearing date was sent to the changed address notified to the Tribunal. Thus the Tribunal met its obligation to invite the applicant to a hearing under s.425.

    
    

    The applicant did not appear on the scheduled hearing date and in those circumstances the Tribunal was entitled to proceed as it did to make the decision pursuant to s.426A of the Act without taking further action to enable the applicant to appear before it. No breach of s.425 is established.

14. I note that the factual error in the Tribunal reasons for decision to which I referred, that is, that it described the hearing as being on 24 October 2005 is no more than a factual error.  It is apparent from the Tribunal hearing record in relation to 16 November 2005 that the Tribunal decision made on that date was made after the time scheduled for the hearing.

15. For the sake of completeness I note also that in the affidavit sworn by the applicant on 5 January 2006 he made a completely different claim in relation to why he applied for a protection visa from that which appears in the protection visa application.  However insofar as the applicant seeks to make a fresh claim in relation to the basis for a fear of persecution, such a claim does not establish a jurisdictional error on the part of the Tribunal making its decision on the basis of the information before it at the time. 

16. The applicant also states in that affidavit that after he lodged the review application he expected the Tribunal would write to him and ask him to provide additional information, but he did not receive such an invitation from the Tribunal, and that he was not aware the Tribunal had invited him to appear before the Tribunal until he received the decision from the Tribunal.

17. However the Tribunal wrote to the applicant at the address notified on the application for review acknowledging receipt of his application and among other things, asking him to immediately send any documents or other information he wanted the Tribunal to consider.  It appears that two copies of that letter were sent, one addressed to the correct street address which was a street which had the name “Drive” in it and the other incorrectly addressed to “Street” rather than “Drive”.  It also appears that both such letters were returned to the Tribunal.  

    
    

    The “Drive” address was the address provided in the application for review.  In any event, no jurisdictional error is apparent on the basis that appears to be contended for in the applicant’s affidavit. 

    
    

    The Tribunal invited the applicant to attend a hearing in accordance with s.425. It was not otherwise obliged to ask for further information.

18. More generally, I have considered the Tribunal reasons for decision and find no jurisdictional error apparent. The applicant failed because the Tribunal found that there was insufficient evidence before it for it to be satisfied of the applicant’s claims. The Tribunal was unable to reach the state of satisfaction required by ss.36 and 65 of the Migration Act in order to grant the visa. As the Full Court of the Federal Court stated in Minister for Immigration & Multicultural & Indigenous AffairsvVSAF of 2003 [2005] FCAFC 73 at [17] s.65 requires a visa application to be rejected in the absence of a positive finding of satisfaction.

    
    

    Also see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] to [16] and note that in NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] it was observed that the Tribunal is entitled to list a number of significant matters in relation to which it would have liked to satisfy itself at the hearing, as it did in this instance.

19. As no jurisdictional error has been established the application must be dismissed. 

20. The applicant has been unsuccessful.  There is nothing on the material before the Court to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. 
    The first respondent seeks costs in the sum of $2400.  I consider that amount is appropriate having regard to the nature of this and other similar matters. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  11 September 2006