SZICC v Minister for Immigration & Anor
[2006] FMCA 1431
•8 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZICC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1431 |
| MIGRATION – Visa – protection visa – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of Japan – applicant claims fear of persecution for reasons of his race – where the applicant failed to attend the Refugee Review Tribunal – obligation on Tribunal under Migration Act 1958 (Cth) s. 424A(1) to provide applicant with information does not arise at or prior to the time when the Tribunal invites the applicant to attend a hearing and give oral evidence under Migration Act 1958 s.425 – the test to be applied is whether the information is sufficient to enable the Tribunal to make a decision in the applicant’s favour – if the Tribunal is not satisfied that the information is sufficient then the Tribunal is obliged to invite the applicant to attend a hearing – where applicant claimed that the Tribunal failed to exercise its discretion under Migration Act 1958 (Cth) s.426A(2) – held that Tribunal did not misunderstand its discretion – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 425A, 441A, 441C, 426A, 474, 476 |
| SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 followed NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 followed SZIGV v Minister for Immigration [2006] FMCA 1221 referred to SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 followed SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 followed NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 referred to SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 followed |
| Applicant: | SZICC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 99 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 September 2006 |
| Date of Last Submission: | 8 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 September 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for an adjournment is refused.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 99 of 2006
| SZICC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 24th November 2005. The Tribunal handed down its decision on 15th December 2005.
The Tribunal affirmed the decision of a Delegate of the Minister not to grant the applicant a protection visa.
The applicant seeks orders (1) by way of a declaration that the decision of the Refugee Review Tribunal was made in error of jurisdiction and is therefore null and void; (2) that the decision of the Refugee Review Tribunal should be set aside; (3) that the application be remitted to a differently constituted Tribunal to be reheard according to law.
The applicant is a national of Japan who arrived in Australia on
7th April 2005. On 23rd May he applied for a protection visa but this was refused on 17th August. On 13th September 2005 the applicant applied for a review of that decision by the Refugee Review Tribunal. The pages of the application for review are set out on pages 38 through to 41 of the Court Book. In the application the applicant set out his residential address but no telephone number. He did not nominate any advisor to act for him in relation to the application.
He set out a post office box number in the city of Sydney as his address for correspondence. The Tribunal wrote to the applicant on
5th October 2005. A copy of that letter is set out on pages 42 and 43 of the Court Book. The letter told the applicant 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 this information alone.
The letter invited the applicant to attend a hearing on
Thursday, 17th November 2005, to give oral evidence and present arguments in support of his claims. The letter enclosed a response to hearing invitation form and the applicant was asked to complete the form and tell the Tribunal whether or not he intended to attend the hearing. There is no issue as to the fact that the applicant did not attend the hearing.
The Tribunal went through its check list procedure when no reply had been received to the hearing invitation and a copy of that document appears on page 44 of the Court Book. The Tribunal noted that the applicant did not reply to the hearing invitation, although checks run by the Tribunal had indicated that he had not left Australia and had not provided any notice of a change of relevant address details.
The Tribunal went on to say at page 51 of the Court Book:
The registered letter sent to him was not returned unclaimed.
A week has passed since the hearing date with no word from the applicant. In the circumstances the Tribunal will now proceed to a decision on the papers.
The Tribunal's findings and reasons which are quite brief are set out on pages 54 and 55 of the Court Book. Also on page 54 the Tribunal considers the applicant's claims and evidence. The Tribunal had before it the applicant's file from the Department of Immigration and Multicultural and Indigenous Affairs and the decision record of the Delegate. The Tribunal also had before it material that was included in the applicant's Refugee Review Tribunal file.
I note that the applicant did not provide any further material to the Tribunal when he submitted his application for review. The Tribunal noted that the applicant claimed fear of persecution in Japan for the convention relation reasons of race. The Tribunal noted that the applicant is ethnic Chinese and that he migrated from the People's Republic of China to Japan in 1997.
The Tribunal noted that the applicant was a tempura chef up to the time he came to Australia. The Tribunal also noted that the applicant noted that his employer in Japan did not provide or subsidise Japanese lessons for him and threatened to sack him if his fluency, in Japanese presumably, did not improve, and that the applicant regarded that situation as one of severe discrimination.
The Tribunal noted that the applicant has made no other substantive claims. In the Tribunal's findings and reasons, the Tribunal noted that the applicant's apparent silence in the matter did not help his case.
The Tribunal noted that the applicant was a national of Japan but could not rule out that he also had access to restoring his former citizenship of the People's Republic of China. The applicant made no claims in respect of the People's Republic of China.
In any event, the Tribunal noted that the case turned on other issues. The Tribunal did not believe that it was at all clear that the applicant's problems with his former employer arose due to his race. The Tribunal went on to say that the issue appeared to be one of practical language skills in a particular work place, not one of race.
The Tribunal felt that for want of additional information from the applicant that his claims lacked a nexus with the Refugees Convention. The Tribunal also noted that to the extent that other work places in Japan might also require the applicant to speak better Japanese the applicant's problems would not be significantly different in Australia where he now chose to reside. Private or state employers in Australia are under no domestic or international obligation to pay for the applicant to learn English.
The Tribunal also found that the problems that the applicant claimed between himself and his employer were individual and the treatment that he claims to have received from his former employer appeared to fall significantly short of persecution and referred to s. 91R of the Migration Act. The Tribunal went on to conclude:
Thus for want of additional information from the applicant his claims lack the vital element of persecution.[1]
[1] See at page 55 of the Court Book
The Tribunal was not satisfied that the applicant faced a real chance of Convention-related persecution in Japan and affirmed the decision not to grant a protection visa.
The applicant commenced proceedings in this Court on
11th January 2006 by means of filing an application. He has obtained legal advice under the Refugee Review Tribunal legal advice scheme. It is clear that the legal advisor whom he saw prepared an amended application which was filed on 22nd May 2006. In the amended application there are two grounds.
The first ground alleges that the Tribunal failed to carry out its statutory duty in two ways. First that the Tribunal breached s.424A of the Migration Act at the time when it wrote to the applicant inviting him to attend a hearing under the provisions of s.425 of the Migration Act.
The argument is that the Tribunal, having considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone, had no material before it in the application for review, other than the applicant's name and address and other details and no substantive information in respect of the applicant's claim for a protection visa. The argument is that the Tribunal had information caught by s.424A and failed to give particulars of that information to the applicant.
The second reason why the applicant claims that the Tribunal failed to exercise its statutory duty is under s.426A of the Migration Act by failing to exercise it discretion to hold a hearing under sub-s.426A(2) of the Act. The third ground is that the Tribunal failed to complete its review of the applicant's application. I will deal with those arguments in some detail shortly.
The applicant has attended the hearing today. He confirmed that he had not attended the Tribunal hearing but said that he had not received any notification from the Tribunal to that effect. He confirmed that his address at the time was a post office box in the city of Sydney but said that he did not receive it. He expressed the view that the Tribunal had not dealt with him according to law and said that it was not fair that everybody should go for an interview, why not him.
He asked for his application to be sent back to the Refugee Review Tribunal. There is no evidence before the Court that the applicant did not receive the letter from the Refugee Review Tribunal.
The applicant, notwithstanding having received legal advice did not file any affidavit to that effect. The amended application makes no mention of that point and it is conceded that the amended application was prepared by the solicitor who provided the legal advice.
In any event, provided that the Tribunal complies with its obligations, it is not a jurisdictional error if the applicant, for some reason, does not receive the letter. Where the Tribunal's notice of invitation to a hearing is sent in accordance with statutory requirements and the Tribunal has complied with its obligations, there is no failure to give the applicant the opportunity to appear. The Tribunal is entitled to make a decision on the application for review in the absence of the application, (see SZBSZ v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCA 779 and also NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184).
The Tribunal had complied with its obligation to give the application notice of the day on which, and the time and place at which, he was scheduled to appear, as set out in s. 425A by sending the notice to the applicant's address for correspondence which was the post office box number in the city of Sydney. That complied with s.441A (4).
There was no obligation on the Tribunal to do anything further.
Under s.441C(4):
If the Tribunal gives a document to a person by the method in sub-s. 441A(4), which involves despatching the document by
pre-paid post or by other pre-paid means the person is taken to have received the document:
(a) If the document was despatched from a place in Australia to an address in Australia 7 working days in the place of that address after the date of the document;
or
(b) in any other case 21 days after the date of the document.
It is clear from the Court Book that the s. 425 letter of 5th October 2005 was posted to the applicant at the post office box number that he gave as his address for correspondence on 5th October 2005. The copy of the letter shows at page 42 of the Court Book the copy of the registered post sticker bearing the number RP25491982. I am satisfied that the Tribunal complied with its obligations to invite the applicant to a hearing.
It is not the case that everyone is entitled to attend a hearing as the applicant submitted today. Whilst sub-s.425(1) of the Act provides that:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Sub-s.2 provides that:
Sub-s.1 does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it.
or:
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it.
or:
(c) sub-s.424C (1) or (2) applies to the applicant.
In this case the Tribunal had formed the view that the material before it was not sufficient to allow it to decide the review in the applicant's favour and the Tribunal did, as I earlier indicated, invite the applicant to a hearing.
Turning to the applicant's claim in his amended application that an obligation arose under s.424A to provide him with the information that it had when it wrote to the applicant inviting him to attend the hearing, in my view that submission is misconceived. I have previously dealt with this matter in SZIGV v Minister for Immigration &Anor [2006] FMCA 1221 at [24]-[27].
In my view the obligation does arise at the time when the Tribunal applies the test under s.425 of the Act and invites the applicant to attend the hearing. In SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 Heerey J held that:
The Tribunal had not then reached the stage where it considered that the information in the protection visa application, or indeed any other information, would be a reason for affirming the refusal of the visa. It had not reached the decision to affirm (or set aside) the decision under review. All that had happened by this stage was that the Tribunal considered that the information then before it did not enable it to make a decision in favour of the applicant. The whole point of fixing a hearing as required by s. 425 was to obtain further information and in particular, information from the applicant himself which might or might not result in a decision to affirm the decision under review.
The applicant's contention misconceives the nature of the test set out in s.425 of the Act. The Tribunal had considered the information before it. The applicant had not consented to the Tribunal deciding the review without appearing before it, nor did sub-s.424C (1) or (2) apply to the applicant. Had either of those circumstances applied the applicant would not have been entitled to appear before the Tribunal.
The test that the Tribunal had to apply as that set out in the
sub-s.425(2)(a) which was whether it should decide the review in the applicant's favour on the basis of the material then before it where the Tribunal does not consider that it should decide the review in the applicant's favour on the basis of the material before it. The obligation at that stage is not to affirm the Delegate's decision. The obligation is to invite the applicant to attend the hearing, see sub-s.425(1).
The obligation under s.424A (1) does not arise until the Tribunal has considered the evidence before it and is deciding whether or not it should affirm the decision under review. It follows that the applicant's first contention must fail and there is no jurisdictional error arising out of any breach of s.424A of the Migration Act.
The applicant's amended application goes on to submit that the Tribunal failed to exercise its discretion to hold a hearing which is a discretion set out in sub-s.426A(2). Sub-s.426A(2) provides:
This section does not prevent the Tribunal from rescheduling the applicant's appearance before it or from delaying it decision on review in order to enable the applicant's appearance before it as rescheduled.
The applicant submits that the Tribunal on the non-appearance of the applicant at the hearing had a discretion to hold or reschedule the hearing and that discretion was enlivened by the non-appearance of the applicant. In my view, that submission misconceives the nature of the test under s.426A. The discretion is not to hold or reschedule the hearing. The discretion is either to reschedule the hearing or decide the application on the basis of the material before it without taking action to enable the applicant to appear before it.
In this case it is clear from the decision that the Tribunal did exercise its discretion under sub-s.426A (2). The hearing was scheduled for
17th November 2005. The Tribunal did not make its decision on
17th November. Even though the applicant had not appeared on
17th November the Tribunal did not make its decision until
24th November. As the Tribunal says at page 51 of the Court Book:
A week has passed since the hearing date with no word from the applicant.
It is quite clear that the Tribunal by delaying making its decision on the papers for a week had given the applicant time to telephone or write a letter or fax or come into the Tribunal to indicate that in some way he had been delayed or hindered or prevented from attending the hearing due to illness or injury or even late delivery of the letter. But the Tribunal heard nothing from the applicant for a week after the hearing.
Then, and only then, did the Tribunal proceed to make a decision.
It cannot be said that the Tribunal failed to exercise its discretion under s.426A. It cannot be said that the Tribunal did not consider exercising its discretion under s.426A. In my view, the actions of the Tribunal in delaying the decision for a week would have given an applicant more than sufficient time to contact the Tribunal to explain that some unforeseen circumstance had occurred. It would be unreasonable to expect the Tribunal to do more in the circumstances. Accordingly, the applicant's claim of a failure to comply with s.426A of the Act must fail.
The third ground claimed is that the Tribunal failed to complete its review of the applicant's application. I am not of a view that this ground has been made out. It is difficult to understand entirely what is meant by this claim from the particulars given. The applicant had claimed in his visa application that there were many Asians living in Japan who was mistreated like he was and that people from Europe and America do not suffer the same blatant racism in Japan as Asian people do.
That may or may not be the case, but if this claim is anything is it no more than some sort of an attempt at merits review or a challenge to the Tribunal's factual finding. The Tribunal, it will be recalled, was not convinced on the meagre evidence before it that the applicant's claim was one that arose from race. It appeared to the Tribunal on what little evidence there was that this appeared to be a dispute between the applicant and his employer and that there was no Convention basis.
It is well established that on judicial review a claim of merits review or a challenge to the factual finding of the Tribunal is not available. Findings of fact are matters for the Tribunal so long as there is evidence upon which those findings can be made.
In my view the reason that the applicant's claim was not successful was that the applicant did not attend the hearing and the Tribunal did not have sufficient information to be satisfied that he had made out a claim related to the Refugees' Convention. It is well established that where an applicant does not attend a hearing of the Tribunal and does not provide any further evidence to the Tribunal that the likely and possibly almost inevitable result is that the Tribunal will not be affirmatively satisfied under sub-s.36(2) that the applicant meets the criterion for a protection visa, (see SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16] NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 and SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [15] – [17]).
There is no jurisdictional error. The applicant is not legally represented in these proceedings, although he did have the benefit of legal advice from a solicitor who has experience in migration matters and was on the Refugee Review Tribunal legal panel.
I have considered whether the decision shows an arguable case for any other jurisdictional error that the applicant had not referred to, either orally or in the amended application that was prepared for him. I am unable to discern any.
I would also point out that after I heard a submission from the applicant and a submission in reply from Mr Wright, solicitor on behalf of the first respondent Minister, the applicant asked for an adjournment so that he may obtain legal representation. I did not grant that adjournment. My reasons for refusing the adjournment were that, in my view, that the applicant had had ample time to obtain legal representation at the hearing had he wished to do so.
He had had legal advice from a lawyer, a Mr Turner, who had prepared an amended application for him and even appeared for him on one occasion. The application was filed at this Court on 11th January 2006. It first came before the Court on 24th April 2006 where the applicant appeared. It was listed for final hearing on 5th May 2006. On that occasion Mr Turner, solicitor, appeared and sought and adjournment and subsequently prepared for the applicant an amended application.
On 22nd May 2006 the applicant appeared in person and I listed the application for hearing before me today. In my view the applicant has had ample time to obtain legal representation. It is not the practice in this Court that a matter should have three mentions or directions hearings or other court events prior to a final hearing.
Had it not been for the intervention of Mr Turner, who appeared for the applicant on 5th May 2006, the application would have been heard in full then. I granted the adjournment on the basis of what Mr Turner quite properly put to me, and Mr Turner quite properly drafted an amended application for the applicant which was filed by the next mention date and I then listed the matter for hearing today. There is no basis for granting an adjournment. The application for an adjournment is refused.
It follows that there is no jurisdictional error on the part of the Tribunal. As there is no jurisdictional the decision of the Tribunal is a privative clause decision as defined in sub-s.474(2) of the Migration Act. As it is a privative clause decision it is not subject to prohibition mandamus, injunction, declaration or certiorari in any Court on any account. The application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant had been wholly unsuccessful in his claim and in my view there is no reason why I should not make an order for costs on behalf of the first respondent Minister. The amount sought is $2,700.00 and in my view, especially allowing for the fact that there have been three previous Court events, the amount sought is appropriate.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 22 September 2006
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