SZICG v Minister for Immigration
[2006] FMCA 738
•16 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZICG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 738 |
| 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 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZECF v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1200 SZEZI v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 Boakye-Danquah v The Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 438 SZBKB v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 1811 SZDXC v The Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 1306 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 |
| Applicant: | SZICG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG112 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 May 2006 |
| Date of last submission: | 16 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Sinnadurai |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG112 of 2006
| SZICG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refuge Review Tribunal affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa. The decision was handed down on 13th December 2005.
Background
The Applicant is a citizen of The People's Republic of China who arrived in Australia on 4th May 2005.
The Applicant applied to the Refuge Review Tribunal on 22nd August 2005 seeking a review of the delegate's decision. A copy of his application for review appears at pages 43 to 46 of the Court Book. He attached a copy of the delegate's decision to his application. The Applicant asked the Tribunal to send all correspondence to his advisor, Grace X Chen of Bankstown.
The Tribunal wrote to the Applicant care of Ms Chen on 14th September 2005 inviting him to attend a hearing to take place at 12 noon on Thursday 17th November 2005. No reply was received. The Applicant did not attend the hearing.
Later on the same day of the hearing, the Applicant's former advisor faxed a memorandum to the Tribunal, wrongly dated 16th October 2005, saying:
As the Applicant has decided not to attend his scheduled RRT hearing I am writing to formally inform you that I no longer act for this Applicant and his file with us has been closed.
The memorandum goes on to ask the Tribunal to send all further correspondence to the Applicant's home address. A copy of the memorandum appears at page 57 of the Court Book.
The tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 68 to 70 of the Court Book. The Tribunal noted that the Applicant had decided not to attend the hearing and that the Applicant's advisor no longer acted for him.
As the Applicant did not appear the Tribunal proceeded to make its decision on the review without taking any further action to enable the Applicant to appear before it under the provisions of s.426A of the Migration Act.
The Tribunal noted that the Applicant claimed a fear of persecution because of his belief in, and practise of, Falun Gong. However, the Tribunal went on to say:
However on the basis of the information provided by the Applicant I am unable to be satisfied that he has a well founded fear of persecution in the People’s Republic of China for reason of his belief in or practise of Falun Gong.
The Tribunal stated that the Applicant had not provided any information about a number of important factual matters including his practise of Falun Gong in The People's Republic of China prior to his departure; how he narrowly escaped arrest when his home was raided in early 2005; how he became a Falun Gong group leader; how the authorities became aware of his involvement with Falun Gong; whether the Applicant practises Falun Gong in Australia; and whether he attends Falun Gong demonstrations or protects. The Tribunal said:
On the basis of the scanty information provided by the Applicant and without the opportunity to obtain further information at a hearing I am unable to be satisfied that the Applicant is indeed a genuine and committed Falun Gong practitioner. In these circumstances I am not satisfied that the Applicant has a well founded fear of persecution in The People's Republic of China for reason of his belief in Falun Gong or any activities he has undertaken as a Falun Gong practitioner either in The People's Republic of China prior to his departure or since he has been in Australia.
The Tribunal affirmed the decision not to grant a protection visa.
The application for judicial review
The Applicant filed an application for judicial review in this Court on 12th January 2006. In his affidavit that accompanied the application the Applicant attaches a copy of the Tribunal decision and says:
I believe that there are sufficient grounds in this case for the Court to review it and to remit it to RRT.
On 28th April 2006 the Applicant submitted a document in the form of a letter to the Court making claims about a failure by the Department of Immigration and Multicultural Affairs to issue him with a bridging visa. He goes on to explain his failure to attend the Tribunal hearing in this way:
Meanwhile due to my unlawful status I could not or dare not attend RRT hearing arranged on 30 November 2005. I request RRT to reschedule hearing date however it was refused. Just because I did not attend the hearing which have been used as the reason or part of the reason for affirming the decision that is under review I lost the chance to be granted a protection visa.
The Applicant goes on to say that the Tribunal did not fully consider the information that he provided and refused his application without a hearing.
When the application came before the Court for the first time on 24th April 2006 the Applicant sought to obtain legal advice through the legal advice panel that is available to applicants to review RRT decisions. The Applicant has obviously been able to obtain advice because at the hearing today he tendered an Amended Application under the Migration Act. The Applicant told the Court that the document just set out his opinions which the lawyer translated into English, but it is clearly an Amended Application under the Migration Act.
The Applicant, in answer to questions from the Bench, told the Court that he did not attend the Tribunal hearing because all of his opinions had been written down in documents that had been provided. The Applicant later explained that he had been confusing the Refuge Review Tribunal hearing which he did not attend, with the Court hearing which he has attended.
The Applicant later told the Court that the Tribunal had erred in not giving him enough time to prepare his application to the Tribunal. He told the Court that he did not have the opportunity to hand all of the relevant information to the Refuge Review Tribunal. In answer to a question from the Bench as to what that information was, the Applicant referred to his Amended Application to this Court which had been prepared with the assistance of the panel legal advisor. Obviously that document had not been in existence at the time of the Tribunal hearing.
The Amended Application was filed in Court with leave and without opposition by the solicitor for the Respondent. It sets out two grounds: first the application claims that:
The Tribunal failed to carry out its statutory duty
and it appears from the particulars to refer to a breach of s.424A of the Migration Act; the second ground alleges that:
The Tribunal failed to exercise its discretion to hold a hearing.
The failure that is alleged is a failure under s.426A of the Migration Act to exercise discretion either to hold a hearing, as the Applicant claims, or reschedule the hearing. I will deal with each of these grounds in turn.
The solicitors for the Respondent Minister filed a Written Outline of Submissions on 11th May. Those submissions related to issues raised in the Applicant's original application and note the Amended Application. Nevertheless, the submissions are of some assistance in dealing with the Applicant's amended claim. In addition, the solicitor for the Respondent made an oral submission to the Court. The Respondent submits that there are no s.424A issues arising from the decision as the decision was based on the Tribunal's inability to be satisfied on the basis of the insufficient information provided to it. The submission goes on to say that the Tribunal did not rely on any particular information, rather indicated that it could not be satisfied on the ‘scanty information provided to it’.
In oral submissions the Respondent put that it is clear that the Tribunal did not rely on the content of any material as a ground for, or a part of the reason, for affirming the Tribunal's decision. I am referred to SZEZI v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29] and also SZECF v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1200 in respect of that point. In short, the Respondent submits that there was no error by the Tribunal when complying with s.424A of the Act.
The Amended Application refers to the letter under s.425 written to the Applicant, a copy of which appears at page 53 of the Court Book. That letter said:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The information, according to the Amended Application, was:
The Tribunal has before it the Department's file CLF 2005/36015, which includes the protection visa application and the delegate's decision record. The Tribunal also has had regard to the material contained in the Tribunal's file, N05/52288 including the application for review.
The Amended Application goes on to say that:
The Applicant's application for review contained only his name address etc. It did not contain any substantive information in relation to the Applicant's claims for a protection visa.
As the Applicant did not attend the Tribunal there was no information other than what was contained in the Department's file before the Tribunal. None of this information was given by the applicant to the Tribunal for the purposes of the review.
The Amended Application continues:
The Tribunal said at CB60 "The Tribunal only has the information contained in the written material before it from which to make a determination."
The Applicant submits that the Tribunal had information caught by s.424A and failed to give particulars of that information to the Applicant, explain why it was relevant and give the Applicant an opportunity to comment upon it.
The application continues:
The Tribunal should have included particulars of the information and explanation in its letter of 11 October 2005.
In my view the submission, for submission it is, is completely misconceived. There is no letter of 11th October 2005. If such a letter was ever written it is not in the Court Book.
The claim that the Applicant's application for review contained only his name and address and did not contain any substantive information in relation to the Applicant's claims for a protection visa, is wrong. As I said earlier, the Applicant attached the delegate's decision and its covering letter to the application for review.
If the Applicant means by the submission that the s.425 letter of 14th September 2005 should have included particulars of the information that the Tribunal had from which to make a determination, then this proposition is fundamentally misconceived. That is not the purpose of s.424A at all. Section 424A(1) makes it clear that what the Tribunal should give to the Applicant is particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review.
All that the letter to the Applicant inviting him to a hearing was doing was to say that there was not enough information to grant the application. The Tribunal had made it clear to the Applicant that without further information by means of further submissions or attendance at a hearing, there would not be sufficient information to allow the Tribunal to be satisfied that the Applicant met the criteria for the grant of the visa in accordance with its responsibilities under s.65 of the Migration Act. I note in any event that the Tribunal's letter of 14th September 2005 contained this advice:
Please bring to your hearing any evidence of your current practise of Falun Gong.
The second ground raised in the Amended Application is, to my mind, similarly misconceived. The allegation is that the Tribunal failed to exercise its discretion to hold a hearing. The Amended Application quotes from s.426A and says that the Tribunal had a discretion to hold or reschedule the hearing. The discretion was enlivened by the non-appearance of the Applicant.
The application goes on to say:
Where a discretion arises from a certain set of circumstances those circumstances alone are not relevant circumstances to take into account in the exercise of the discretion.
The Amended Application refers to the decision of Boakye-Danquah v The Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 438 which I have obtained. I am not satisfied that the decision in Boakye-Danquah is on point.
The Applicant submits that the Tribunal's only reason for making the decision without taking any further action to enable the Applicant to appear before it was that the Applicant had not appeared.
The application goes on to say that:
The Tribunal therefore did not consider exercising its discretion under s. 426A of the Act.
That submission is also misconceived. The submission is misconceived because it, first of all, fails to take heed of the wording of the section itself.
The submission, and it is a submission, overlooks the fact that it was not just the non-appearance by the Applicant that persuaded the Tribunal to make its decision without giving the Applicant a further opportunity to appear before the Tribunal to give evidence. The facts are somewhat different. As I said earlier, the applicant did not attend the hearing that was scheduled. Later that same day, 17th November, the Tribunal received a faxed message from the Applicant's migration advisor indicating that he had decided not to attend the Tribunal hearing.
Even so, the Tribunal did not make its decision on the day. The hearing was scheduled for 17th November 2005. By the end of that day the Tribunal was aware that the Applicant's migration advisor had said that he had decided not to attend. The Tribunal did not make its decision until 22nd November 2005 and did not hand down its decision until 13th December 2005. If there had been some reason why the Applicant had been delayed, or prevented, or hindered from attending, there was ample time for him to contact the Tribunal to explain what had happened.
In my view, the Tribunal in deciding to deal with the matter under s.426A of the Migration Act has complied with subsection (2) of that section which says:
This section does not prevent the Tribunal from rescheduling the Applicant's appearance before it, or from delaying its decision on the review in order to enable the Applicant's appearance before it as rescheduled.
In my view, there is no error in the Tribunal's decision to proceed under the provisions of s.426A of the Migration Act and the Tribunal's discretion has not miscarried.
As to the compliance generally of the Tribunal of ss.424A and 426A of the Act, I am mindful of the decisions of Bennett J in SZBKB v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 1811 at [15], [16] and [17] and Hely J in SZDXC v The Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 1306 at [16].
There is no jurisdictional error. I have read through the decision thoroughly and there is no other error that the Applicant has not referred to and I am satisfied from my independent reading that there is no jurisdictional error that I can discern.
As there is no error the decision is a privative clause decision under the provisions of s.474 of the Migration Act.
The application is dismissed.
I also note that the title of the First Respondent Minister has changed to Minister for Immigration for Multicultural Affairs.
I note that the Applicant says that the costs order is not reasonable. In my view, as the Applicant has been wholly unsuccessful in his claim and the Minister has been obliged to prepare this matter for a defended hearing, there is no reason to depart from the usual practise that costs follow the event.
I am also satisfied that the sum of $5,000.00 is an appropriate figure.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 23 May 2006
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