SZICH v Minister for Immigration - [2006] FMCA 1360

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZICH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1360

MIGRATION – Review of decision by Refugee Review Tribunal – applicant completed ‘Response to Hearing Invitation’ form informing Refugee Review Tribunal that he did not wish to attend hearing before Refugee Review Tribunal – applicant failed to attend hearing before Refugee Review Tribunal – whether Refugee Review Tribunal breached s.424A(1) Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2); 65(1); 424A; 424A(1); 425; 425(2)(b); 425A; 474; pt.8 div.2
Federal Magistrates Court Rules 2001, sch.1

SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78
SZEGX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 166
SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
SZBZO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 494

Applicant:

SZICH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG114 of 2006

Judgment of:

Emmett FM

Hearing date:

1 September 2006

Date of last submission:

1 September 2006

Delivered at:

Sydney

Delivered on:

1 September 2006

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Ms L. Gazi, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG114 of 2006

SZICH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 November 2005, that decision having been notified to the applicant on 19 December 2005. The Tribunal decision affirmed a decision of the delegate of the first respondent (“the Delegate”) dated 14 July 2005.
The applicant is a 40 year old male who claims to be a citizen of the People's Republic of China (“the PRC”) and of Han ethnicity and Falun Gong faith. The applicant has a wife and son who remain in the PRC.
The applicant arrived in Australia on 4 April 2005, having legally departed from the PRC on a passport issued in his own name and a Temporary Business subclass 456 visa issued on 23 March 2005.
RECORDED : NOT TRANSCRIBED
On 4 May 2005, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).
In his protection visa application, the applicant claimed that he feared persecution by Chinese authorities because he is a Falun Gong practitioner and activist. The applicant claimed that his house was ransacked on 24 March 2005 during a secret meeting to discuss protests and that he was under surveillance and that he would be persecuted to death in the PRC.
On 14 July 2006, the Delegate refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 22 August 2005, the applicant lodged an application for review of the Delegate's decision by the Tribunal.
The applicant identified an authorised recipient in respect of correspondence with the Tribunal.
On 26 August 2005, the Tribunal wrote to the applicant at the address of the authorised recipient confirming that the application for review had been received and requesting the applicant to immediately send any documents, information or other evidence he wished the Tribunal to consider. That letter also informed the applicant about where he may access translating and interpreting services.
On 14 September 2005, the Tribunal wrote to the applicant at the address of the authorised recipient, informing 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 this information alone.

The letter went on to invite the applicant to come to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The letter identified the time, date and place of the hearing and further notified the applicant that the Tribunal would only change the hearing date for good reason and that if the applicant thought he may be unable to attend the hearing, he should contact the Tribunal immediately, and that if he did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice.
The letter went on to invite the applicant again to send any new documents or written arguments that he may wish the Tribunal to consider and to inform the Tribunal, by completing a ‘Response to Hearing Invitation’ form, of whether or not he intended to attend the hearing. Again the letter gave details to the applicant of translating and interpreting services available to him.
On 16 October 2005, the applicant’s authorised recipient wrote to the Tribunal, informing the Tribunal that the applicant had decided not to attend the hearing and also informing the Tribunal that the authorised recipient, being a migration advisor, no longer acted for the applicant and that any further correspondence should be sent to the applicant directly at his residential address, being the same address that is identified on the application for review.
The Tribunal, in its decision, observed that the applicant had not provided any additional information in support of his application for review and did not wish to attend a hearing. The Tribunal noted that it had determined the application on the basis of the written material submitted by the applicant.
Pursuant to s.425 of the Act, the Tribunal must invite the applicant to appear before it, to give evidence and present arguments, such notification to be in accordance with s.425A of the Act. However if the applicant consents to the Tribunal deciding the review without the applicant appearing before it, pursuant to s.425(2)(b) of the Act, the Tribunal is not obliged to invite the applicant to a hearing.
However, the Tribunal, in compliance with ss.425 and 425A of the Act, did invite the applicant to a hearing and it was in response to that invitation that the applicant, through his advisor, informed the Tribunal that the applicant did not intend to attend the hearing. In those circumstances, s.425(2)(b) of the Act entitles the Tribunal to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The applicant, this afternoon, has not made clear which particular application he relies upon as his application before this Court.
He filed an application on 12 January 2006, which disclosed the following grounds:
“1. 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.
2. The Tribunal misconstrued or misapplied the law concerning its determination.
3. The Tribunal erred in making the refusal decision without giving me sufficient opportunity to fully present my case properly.”
The applicant attended a directions hearing on 9 February 2006, at which he was directed to file and serve an amended application by

27 April 2006 and any other evidence upon which he relied.
On 28 April 2006, the applicant filed an amended application in the following terms:
“I, [Applicant], of [Applicant’s address], currently unemployed, say as follows:
1.   On 9 February 2006 I attended a Directions Dearing (sic) at the Federal Magistrates Court. By consent the Court orders that: “The applicant file and serve an amended application giving complete particulars of each ground of review relied upon by 27 April 2006.” This “Amended Application” is filed and served in accordance with the Order.
2.   A final hearing has been scheduled to take place on 6 December 2007 at 10:15am.
3.   It is very odd that I have been requested to provide an amended application before I obtain free legal advice. This is unfair to me. I feel that I have been singled out and have been treated differently.
4.   The Tribunal misconstrued and misapplied the law concerning its determination.
5.   Many of my important claims, facts and evidence were not considered and assessed carefully when the decision was made by RRT. I do not have funds to prepare the RRT transcript. I would like RRT or the 1^st Respondent to provide me a RRT transcript if possible.
6.   The nature of refugee claims involves risky factors when hard evidence was to be transferred from China to Australia. When some hard evidence was not yet available, I should be given some opportunities and benefits of doubts (sic) and my written and oral claims should be treated as evidence and be given sufficient weight.
7.   I need time to engage a proper solicitor to prepare for the case. I have not yet received any free legal advice from the lawyer appointed or recommended by the Court. This is unfair to me. I await an appointment from the “scheme”. I am not a legally trained person. I DO need legal advice to prepare legal documents.”
The applicant was invited this afternoon to make whatever submissions he wished in support of his application. Each of the grounds was read to him and he was invited to make any further submission or that he wished. The applicant responded that he did not know how to put any submissions into words, that he had nothing to say, that he couldn't read English, that he couldn't find anyone to help him and that he is just afraid of going back to the PRC.
I explained to the applicant that he has had more than six months to inform himself about the process, his rights and to have any documents translated for him.
The applicant, in his amended application, complains that he had not received any free legal advice.
RECORDED : NOT TRANSCRIBED
However I note that on 6 April 2006, the applicant was referred to the Legal Advice Scheme. In any event, there is no right or entitlement to free legal advice from lawyers.
RECORDED : NOT TRANSCRIBED
The amended application also notes that the applicant would have liked the first respondent to provide him with a transcript if possible. There is no obligation on the first respondent to provide a transcript and in the circumstances where no hearing took place, one could only assume there would not have been a transcript to produce in any event.
The grounds, such as they are identified by the applicant in both the application and amended application, contain no particulars and none were given today either orally or by way of written submissions.
The Tribunal had regard to the applicant's claims as identified in his protection visa application. However, on the basis of that information it was not able to be satisfied that the applicant had a well founded fear of persecution in the PRC for reasons of his belief or practice in Falun Gong.
The Tribunal noted various concerns it had arising out of the applicant's material. For example, it noted that the applicant had provided no details of his practice of Falun Gong in the PRC prior to his departure, such as, for how long he had practiced, what form his practice took, why he became devoted to Falun Gong and what, if any, difficulties he had with the authorities because of his practice of Falun Gong. The Tribunal noted that the applicant had provided no further details of his claim of having his home raided in early 2005 and noted that the applicant gave only "scanty details" about his practice in the PRC, and no information about any current practice of Falun Gong in Australia.
The Tribunal noted that it was unable to obtain any further information from the applicant where he had chosen not to attend the hearing.
The applicant had been informed by the Tribunal by its letter dated

14 September 2005 that the material presently before it was insufficient to enable the Tribunal to make a decision in his favour.
Pursuant to ss.65(1) and 36(2) of the Act, it is for the applicant to satisfy the decision maker that he meets the criteria required for the grant of a protection visa.
The Tribunal was simply unable to reach the requisite state of satisfaction on the evidence before it and the conclusions reached by the Tribunal were open to it on the material and evidence before it.
Counsel for the first respondent has submitted that there is no issue arising in relation to s.424A of the Act because the reason for the Tribunal's decision was the vague nature of the applicant's claims and the inability of the Tribunal to enquire of them further with the applicant at a hearing. In accordance with authorities, this is a thought process and not information within s.424A(1). The authorities referred to by the first respondent in his written submissions support that proposition and it is indeed correct (SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 (Bennett J) at [23]; SZEGX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 166 (Moore J) at [10]; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 (Allsop J) at [9-14]; SZBZO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 494 (Jacobson J) at [48-49].)
In the circumstances, the decision of the Tribunal is not affected by error and is a privative clause decision. Accordingly pursuant to s.474 of the act, this Court has no jurisdiction to interfere and the applicant's proceeding is dismissed.
ORDERS DELIVERED
The first respondent seeks costs fixed in an amount of $4000. I note that the amount sought is, in fact, less than is provided for in sch.1, pt.2, r.1(c) of the Federal Magistrates Court Rules 2001 where a proceeding is concluded at a final hearing. In the circumstances I order that the applicant pay the costs of the first respondent fixed in the amount of $4000.
ORDERS DELIVERED

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 15 September 2006