SZIDD v Minister for Immigration
[2006] FMCA 571
•31 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIDD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 571 |
| 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.36, 65, 426A, 441A,474 Federal Magistrates Court Rules 2001 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 |
| Applicant: | SZIDD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 159 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 31 March 2006 |
| Date of Last Submission: | 31 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That 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 $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 159 of 2006
| SZIDD |
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 Refugee Review Tribunal that was signed on 30th November and handed down on
20th December 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is a citizen of the People's Republic of China who arrived in Australia on 11th August 2002. On 26th July 2005, nearly three years after he entered the country, the applicant applied for a protection (class XA) visa. On 25th August 2005, although the covering letter is incorrectly dated, a delegate of the Minister refused the application.
The applicant applied for review of that decision on
26th September 2005. In a statement attached to his application for review the applicant claimed that he had started to practise Falun Gong after he arrived in Australia. He explained the delay in applying for a protection visa by stating that he initially believed that the People's Republic of China government would not know that he practised Falun Gong but he had later heard that China has many spies in Australia.
He believed that his activities in Australia would be recorded and he would be arrested and persecuted upon his return to China.
The Tribunal wrote to the applicant on 26th October 2005 stating that it 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. Accordingly the Tribunal invited the applicant to attend a hearing at
12 noon on Friday, 25th November 2005 so that he could give oral evidence and present arguments in support of his claims. According to the Court book the Tribunal did not receive any reply to the hearing invitation. The applicant did not attend the hearing. As he had given no reason for failing to appear, and had not requested that the hearing be re-scheduled, the Tribunal decided to determine the matter without taking any further action to allow or enable the applicant to appear in accordance with the provisions of s.426A of the Migration Act 1958.
The Tribunal noted the applicant's written statements but expressed the opinion at page 64 of the Court book that the material put forward by the applicant was:
Very scant and lacks detail.
The Tribunal was not satisfied from the brevity and generality of the applicant's material that his claims were truthful and made this finding, which appears at page 65 of the Court book:
While there is clearly material which could indicate a well founded fear of harm amounting to persecution for some Falun Gong practitioners in or returning to China, the evidence as to this applicant's involvement and interest does not satisfy the Tribunal that there is a real chance of his suffering such harm in the foreseeable future.
The Tribunal held that the applicant must be refused the grant of the visa sought under s.65 of the Migration Act and the delegate's decision to that effect was affirmed. The applicant filed an application at this Court on 16th January 2006. His grounds for relief are:
i)a breach of the rules of natural justice;
ii)procedures required by law were not observed; and
iii)improper exercise of the power conferred by the Act.
Particulars he gives in his application do not fully address the grounds that he gives. Essentially the applicant claims that:
a)the Tribunal did not provide him with details of independent country information; and
b)the Tribunal did not fully consider the information that he gave.
The applicant explained to the Court that he did not attend the hearing of the Tribunal because he was not well. He did not think that he told the Tribunal that he was not able to attend. The particulars in support of the applicant's grounds are five in number.
First, the applicant claimed that the Tribunal had failed to give him the important information completely and clearly before or after the hearing which have been used as the reason, or part of the reason, for affirming the decision under review. The solicitor for the respondent submits that this ground has not been particularised and is meaningless. I agree with that submission as it is quite clear that the Tribunal was not satisfied that the applicant had provided sufficient information to satisfy the Tribunal that the applicant met the criteria for a protection visa under s.36 of the Migration Act.
It is clear from s.65 of the Migration Act, to which the Tribunal referred, that if the applicant satisfies the Tribunal that he meets the criteria for a visa, then the Tribunal must grant the visa. It follows, however, that if the applicant does not satisfy the Tribunal that he meets those criteria, then the Tribunal must dismiss the application. That is clearly the case in the application before me.
In ground (b) the applicant said that the Tribunal failed to assure that he understood why independent country information was relevant to the review. Whilst this, together with particular (a) may be an attempt to refer to s.424A of the Migration Act, not only is there no particularisation of that claim but that the reason why the Tribunal found against the application was insufficiency of information.
There is no breach of s.424A of the Migration Act.
The application said in particular (c) that it was impossible for him to have a fair chance to comment on the independent country information before or after the hearing. If the applicant had attended the hearing he would have had the opportunity to comment on material put to him by the Tribunal Member. In any event it is submitted on behalf of the respondent Minister, and I believe correctly, that the argument is misconceived for two reasons:
a)the independent country information used by the Tribunal was not the reason or part of the reason for affirming the decision of the delegate; and
b)in any event general country information falls within the exception at sub-s.424A(3)(a) of the Migration Act.
As I said, it was not the nature of the information that brought about the rejection of the application, but the lack of it. In respect of ground (d), or particulars (d), the applicant said that he believed that the Tribunal should have provided him with complete independent country information or the particular information which would be the reason, or part of the reason, for affirming the decision under review by giving it to him by one of the methods specified in s.441A of the Migration Act. That is not particularised and in any event there is no obligation on the Tribunal to provide written country information to the applicant before or after the hearing. Section 441A of the Act merely sets out the methods by which the Tribunal may send a document to a party.
In particulars (e) the applicant said that the Tribunal did not fully consider the information that he provided. He said that the information should be regarded as strong evidence in support of his claim. In my view that is no more than a request for a merits review and there is no ground for the Tribunal to make a finding of any jurisdictional error.
The main reason why the applicant's claim was unsuccessful was because he did not attend the Tribunal hearing. The applicant said that he was not well on the day but he should have realised the importance of attending a hearing and he should have tried to inform the Tribunal that he could not attend because of illness. If he had seen a medical practitioner and obtained a medical certificate, and if he had acted promptly, he may well have been able to persuade the Tribunal to
re-schedule the hearing so that he could attend.
As the Honourable Bennett J said in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811:
By not attending the hearing the applicant has in effect waived his opportunity to provide further comment on adverse information.
In this case the applicant, having been made aware of the fact that the Tribunal was not able to make a decision in his favour based on the information that he had, has elected not to attend and therefore not to provide the Tribunal with more information which may or may not have been sufficient to persuade the Tribunal to grant his application. There is no jurisdictional error. I have read through the decision myself in an effort to ascertain whether any jurisdictional error appears that may have been not apparent to the applicant. I cannot discern any error.
There is an application for costs. The applicant has been wholly unsuccessful in his claim. I see no reason why the general practice that costs follow the event should be departed from in this case.
The respondent Minister seeks the sum of $3,000.00 which, to my mind, is within the range envisaged by the Federal Magistrates Court Rules 2001.
I notice that the Minister's title has been changed. The title of the first respondent is changed to the Minister for Immigration and Multicultural Affairs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 20 April 2006
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