SZIDK v Minister for Immigration

[2006] FMCA 1566

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIDK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1566

MIGRATION – Application to review decision of Refugee Review Tribunal – applicant did not attend Tribunal hearing – no jurisdictional error.

Migration Act 1958, ss.425, 426A, 441

NADK of 2002vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
SZCIA vMinister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
VNAA vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134

Applicant: SZIDK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG172 of 2006

Judgment of: Barnes FM

Hearing date: 16 October 2006

Delivered at: Sydney

Delivered on: 16 October 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 $3,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 172 of 2006

SZIDK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL 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 13 December 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, who claims to be a citizen of Malaysia, arrived in Australia in June 2005 and applied for a protection visa on 21 July 2005.  He claimed to have left Malaysia because he was a member of the ethnic Chinese community and had experienced discrimination and persecution, in particular a lack of access to a good education and a good job.  He claimed that Chinese were harassed by gangsters and that the police did not protect them, although this had not happened to him personally.  He also claimed that he was a Buddhist while the majority of Malaysian citizens were Muslim, although he did not claim to have suffered as a result.  His application was refused and he sought review by the Tribunal. 

3. In his application for review the applicant provided a residential address and a separate address for correspondence.  He did not nominate an authorised recipient.  The Tribunal wrote to the applicant on 10 October 2005 by letter sent by registered post to the address for service provided in his application for review advising him that it had considered the material before it but was unable to make a decision in his favour on this information alone and inviting him to attend a hearing on 21 November 2005 at a time and place specified.  It advised him that if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice.  I also note that this letter invited the applicant to send any new documents or written arguments he wanted the Tribunal to consider and that the Tribunal had already made a request for such further information in an earlier letter sent to the same address by registered mail on 16 September 2005.

4. In its reasons for decision the Tribunal recorded that no response was received to its letter of 10 October 2005, that the letter sent to the applicant had not been returned unclaimed, that the applicant had not provided a telephone number in the application for review and that he had no migration agent or authorised recipient. The applicant did not appear before the Tribunal on the day, time and place for the scheduled hearing and in those circumstances the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it pursuant to s.426A of the Migration Act 1958 (Cth).

5. The Tribunal set out the applicant’s claims.  It accepted on the basis of the copy passport he provided that he was a national of Malaysia.  However it found the claims he made about his circumstances were expressed very briefly and lacked crucial details.  In those circumstances it could not be satisfied that the applicant was a member of a minority group in Malaysia or that he had suffered harm amounting to persecution.  It noted that his complaints about his own experiences related only to his access to education and employment, that he did not claim that he was denied either but merely that the extent of his access was limited.  The Tribunal found it unclear from the applicant’s account whether the reasons for such difficulties were his claim of racial background or some other reason.

6. On the limited evidence before it the Tribunal found that it was unable to establish the relevant facts and hence was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention. 

7. The applicant sought review by application filed in this Court on 18 January 2006. The application relies on two grounds. No written submissions were filed in support of the application. The first ground is that there was a breach of s.424A(1) of the Migration Act. It is claimed that the Tribunal failed to give the applicant particulars of the information it considered would be the reason or a part of the reason for affirming the decision under review. No particulars are provided in support of this ground and there was nothing said by the applicant to elaborate on this ground.

8. As contended for the first respondent, no failure to comply with s.424A(1) is, in any event, apparent on the material before the Court. The concept of information in s.424A has been said to refer to knowledge of facts or circumstances communicated to or received by the Tribunal. It does not extend to the Tribunal’s subjective thought processes or determinations (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [206] per Allsop J). Moreover in this case it is clear that the application failed because the Tribunal was unable to be satisfied that the applicant met the criteria for the grant of the visa on the limited information the applicant had provided to it. In such circumstances, where the applicant fails because of a lack of information, s.424A has no application (see in particular SZCIA vMinister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 at [11] – [13] per Allsop J).

9. The second ground relied on in the application is that the Tribunal failed to invite the applicant to appear before it and so breached s.425(1) of the Act. Particulars of this ground are that the Tribunal claimed it wrote to the applicant on 10 October 2005 inviting him to appear before it. The applicant claimed he was unaware of such invitation. In oral submissions today the applicant in fact suggested that he often changed his address and had missed some letters in the past.

10. The first respondent relied on an affidavit sworn on 11 May 2006 by the solicitor with conduct of the matter, John Bird, annexing registered post records from the Tribunal which indicate that, consistent with s.441A of the Migration Act, the letter of 10 October 2005 was sent to the applicant by registered post within the time provided for in s.441A(4). There is nothing in the material before the Court to suggest that the Tribunal failed to meet its obligations in relation to the period of notice given or the other requirements of ss.425 and 425A. I note that the relevant part of the Migration Act provides for a system of deemed notification of correspondence sent by the Tribunal to an applicant so that where the requirements of s.441A are satisfied an applicant is taken (under s.441C(4)) to have received an invitation even if the invitation was not in fact received (see VNAA vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 at [15] and NADK of 2002vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 at [16]). No failure to comply with s.425 has been established.

11. The only other matter raised by the applicant in oral submissions today was a suggestion that he had had insufficient time to file additional material. He made his application to the Tribunal in September 2005. The Tribunal wrote to him on 16 September 2005 asking him to immediately send any documents, information or evidence he wanted the Tribunal to consider. There is nothing in the material before the Court to suggest that the applicant sought further time to provide information to the Tribunal. The Tribunal repeated its invitation in its letter of 10 October 2005. The Tribunal decision was not handed down until 13 December 2005, the applicant having been notified of that by letter of 21 November 2005. Insofar as it was intended to suggest that there was any failure of the Tribunal to comply with the procedures in the Migration Act in relation to the time given to the applicant, no such failure is established. As no jurisdictional error has been established the application must be dismissed.

RECORDED  :  NOT TRANSCRIBED

1. The applicant has been unsuccessful and the first respondent seeks that he meets her costs in the sum of $3,200.  The applicant told the Court that he had work difficulties, insufficient money and needed some time to get that much.  However his lack of funds is not a reason for departing from the normal rule that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the first respondent in determining when and how to seek to recover such costs.  The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  26 October 2006