SZIDT v Minister for Immigration
[2006] FMCA 816
•16 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIDT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 816 |
| 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 – the court does not review the delegate's decision – what was integral to the Tribunal's reasoning was the notified inadequacy of the information and the applicant's decision not to attend the Tribunal hearing – no reviewable error. PRACTICE & PROCEDURE – Costs – there are no grounds for making an order for costs in favour of a party who is represented and whose fees have been waived – the court will not make an order for costs of proceedings before the Refugee Review Tribunal – affidavit where deponent did not have an adequate command of English but no certificate by translator that a translation had been read or given to deponent – oral evidence – where applicant permitted to give oral evidence of material contained by affidavit. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 425A, 426A, 474 Federal Magistrates Court Rules 2001, r.15.27 |
| SZDQO v Minister for Immigration [2005] FMCA 326 cited SZEEU v Minister for immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 cited SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 applied NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 applied SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 applied |
| Applicant: | SZIDT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 192 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
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | 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 $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 192 of 2006
| SZIDT |
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 affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on
22nd December 2005.
Background
The applicant is a citizen of The People’s Republic of China who arrived in this country on 16th May 2005. He applied for a protection (class XA) visa on 25th July, but it was refused on 12th September 2005. The applicant sought a review by the Refugee Review Tribunal.
Refugee Review Tribunal review
The applicant lodged an application for review by the Tribunal on
30th September 2005. He attached two statements to his application, one dated 18th September 2005, and the other dated 18th July 2005, which was a copy of the statement he attached to his application for a protection visa.
In his application, the applicant gave a residential address in a suburb of Sydney to which I shall refer to as “Suburb 1” and an address for correspondence in another Sydney suburb, to which I shall refer as “Suburb 2”.
The Tribunal wrote to the applicant at his address in Suburb 1, which appears to have been returned unclaimed. The Tribunal then wrote to the applicant at his address for correspondence in Suburb 2 by means of a letter dated 1st November 2005, inviting him to attend a hearing on Wednesday 30th November 2005.
On 23rd November 2005, the Tribunal received a letter from the applicant in which he stated that he could not attend the hearing because he did not have a bridging visa and he was in fear of being detained. He asked that his hearing date be changed pending his receipt of a bridging visa.
The Tribunal wrote back to the applicant the same day advising him that the request for a later hearing date had been refused and the hearing would proceed on the original date. This letter was sent to the applicant by express post.
The applicant did not attend the hearing. The tribunal proceeded to deal with the application for review without giving the applicant a further opportunity to attend.
The Tribunal handed down its decision on 22nd December 2005.
The applicant did not attend.
The tribunal’s findings and reasons
The Tribunal’s findings and reasons are set out on pages 87 and 88 of the Court Book. The Tribunal was not satisfied that the applicant invoked protection obligations in Australia, “based on the insufficient detail he provided”.[1] In fact, based on the evidence, the Tribunal was not even satisfied that the applicant was a sincere and genuine Chinese Christian or that he was even a mere practitioner.
The Tribunal did not accept that the applicant had a real chance of persecution arising from his “alleged” religious opinion, or from any other ground, should he return to the People’s Republic of China.
The Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason and affirmed the delegate’s decision not to grant the applicant a protection visa.
Application for judicial review
[1] See Court Book page 87
The applicant commenced proceedings in this court on
19th January 2006. He sets out the following grounds:
a)The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
b)Breach of the rules of natural justice.
The applicant sets out the following particulars of those grounds:
(a) The DIMIA and Tribunal did not comply with Migration Regulation Schedule 1, 1303 and Schedule 2, subclass 030 when they considered my applications. When I lodged application for protect(ion) visa, according to Migration Regulation mentioned above, at the same time, I also lodged the application for bridge (sic) visa C.[2] However, while DIMIA refused to grant a protection visa to me, nor did they grant a bridge visa to me. Also, after I lodged the application for RRT review, on 22 Nov 2005 I again lodged an application to DIMIA for a Bridge visa in order for me to be temporary lawful status for ongoing review procedures. However, so far DIMIA did not give me any information regarding my second Bridge visa application. Meanwhile, due to my unlawful status, I could not or dare not attend RRT hearing arranged on 30 Nov 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 under review, I lost the chance to be granted a protection visa. So I strongly believe that neither DIMIA nor Tribunal followed Migration Act and Regulation to consider my application fairly, completely and clearly.[3]
[2] It is clear that the applicant was referring to a Bridging visa.
[3] Some spelling and punctuation errors have been corrected for the sake of clarity.
(b) Tribunal did not consider the information I provided.
The information should be regarded as the strong evidence in support of my claims.
The applicant seeks the following orders:
·An order that the decision of the Tribunal dated
22 December 2005 and decision of DIMIA dated
12 September 2005 need to be reconsidered.·An order that the RRT and DIMIA granted[4] a bridge visa to me before conclusion of the judicial review.
·An order that the respondents need to pay the cost of the application for Federal Court (Magistrates) Court and RRT review.
[4] sic
The applicant filed an affidavit in which he reiterated his claims set out in his application. In particular, he claimed:
On 30 November 2005, because I scared to be detained, I did not attend the hearing for RRT review.
The applicant does not speak English. He gave evidence with the assistance of an interpreter in the Mandarin dialect of Chinese.
His affidavit did not comply with Rule 15.27, in that it did not bear any certificate showing that anyone had translated the affidavit to the applicant when he swore it. I took the view that the applicant should be permitted to give oral evidence about the matters contained in his affidavit.
The applicant gave evidence on oath, saying that he received the letter from the Tribunal inviting him to attend a hearing, but he was afraid to go, because he did not have a bridging visa. He said that he feared arrest because of his unlawful status. In answer to a question from the bench that he could have been arrested at any time, the applicant said that was aware of that risk. The applicant did not give evidence of having made any attempt to contact the Department of Immigration and Multicultural and Indigenous Affairs[5] in order to regularise his visa status.
[5] The title of the Department has since been changed to Department of Immigration and Multicultural Affairs.
The respondents’ submissions
The First Respondent submitted that:
a)The Tribunal complied with its obligations under ss.425 and 425A and Regulation 4.35 by inviting the applicant to attend a hearing.
b)Whilst the applicant sought a postponement of the hearing on the basis of his unlawful status, being without a visa, he did not do so until three weeks after the Tribunal wrote to him.
c)The Tribunal replied to the applicant by express post on the same day it received his request, informing the applicant that the Tribunal intended to proceed with the hearing on 30th November.
d)
The Tribunal was not obliged to postpone the hearing upon the applicant’s request. The power to adjourn is discretionary
(s.427(1)(b); SZDQO v Minister for Immigration [2005] FMCA 326). There was no reason why the applicant would have been unable to give evidence.
e)The decision of the Tribunal was not based on any particular information. It was unable to be satisfied on the basis of the information before it that the applicant met the criteria for a protection visa and there are no breaches of s.424A or any SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs[6] issues.
[6] [2006] FCAFC 2
Conclusions
As a first step, it should be made clear that the court does not reconsider the decision of the delegate. The Refugee Review Tribunal reviewed the delegate’s decision, and the applicant’s belief that the delegate’s decision stands separately from the Tribunal’s decision is a misconception.
Second, the Court has no power to grant a Bridging visa, or any other visa. It is the Minister, or the Minister’s delegate, who grants visas, not the court.
Third, the application for costs by the applicant is misconceived.
The applicant is not legally represented in these proceedings, and has never been. The Court registry waived the filing fee on the application, so the applicant has not shown any entitlement to any order for costs if he were to be successful in his application.
It is quite misconceived to seek an order for costs in respect of the proceedings before the Refugee Review Tribunal, even if the applicant had actually attended the hearing.
Turning to the applicant’s claim for review of the Tribunal decision, I am not satisfied, after hearing the applicant’s oral evidence, that there is any merit in the reason that he gave for not attending the Tribunal hearing. It is quite clear that the Tribunal was not satisfied that the applicant met the criteria for a protection visa because of the paucity of the information available. It is well established that applicants who do not attend a hearing of the Refugee Review Tribunal, especially when the Tribunal has written to them and informed them that it was not able to make a decision in their favour on the information available, cannot expect a favourable outcome from that hearing (SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811; NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287; SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306).
There is no breach of ss.425 or 425A of the Migration Act.
The Tribunal invited the applicant to attend a hearing and gave him sufficient time to attend that hearing. It was the applicant’s decision not to attend.
The Tribunal was not obliged to adjourn or postpone the hearing as the applicant requested. The tribunal informed him in sufficient time for him to attend to give evidence, if he chose to do so.
As the Tribunal’s decision was based on the inadequacy of the information provided and not any piece of information that formed the reason or part of the reason for affirming the delegate’s decision.
There is no breach of s.424A of the Migration Act.
When the applicant did not attend the hearing, the Tribunal was at liberty to determine the application without taking any further action to permit the applicant to attend or give evidence. There is no breach of
s.426A of the Migration Act.
There is no jurisdictional error. Accordingly, the decision is a privative clause decision.
The application will be dismissed. There is no reason why the first respondent should not be entitled to an order for costs. The applicant is to pay the first respondent’s costs fixed in the sum of $4,500.00.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 June 2006
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