SZIEQ v Minister for Immigration

[2006] FMCA 921

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIEQ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 921

MIGRATION – RRT decision – Chinese national claiming persecution for political opinions – did not attend Tribunal hearing – blamed agent – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.05, 44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.422B, 424A(1), 425, 425(2), 425A, 426A, 426A(1), 441G(1), 476

Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73
SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110
SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant: SZIEQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG255 of 2006

Judgment of: Smith FM

Hearing date: 14 June 2006

Delivered at: Sydney

Delivered on: 14 June 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr B Cramer

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed. 

2. The applicant must pay the first respondent’s costs in the sum of $2,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG255 of 2006

SZIEQ

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 under r.44.05 of the Federal Magistrates Court Rules 2001 (Cth) seeking an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 22 December 2005.  The Tribunal affirmed the decision of a delegate refusing to grant a protection visa to the applicant. 

2. The application was returnable before me at a first court date on 22 February 2006. On that occasion the applicant appeared, and was assisted by a Mandarin interpreter. The nature of the proceedings was explained to him by myself and in an information sheet. I made orders permitting the applicant to receive free legal advice and to file an amended application and any evidence by way of affidavit after receiving a bundle of relevant documents. The matter was set down today for a hearing under r.44.12, and I warned the applicant that the application might be dismissed if I were not satisfied that it had raised an arguable case for the relief claimed.

3. The applicant has filed an amended application, but it substantially repeats the grounds set out in the original application with an additional ground to which I shall refer below.  No evidence was filed by the applicant to explain his absence from a hearing to which he was invited by the Tribunal. 

4. The applicant’s application for a protection visa was lodged with the assistance of a migration agent, Michael Xiao.  It contained extremely short insertions explaining why the applicant was seeking protection in Australia so that he did not have to return to his country of nationality, The People’s Republic of China.  The applicant said: 

   40Why did you leave that country? 

   I left China because of the absolute dictatorship of the Chinese communist party, controlling and dictating humanitarian issues.  There are a large number of corruption within the officials and is harming the billions of Chinese people.  I can’t stand this situation, I hate the political system of China and wrote publishing materials criticizing local government concerning the exploitation of peasants.  My writing expressed discontent with the government and the local authority.  Police was trying to arrest me and I was forced out of China.  I came to Australia hoping to seek protection from the Australian government. 

5. The applicant’s further responses in the form were in similar language, without any details explaining what his conduct had been in China and why he should be believed.  No supporting material was presented to the Department, nor subsequently to the Tribunal. 

6. The application was accompanied by a certificate by the applicant in English and Chinese script confirming that: 

   My migration agent discussed my case with me and he advised me that in his opinion my case was unfounded and had no hope of success.  I understand his explanations.  But I strongly believe I deserve the protection from the Australian government.  It’s me to instruct my agent to lodge the application.  

7. A similar certificate accompanied the application for review of the delegate’s refusal for the visa application.  The certificate accompanying that application said: 

   My agent had explained to me that I had no chance to win the case and suggested me not to lodge any further.  But I believe I need the protection from the Australian government.  It is me to ask my agent to fill in the form and lodge application for review on my behalf.  I am gathering more evidence to support my claim. 

8. That letter also contains statements in Chinese characters, which it is reasonable to assume were to the effect of the English paragraph.  The application for review appointed Michael Xiao as the applicant’s authorised adviser, and requested the Tribunal to send correspondence about the application to his adviser only. 

9. The Tribunal sent to that adviser at his identified postal address a letter dated 17 October 2005.  The letter told the applicant: 

   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. 

   It invited the applicant to attend a hearing on 2 December 2005, and told him that if he did not attend, the Tribunal could make a decision on his case without further notice. 

10. In its statement of reasons the Tribunal referred to that letter and said: 

    No response was received.  The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

11. In its “Findings and Reasons”, the Tribunal referred to the absence of details to support the claims made in the protection visa application, and the absence of further evidence presented to the Tribunal.  The Tribunal concluded:  

    The Tribunal is not satisfied on the basis of the vague and unsubstantiated assertions before it that the applicant has ever published material critical of PRC authorities, or that he has ever come to the adverse attention of police or other authorities because of any particular political opinions he may have.  It is not satisfied that he is wanted by the authorities in China or that he would face arrest, detention or other forms of harm at the hands of the authorities were he to return to China in the reasonably foreseeable future.  The Tribunal is therefore not satisfied that he has a well‑founded fear of persecution in China. 

12. In my opinion, no arguable ground of jurisdictional error arises from either the procedures or the reasoning followed by the Tribunal in this case. 

13. The application and amended application for review have presented six grounds which are claimed to show error of law constituting jurisdictional error and “procedural error … constituting an absence of natural justice”. 

14. Ground 1 is that the Tribunal failed to comply with its obligations under s.425 to invite the applicant to a hearing, by reason of the absence of one of the circumstances in s.425(2) which exempts the Tribunal from the obligation to send an invitation. However, in my opinion that contention plainly has no merit. It is undoubted that the Tribunal did post an invitation to the applicant’s authorised recipient which complied with its duties under ss.425 and 425A.

15. Ground 2 claims that the Tribunal failed to comply with obligations under s.425A because the letter of invitation was not posted to the applicant’s own residential address. However, in my opinion this does not provide an arguable ground of jurisdictional error. Section 441G(1) required the Tribunal to send the notice to the applicant’s notified authorised recipient, “instead of the applicant”.  The Tribunal has followed that procedure, and in my opinion no arguable error has been raised by the applicant in relation to that procedure. 

16. Ground 3 claims that the Tribunal failed to comply with obligations to serve a written invitation for comment under s.424A(1) because:

    … 

    b.The issue is that, in my case, the Tribunal found that it had not received any responses from me or my migration agent since it had sent me an important notification about the hearing; and the Tribunal then regarded this piece of information as a main reason to negatively assess my application.  However, before it made its final decision, the Tribunal:-

    i.failed give to me, in the way that the Tribunal considers appropriate in the circumstances, 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; and

    ii.failed ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and

    iii.failed to invite me comment on it. 

17. In my opinion, it is not reasonably arguable that the Tribunal was under any obligation to serve a notice under s.424A(1) in this case. The Tribunal’s reason for affirming the delegate’s decision was not based on “information”, but upon its inability to be satisfied by the “vague and unsubstantiated assertions” made in the visa application.  It is now very well established that reasoning in that manner does not reveal failure to follow obligations under s.424A (c.f. SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, and SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801).

18. Ground 4 argues:  

    4.The Tribunal ignored important evidences while it has made its decision 

    a.It is apparently that I have been cheated by my migration agent who has obviously failed to comply with its obligations under the Act or regulation.  At least, the migration agent failed to inform me the important notice about the Tribunal’s hearing; and I have further discovered that the migration agent did not present my claims, on my behalf, correctly and completely.  He even never properly and clearly explained to me necessary legal procedure about my application. 

    b.The issue is that, in my case, the Tribunal, according to its decision, has found that my migration agent did not response the above–mentioned invitation either, and the Tribunal, apparently, should make, at least, a contact with the migration agent and ensure whether or not I, as the applicant of the review application, received such an important notice; and particularly ensure whether or not I would attend the Tribunal’s hearing.  Unfortunately, the Tribunal failed to do so. 

19. The assertion that the applicant was “cheated by my migration agent” has not been given substance in any affidavit filed by the applicant, nor has what he has said from the Bar table to me today explained what he meant.  He did, however, contend that he was not told about the invitation to the hearing by his agent, and in that sense felt “cheated”. 

20. However, whether this is true or not is not a matter which needs resolution in this proceeding. Assuming the factual contention of the applicant to be true, it would not show an arguable jurisdictional error. There is now clear authority that the Tribunal’s power to proceed under s.426A(1) is available regardless of whether an applicant received actual notice of an invitation, and regardless of the reasons for him not receiving that notice, at least in circumstances such as the present (see VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14]‑[15]). It is not contended by the applicant, and there is no evidence suggesting, that the Tribunal was on notice of any circumstances which should have caused it to decline to exercise the power under s.426A(1) or give further consideration to any matter. In my opinion, the Tribunal’s power to proceed under s.426A(1) was unarguably available to it, and there is no arguable ground that its discretion miscarried shown in the application.

21. The second contention under this ground, that the Tribunal was under some obligation to “at least, make a contact with the migration agent”, has in my opinion no arguable basis in the provisions of the Migration Act. It is now well established that the Tribunal’s obligations in respect to inviting applicants to hearings are subsumed within the procedures under ss.425, 425A and 426A, and there is no room for principles of procedural fairness to imply any additional or contrary obligations (see s.422B, and Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39], and SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 at [17]).

22. Ground 5 in the amended application contains general claims that the Tribunal “erred in a number of respects”.  Particulars of these allegations are not provided.  Although they are framed in terms of possible jurisdictional errors, in my opinion they are not shown to have any substance.  It is clear in my opinion that the Tribunal has been aware of the refugee claims made by the applicant in his visa application, and has addressed those.  As I have explained above, it was unable to be satisfied that they were true or had any substance. 

23. Ground 6 in the amended application is a plea for the Court to redress what is perceived to be unfair treatment.  However, as I have explained to the applicant, that does not provide a ground of itself for the Court to grant the relief sought in the application. 

24. The application, the amended application and the submissions made by the applicant today to me have not satisfied me that the application has raised an arguable case for the relief claimed. I consider this is a suitable case for the Court to exercise the interlocutory power to dismiss the application under r.44.12(1)(a).

I certify that the preceding twenty‑four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  5 July 2006