SZIGG v Minister for Immigration - [2006] FMCA 1804

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIGG v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1804

MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error – Applicant failed to respond to invitation to attend Tribunal hearing – Tribunal decision made without hearing – whether any obligation to provide opportunity to comment before decision handed down – no error.

Migration Act 1958, ss.424A, 425, 452A, 426A

SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 11
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225

Applicant:

SZIGG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 343 of 2006

Judgment of:

McInnis FM

Hearing date:

4 December 2006

Delivered at:

Sydney

Delivered on:

4 December 2006

REPRESENTATION

Applicant:

In person (assisted by interpreter)

Counsel for the First Respondent:

Ms K. Hooper

Solicitors for the First Respondent:

Phillips Fox

ORDERS

Leave is granted to the Applicant to amend the name of the First Respondent by deleting the words “and Indigenous”.
The Application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $2.400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 343 of 2006

SZIGG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter the Applicant, who is self-represented, though assisted by an interpreter, relies upon an Amended Application filed 30 May 2006. The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 8 December 2005.
In its decision the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a protection visa.
The Applicant is a male citizen of the Peoples Republic of China (China) who arrived in Australia on 16 July 2005. He applied for a protection visa on 15 August 2005. The application was supported by a statement from the Applicant. A delegate of the First Respondent refused the application on 15 September 2005 and the Applicant then applied to the Tribunal for review of that decision.
The Tribunal by letter dated 31 October 2005 (Court Book p.73) invited the Applicant to attend a hearing. The hearing was scheduled for 8 December 2005. The Applicant failed to attend the hearing and did not otherwise respond to the invitation despite the fact that the letter was forwarded by registered post to the mailing address given by the Applicant in his application for review. It is perhaps not surprising that the Tribunal then proceeded to consider the application in the absence of the Applicant on 8 December 2005.
It is noted that the letter dated 31 October 2005 had enclosed with it a ‘Response to Hearing Invitation Form’, a brochure entitled “What is a Hearing?” together with multilingual advice. I am satisfied that the Tribunal in issuing the invitation has complied with the obligations it has pursuant to the relevant provisions of the Migration Act 1958 (the Migration Act). In particular, I am satisfied on the material before me that the obligations pursuant specifically to ss.425 and 425A of the Migration Act have been satisfied. I am further satisfied that the Tribunal was entitled to proceed pursuant to s.426A of the Migration Act to decide the application without taking any further action to enable the Applicant to appear before it at the scheduled hearing on

8 December 2005.
Before turning to the Amended Application, it is noted that the Applicant made the observation during his submissions to the Court that he did not have the opportunity to respond to the decision of the Tribunal. It was noted that he did not attend the Tribunal hearing, nor did he reply to the hearing invitation, and he indicated in answer to a question from the Court that he took the view that he may have had the opportunity to comment on the Tribunal’s decision in advance of the decision being made. I interpolate in advance of the decision being made as logically that would be the only possible course perceived by the Applicant to be open to him rather than responding to the invitation to attend a hearing or indeed attending a hearing.
For applicants to make an assumption that beyond receiving an invitation to attend a hearing, an opportunity may be given to comment on a Tribunal’s findings and reasons in advance of the decision being handed down is an unwise assumption to make. It is unwise in the circumstances where I am satisfied that the invitation and associated documents make it clear that the Tribunal may well proceed to consider the matter adversely in the absence of the Applicant. There is indeed no requirement for the Tribunal to do anything other than invite the Applicant to attend the hearing and give the Applicant an opportunity to be heard at that hearing and certainly no requirement to then forward reasons for decision for comment by an Applicant. Hence, the Applicant’s perception in this case, unfortunately for the Applicant, is clearly wrong and has no basis in law.
In this matter, as indicated earlier, the Applicant claimed to be a national of China and claimed to have been a builder in China and to have seen “corruption everywhere”. According to the Tribunal’s decision, under the heading “Claims and Evidence” it appears that the Applicant claimed to have become very active to ‘ask for a better political system of democracy in China’. He claimed that in 1989 he:
“… actively supported the student’s movement … [and] donated money to students in Beijing and [he] became a head to raise the money. One month later [he] became a target for the Chinese authorities.”
The Applicant claimed the Chinese authorities investigated him because he had been ‘the leader to raise funds for the students’ and he claimed to have suffered ‘serious mental torture from the Chinese authorities’.
The Tribunal in its decision then further sets out the claims of the Applicant and under the heading “Findings and Reasons” accepts that the applicant was a national of China as claimed, but then significantly goes on to state the following:-
“However, the mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is’ well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant.
That said, based on the insufficient detail he provided, the Tribunal is not satisfied the applicant invokes protection obligations in Australia. For instance the applicant did not provide much, if any, detail of how he was ‘very active to ask for a better political system’ in the PRC, what he did to ‘actively support student’s movement in 1989; why he ‘became a target for the Chinese authorities’; what ‘serious mental torture [he suffered] from the Chinese authorities’; how he ‘suffered persecution from the Chinese authorities because of the corruption’ in the PRC, how he ‘participate in political debates … [and] public speeches’; why the PRC authorities investigated him ‘in May’; or why he was suspected of ‘organising underground activities to stand against the government’.”
(Court Book p.90)
It is hardly surprising the Tribunal having raised those questions and not having the benefit of the Applicant attending in person to answer those questions and there being no obligation on the Tribunal’s part to forward those questions to the Applicant, the Tribunal then ultimately concluded it was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason in China.
The Tribunal, in my view, in reaching its conclusion has understandably then embarked upon what could only be described as a conventional analysis of the claim and reached a decision adverse to the Applicant.
The First Respondent has submitted that in considering the Amended Application although originally the Applicant claimed bias, he now seeks to claim contravention of s.424A of the Migration Act. Further, it should be noted that before the Court this day the Applicant has sought to argue that the Tribunal did not consider independent information when assessing his application. In my view, none of the grounds now raised either in the Amended Application or indeed in the original application and supporting affidavit can be sustained. I accept, as submitted by the First Respondent, that no s.424A of the Migration Act obligations arose in circumstances where there has been an absence of evidence before it primarily due to the non-appearance and non-attendance of the Applicant and the failure of the Applicant to provide any or any further adequate material in support of the application (see SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 11 at [29 -30]).
I also accept, as submitted by the First Respondent, that in this instance, having regard to the reasons set out earlier in this judgment, the Tribunal was not able to be affirmatively satisfied that protection obligations were owed to the Applicant and accordingly had no option to refuse to grant him a protection visa (see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at 15).
As I have already indicated, I am otherwise satisfied the Tribunal has discharged the obligations it has pursuant to ss.425 and 425A of the Migration Act and was otherwise entitled to proceed pursuant to s.426A of the Migration Act.
It only remains to consider if it seeks to be pursued the question of bias. The Applicant having raised bias in the original supporting affidavit and having repeated the assertion again before the Court this day failed to provide any or any adequate particulars which would in any way justify a finding a bias, whether actual or apprehended. In this instance I can see no evidence that the Tribunal has been biased in its approach to the task of assessing the claim in circumstances where the applicant has not responded to the invitation to attend the hearing, has failed to attend the hearing and has failed to provide any further material in support of the application.
It follows for the reasons given that, in my view, there is no error of a kind which would permit this Court to interfere and I am satisfied there is indeed no jurisdictional error in this instance. Accordingly, it follows that the application, as amended, should be dismissed with costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 4 December 2006