SZIHH v Minister for Immigration
[2006] FMCA 736
•23 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIHH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 736 |
| 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 – where applicant claimed that he had advised the Tribunal of his change of address – no evidence of change of address – no reviewable error. PRACTICE & PROCEDURE – Affidavit – where deponent did not have any command of English – affidavit must comply with r.15.27 of the Federal Magistrates Court Rules 2001 – where applicant permitted to give oral evidence. |
| Judiciary Act 1903 (Cth), s.339B Migration Act 1958 (Cth), ss.424A, 425, 426A, 474 Federal Magistrates Court Rules 2001 r.15.27 |
| Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 |
| Applicant: | SZIHH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 399 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 May 2006 |
| Date of Last Submission: | 18 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
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 $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 399 of 2006
| SZIHH |
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
3rd January 2006.
Background
The applicant is a citizen of The People’s Republic of China who arrived in Australia on 27th June 2005 and applied for a protection (class XA) visa. After his application was refused, the applicant sought a review of that decision by the Refugee Review Tribunal.
Application to the Refugee Review Tribunal
The applicant lodged his application on 26th September 2005.
He provided no additional information in or with his application.
A copy of that application can be found at pages 36 to 39 of the Court Book.
The next day, the Tribunal wrote to the applicant acknowledging his application. The letter was addressed to the address the applicant had given as his home address and his address for correspondence in his application for review. The Court Book shows at pages 44 to 52 that this letter was returned on 3rd November 2005. The letter was registered and the Australia Post stamp shows that letter was refused on 28th October 2005.
In the meantime, The Tribunal had written again to the applicant by means of a registered letter dated 27th October 2005. This letter invited the applicant to attend a hearing of the Tribunal on
Wednesday 30th November 2005. This letter was also returned to the Tribunal on 3rd November. Again, the Australia Post stamp shows that the letter was refused. A copy of the letter appears at pages 53 to 61 of the Court Book.
The Tribunal noted that the applicant did not appear at the hearing on 30th November. In the absence of the applicant, the Tribunal decided to decide the matter under s.426A of the Migration Act without taking any further action to allow the applicant to appear before it. I note that the Tribunal did not make its decision until 8th December 2005.
The Tribunal affirmed the delegate’s decision not to grant a protection visa. The Tribunal’s findings and reasons are set out on pages 75 and 76 of the Court Book.
The Tribunal found that the applicant was a national of The People’s republic of China, relying on the applicant’s evidence including his passport (see Court Book at page 75).
The Tribunal noted that the material put forward by the applicant was “very scant” and lacking in detail. Whilst the applicant had claimed an involvement with Falun Gong practitioners in Australia, he had not given any details or provided any evidence, other than his own assertions.[1]
[1] See Court Book at page 76.
The Tribunal went on to find:
Whilst 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.[2]
[2] See Court Book at page 76.
Application to the court
The application filed an application for review and an accompanying affidavit on 8th February 2006. In his application he gave only one ground, claiming that:
The applicant was denied an opportunity to present his case in a hearing as the Refugee Review Tribunal send all the correspondences to the applicant’s previous address after the applicant has notified the Tribunal of change of address.
The applicant reiterated that claim in his supporting affidavit. During the hearing, it became clear that the applicant, who was unrepresented, did not speak English. He conducted his case with the assistance of an interpreter in the Mandarin language. The applicant’s affidavit does not comply with Rule 15.27 of the Federal Magistrates Court Rules, as it contains no certification in or below the jurat that a translator had read a translation of the affidavit and the oath or affirmation to the applicant in Mandarin. Accordingly, I was not satisfied that it should be used in the proceeding.
The applicant was permitted to give oral evidence about the circumstances of his claimed notification to the Tribunal of his change of address, after the significance of giving evidence was explained to him from the Bench. The applicant told the court that he did not live at the address given on the application to the Refugee Review Tribunal, even though he claimed in his application that he did, but he used it for correspondence. He said that he arranged for a friend to write letters for me. The applicant said that he asked his friend to notify the Tribunal of his change of address because he himself did not know any English.
He did not know when this had been done, but only knew that his friend told him that he had informed the Tribunal of the change of address.
The applicant’s friend did not attend court and the applicant did not bring to court any affidavit or other document from the friend claiming to have notified the Tribunal of the change to the applicant’s address. The applicant said that he moved around a lot, as he was working and had to go where his boss went.
Conclusions
I have read the written submissions dated 11th May 2006 by Mr Markus, for the First Respondent Minister, and I am satisfied that they provide an accurate description of the facts and the applicable law. With respect, I propose to adopt paragraphs 11 to 15 inclusive, and paragraphs 18 to 20 inclusive. That said, I will paraphrase where necessary and adopt my own paragraph numbers to avoid confusion.
On 18th November 2005, the RRT checked its records and satisfied itself that it had sent correspondence to the correct address for service. It also checked the movement data base, confirming that the applicant was still in Australia (Court Book pages 62-65). The applicant provided no telephone number with his application.
The RRT prepared a hearing record for the scheduled hearing of
30th November 2005 (Court Book 66), but the applicant did not appear. This suggests a readiness on the part of the RRT to conduct a hearing if the applicant appeared, in spite of his failure to respond to the hearing invitation.
The RRT again wrote to the applicant at the same address for service on 3rd January 2006, enclosing the RRT’s decision. The applicant filed his application in this Court within the prescribed time limits, and there is no evidence that the RRT’s letter enclosing its decision was returned to sender. This suggests that the applicant was still receiving correspondence at the same address.
There is no evidence that the applicant changed address for service, or notified the RRT of this fact. Indeed, the evidence suggests that the applicant continued to receive correspondence at the nominated address.
The RRT waited until after the nominated hearing date before making its decision. As the RRT had no other means of contacting the applicant than the address provided by him, there has been no conceivable breach of s.425 of the Migration Act. The RRT sent a proper invitation to attend a hearing in the only way it could.
The application for review to the RRT contained no submissions or assertions at all. The RRT in its decision determined that it did not have enough information before it to reach any level of satisfaction on the applicant’s claims. It described the material put forward by the applicant to the First respondent in support of his application for a protection visa as “scant” and lacking in detail. It could not be satisfied of the applicant’s claims, stating that this was because “there was no opportunity to further the claimed interest in Falun Gong nor the veracity of the claims made.”[3]
[3] See Court Book at page 76.
As the Full Federal Court noted in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 [17ff]:
“as s. 65..make[s] clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding.”
The RRT’s reasoning does not reveal any use at all of the applicant’s protection visa claims in its reasons. There is nothing in the reasons revealing a breach of s.424A of the Migration Act, as the obligations of that section are now understood after the decision of the Full Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2.
I should add that the applicant’s oral evidence on affirmation made it patently clear that he had not, as he claimed, informed the Refugee Review Tribunal of his change of postal address. At best, he had asked his unidentified friend to advise the Tribunal, but there was no appearance by the friend or any documentary evidence purporting to be from that friend. In any event, the applicant’s evidence about his postal address lacked plausibility. The applicant was unable to prove any communication with the Tribunal about a change of address.
There is nothing before me to indicate that the Tribunal failed in any way to carry out its obligations to invite the applicant to a hearing, as required by s.425 of the Act. There is nothing to suggest that the Tribunal failed to exercise its power under s.426A in a proper way.
The applicant did not attend the Tribunal hearing. As a result, the Tribunal had insufficient evidence to be satisfied that the applicant met the criteria for a visa, and had no option but to affirm the decision to refuse the application for a protection visa.
I am mindful that the applicant is not legally represented. I have read through the Tribunal decision and made my own independent examination of it, and I am unable to discern any other jurisdictional error that the applicant did not mention.
There is no jurisdictional error. The Tribunal decision is a privative clause decision under the provisions of s.474 of the Migration Act.
The application will be dismissed, and I will consider the question of costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 23 May 2006
2
3