SZIHI v Minister for Immigration - [2007] FMCA 1332

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIHI & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1332

MIGRATION – Whether notification to a principal applicant constitutes notification to others – whether all statutory requirements for notification have been followed.

Migration Act 1958, ss.36, 65, 425, 426A, 441G

SZKDB & Anor vMinister for Immigration& Anor [2007] FMCA 1036

First Applicant:

Second Applicant:

Third Applicant:

SZIHI

SZIHJ

SZIHK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent

REFUGEE REVIEW TRIBUNAL

File number:

SYG400 of 2006

Judgment of:

Raphael FM

Hearing date:

30 July 2007

Date of last submission:

30 July 2007

Delivered at:

Sydney

Delivered on:

30 July 2007

REPRESENTATION

For the Applicants:

In person

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4000.00.
The name of the First Respondent be amended to Minister for Immigration & Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 400 of 2006

SZIHI

First Applicant

SZIHJ

Second Applicant

SZIHK

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

There are three applicants in this matter. They all arrived here on 25 June 2005. They are husband, wife and a son. The husband and wife arrived in Australia on the basis of visitors’ visas accompanying their son who had a student visa. On 4 August 2005 all three lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs. On

7 September 2005 a delegate of the Minister refused to grant protection visas and on 10 October 2005 the applicants applied for review of that decision.
The application for review is found at [CB 64-67]. It is completed in English with the exception of three signatures. I should state here that the application for a protection visa was made in substantive form, using form C, by the mother. The father and the son utilised form D which states:
“This part is for a member of the family unit who does NOT have their own claims to be a refugee, but is included in this application
If you DO have your own claims to be a refugee, complete a Part C instead.”
The application for review was signed in section F by the mother as applicant 1. The father and the son signed as applicants 2 and 3 respectively. Before the signatures of applicants 2 and 3 a declaration is made in the following form:
“The information I have supplied on or with this form is complete and correct in every detail
I have read and understood the information supplied to me in this application form
Unless I advise the Tribunal otherwise, I authorise the Tribunal to communicate with applicant 1 or his or her authorised recipient about this application.”
On 9 November 2005 the Tribunal wrote to the mother. The heading is:
“Your application for review [ap 1, ap 2, ap 3] – please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them.”
The letter invited all the applicants to a hearing on Thursday 8 December 2005. None of the applicants attended that hearing.

On 12 December 2005 the Tribunal determined to affirm the decision under review and handed the decision down on 5 January 2006.
The grounds upon which the mother invoked the protection of Australia arose out of her association with a close friend who practices Falon Gong and who had been in prison in the PRC and later left that country for New Zealand leaving behind a daughter. The substantive applicant before me looked after this daughter for some time and, in the course of doing so, ran up against authority, particularly in the child’s school. The applicant feared that she had jeopardised her position in China and after her son obtained a student visa to study in this country decided that it would be best if the whole family left and claimed asylum.
As none of the applicants attended before the Tribunal and had not provided the Tribunal with any contact details apart from their address, there was little that the Tribunal could do to discover whether there was any reasonable cause for the non-attendance. It decided pursuant to s.426A of the Migration Act 1958 (the “Act”) to make a decision upon the review without taking any further action to enable the applicants to appear before it. Up until today no excuse was advanced by the substantive applicant as to why she did not attend. Today she is suggesting she had been ill. She also stated in her application to this court and the affidavit accompanying it that she had not told her husband and son about the hearing because she thought they would get their own letter. Although it matters not, I find this rather hard to believe because the applicant told me that she had had the letter translated for her by a friend. It is the failure by the applicant to inform the husband and son that are the grounds for application to this court.
Before I deal with the matters raised by the applicant in that regard I would note that the Tribunal’s decision was based upon its failure to be satisfied that the applicant was a person to whom Australia owed protection obligations as the information that she had provided was wanting in several areas.
“She did not provide detailed information on why she thought her family would be adversely affected if they returned to China or what she thought might happen upon their return. She did not provide any information relating to any threats of mistreatment or actual mistreatment by the Chinese authorities or any other persons. The applicant has also not provided any information which would support her claim that she will face any harm for reasons of her past association with the Falun Gong practitioner if she returns to China now or in the foreseeable future.” [CB 85].
A decision of the Tribunal made on this basis is, to my mind, not capable of review. It is a simple expression of lack of satisfaction as required by ss.65 and 36 of the Act. The question is whether or not the Tribunal complied with all the procedures set out in ss.425 and 441G to invite all of the applicants to the hearing. This is a question that was considered by Smith FM in SZKDB & Anor vMinister for Immigration& Anor [2007] FMCA 1036 at [31] to [35]. His Honour considers whether that the authority contained in section F of the application to the Tribunal by additional applicants constitutes the substantive applicant their authorised representative. His Honour considered that it did in the case before him which involved a mother and a daughter stating:
[34]. “ In my opinion, on its true interpretation, the form of application completed by all applicants presented the primary applicant or that person’s “authorised recipient”, as the only person to whom correspondence should be sent in relation to all of the applicants. I consider that such a form is consistent with the legislation, as well as presenting a sensible procedure. Any secondary applicant who did not wish to appoint the primary applicant or their agent as his or her authorised recipient of correspondence would be free to complete their own application for review appearing as an Applicant 1. In cases of applicants who apply to the Tribunal as family members of a primary visa applicant, it would be manifestly absurd to construe the legislation as requiring that separate invitations to a hearing must always be sent addressed to every joint applicant.”
It seems to me that that view of his Honour’s is not one which I could conclude was so manifestly wrong that I should depart from the normal procedures of following a decision of a member of my own court and for that reason I would propose to dismiss this appeal on the basis that all the statutory requirements for notification were complied with. But I do not think I should do it without expressing one concern. The applicant who appeared before me today is not the first person to appear who clearly speaks almost no English whatsoever, who almost certainly cannot read the language and who writes normally in an alphabet which is not in any way similar to that in which the forms that she is being asked to complete appears. The same could be said for the husband and son (although they were not in court).
Although at the bottom of the form under section G there is an interpreter’s declaration, in this case, as in many others, it is not completed. I do not know whether anybody translated this complicated form to the applicant or if they did translate it they translated it correctly. Of course, it is possible that the applicant who appears before me through an interpreter is in fact fluent in the English language, reads it and writes with ease and therefore has no need of an interpreter at all. But if this is not the case then there must be some concern as to whether or not this applicant and the many like her have any understanding at all of the form they have allegedly completed, what it means, what it involves or what affect it has. If the form is not comprehended there must be some doubt as to whether any valid application for review has been made or if a valid application for review has been made a valid invitation to attend a hearing has been issued.
None of these matters have been raised in argument before me and it is therefore not necessary for me to opine upon them, but sooner or later the matter will be raised as has been raised the question I have actually decided and was decided only a few months ago by Smith FM. It is perhaps time that the Department considered their procedures so that it can be satisfied that every applicant clearly understands the forms that they have completed.
The application is dismissed. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,000.

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

Associate:

Date: