SZIHX v Minister for Immigration

[2007] FMCA 848

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIHX v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 848

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether RRT complied with statutory requirements of s.425.

Judiciary Act (Cth), s.39B
Migration Act 1958 (Cth), ss.65; 91R; 425; 425A(3); 426A; 441A(1); 441A(4); 441C(4); 474; pt.8 div.2
Migration Regulations 1994 (Cth), reg.4.35D

Applicant: SZIHX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG418 of 2006

Judgment of: Emmett FM

Hearing date: 29 May 2007

Date of last submission: 29 May 2007

Delivered at: Sydney

Delivered on: 29 May 2007

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent: Ms N. Johnson, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG418 of 2006

SZIHX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 8 December 2005 and handed down on 3 January 2006. 

2. The applicant was born on 31 March 1963 and claims to be from Malaysia and of Chinese ethnicity. 

3. The applicant arrived in Australia on 12 June 2005, having legally departed from Malaysia on a passport issued in his own name and a visitor's visa. 

4. On 25 July 2005 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).  In his protection visa application the applicant claimed that he feared persecution in Malaysia because he is ethnic Chinese.  The applicant claimed that he feared racial discrimination from gangsters because of his Chinese ethnicity and further claimed that the Malaysian authorities would not protect him from such gangsters.  The applicant also claimed that because of his Chinese ethnicity he feared persecution from the Malaysian government as he is not provided with equal opportunities afforded to other Malaysian citizens. 

5. On 23 August 2005 a delegate of the first respondent (“the Delegate”) refused the applicant's application for a protection visa on the basis that the applicant is a not person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). 

6. On 28 September 2005, the applicant lodged an application for review of the Delegate's decision by the Tribunal.  The applicant provided no further material in support of his review application.  The applicant did not nominate any agent to act on his behalf and identified an address at Kogarah Bay as the only address for correspondence, that being his residential address.

7. On 27 October 2005 the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone.  The letter invited the applicant to come to a hearing on 30 November 2005 and invited the applicant to send any new documents or written arguments that he wished the Tribunal to consider.  The letter also informed the applicant that the Tribunal would only change this hearing date for good reason and that if he thought he may be unable to attend the hearing he should contact the Tribunal immediately because, if he did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice. 

8. The first respondent has tendered a copy of an envelope with a return to sender stamp marked exhibit 2R.  The return to sender stamp has a date “28\10” with the box marked “Refused” ticked.  There is a registered post prepaid label that contains a number being the same number as the registered number on the copy of the letter dated 27 October 2005. 

9. In the circumstances, I am satisfied that the letter dated 27 October 2005 was stamped return to sender on 28 October 2005 and, accordingly, I am satisfied that the letter was sent within three days of the date of the letter in accordance with s.441A of the Act. The letter otherwise invited the applicant to attend a hearing in accordance with the prescribed time.

10. Section 441A(1) of the Act states that if the Tribunal gives a document to a person in accordance with s.441A(4) of the Act, then that person is taken to have received the document seven working days after the date of the document. The invitation to come to a hearing must provide an intervening period in accordance with the prescribed period pursuant to s.425A(3) of the Act. Regulation 4.35D of the Migration Regulations 1994 (Cth) provides, for the purposes of s.425A(3), a prescribed period of at least 14 days between the date on which notification of the hearing date is deemed to have been received by the applicant and the date of the scheduled hearing. In the proceeding before this Court the scheduled date of the hearing is not less than 14 days from the date upon which the applicant is deemed to have received notification of that letter.

11. In the circumstances, I am satisfied that the letter sent by the Tribunal on 27 October 2005 inviting the applicant to come to a hearing was an invitation sent in compliance with s.425 of the Act.

12. In its decision the Tribunal noted that it wrote to the applicant on 27 October 2005 in the terms referred to above and noted that the letter was returned to the Tribunal marked “return to sender”. 

13. The Tribunal also noted that it wrote again to the applicant on 18 November 2005 advising the applicant that it had come to the Tribunal's attention that he may have changed his address to one that was different to the address for service he had provided to the Tribunal.  That letter was sent to the address identified by the applicant in his application for a protection visa.  The letter requested the applicant to notify the Tribunal of his correct address by 6 December 2005 and enclosed a change of contact detail form for that purpose.  The letter informed the applicant that, if the Tribunal had not heard from the applicant by 6 December 2005, the Tribunal would assume that his address details had not changed.  The Tribunal noted that no response was received by the Tribunal by 6 December 2005. 

14. The Tribunal proceeded to make its decision on 8 December 2005. The Tribunal noted that the applicant had not appeared before it at the scheduled time and that in those circumstances the Tribunal was proceeding to make its decision on the review without taking any further action to enable the applicant to appear before it pursuant to s.426A of the Act.

15. In circumstances where there has been compliance by the Tribunal with s.425 in inviting the applicant to come to a hearing, the Tribunal is entitled to exercise its discretion under s.426A of the Act to make its decision without taking any further action to allow or enable the applicant to appear before it. In the circumstances, there is no error on the part of the Tribunal in proceeding to exercise its discretion in that way.

16. The Tribunal went on to identify the claims made by the applicant in his protection visa application and noted the claims made by the applicant of a fear of persecution.  However, the Tribunal found that the applicant had provided little evidence of any persecution or discrimination that he may have suffered or that he feared he may suffer from gangs in Malaysia.  The Tribunal noted that the applicant's claims were mere assertions.  The Tribunal made that observation in the context of the authorities relating to the fact that it is for the applicant to satisfy the Tribunal he meets the statutory criteria required for refugee status.

17. In the context of noting that it is not required to accept uncritically any and all the allegations made by an applicant, the Tribunal noted that it had not had the opportunity to test the applicant's claims at hearing. The Tribunal concluded that it was because of the lack of details as to how the applicant had been adversely affected and the reasons for the harm claimed that the Tribunal could not be satisfied that the applicant had suffered serious harm or systematic and discriminatory conduct within the meaning of s.91R in the past or that he would be likely to suffer in the reasonably foreseeable future.  The Tribunal concluded that on the evidence before it it was not satisfied that the applicant had a well-founded fear of persecution for a Convention-related reason and proceeded to affirm the decision under review.  

18. The applicant appeared unrepresented before the Court this afternoon, although had the assistance of an interpreter.  The applicant confirmed that he relied on the ground identified by him in the application filed on 9 February 2006.  The ground of that application is as follows:

    “1. The Tribunal failed to invite me to appear before the Tribunal. By failing to do so the Tribunal breached Section 425(1) of the Migration Act 1958.

    Particulars:  The Tribunal sent letter to my previous residential address but the letter was returned because I have moved from that address.  The Tribunal then sent letter to my friend’s postal address, which I used as my postal address when lodging my application with the Department of Immigration.  In the letter it states that “If the Tribunal has not heard from you by 6 December 2005 we wil (sic) assume that your addresses have not changed from the ones shown in the box above.”  Because the postal address mentioned above appeared in the letter, I assumed that the Tribunal had known the change of my postal address.  I thought “the ones shown in the box above” was the postal address shown in the letter.  I wasn’t further notified by the Tribunal regarding hearing or any other matters in relation to my application.”

19. Ground 1 was interpreted for the benefit of the applicant, however, he had no submission to make in support of that ground. At the heart of the applicant's complaint appear to be the fact that the Tribunal's invitation to the applicant to come to a hearing was not received by him and therefore the Tribunal breached s.425 of the Act.

20. However, as referred to above at paragraphs 7 to 15 in these Reasons, the Tribunal complied with the statutory requirements of the Act in inviting the applicant to come to a hearing and was entitled to exercise its discretion to proceed with its decision without taking any further steps to invite the applicant to appear before it. Accordingly, the ground identified by the applicant in his application is not made out.

21. The conclusions reached by the Tribunal on the material before it were open to it and for which it provided reasons. At the heart of the Tribunal's reasons was the inadequacy of the information provided by the applicant. It is for the applicant to satisfy the Tribunal that he meets the criteria required for being a refugee and if the Tribunal is not so satisfied, then s.65 of the Act mandates that the Tribunal must refuse a protection visa.

22. There is no other error alleged by the applicant in respect of the Tribunal's decision and none is apparent from the Tribunal's decision, including the conduct of its review.  In the circumstances, the decision of the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision. 

23. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere and the proceeding commenced by way of application filed on 9 February 2006 is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  7 June 2007