SZIKT v Minister for Immigration & Anor
[2007] FMCA 293
•27 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIKT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 293 |
| 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 – applicant a citizen of China – where applicant claims a well-founded fear of persecution because of his practice of Falun Gong – where applicant did not attend Tribunal hearing – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A |
| SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 |
| Applicant: | SZIKT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3047 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 February 2007 |
| Date of last submission: | 27 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Broderick |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3047 of 2006
| SZIKT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for a review of a decision of the Refugee Review Tribunal. The decision was signed on 30th August and handed down on 21st September 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. By means of his application filed on 19th October 2006, the Applicant asks the Court to make a writ of certiorari, quashing the decision of the Refugee Review Tribunal.
Background
The background to this matter is that the Applicant is a citizen of the People's Republic of China. He arrived in Australia on 16th October 2004. On the 22nd of that month he applied for a Protection (Class XA) visa. On 22nd November 2004 a delegate of the Minister refused his application.
The Applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal affirmed the decision of the delegate on 9th March 2005. The Applicant then sought judicial review of the Tribunal's decision and, on 7th October 2005, orders were made by consent, remitting the application to the Tribunal for reconsideration. The Tribunal again affirmed the delegate's decision on 19th January 2006. Again the Tribunal affirmed the delegate's decision. The Applicant sought judicial review of that decision and, on 27th June 2006, consent orders were made, remitting the application to the Tribunal, for reconsideration.
The Tribunal listed the application for hearing on 24th August 2006 and invited the Applicant to attend. The Tribunal wrote to the Applicant on 25th July 2006, inviting the Applicant to attend, and they sent that letter to the Applicant at three different addresses. The Tribunal explains the reason for that at page 148 of the Court Book. Those addresses were: first, the mailing address provided by the Tribunal in his review application; second, the Applicant's most recent address, as recorded by the Department of Immigration & Multicultural Affairs, as it then was; and, third, the address given by the Applicant to the Federal Magistrates Court on 24th February 2006.
The Applicant told the Court that he had not received any of those invitation letters but I note that a Response to Hearing Invitation was forwarded to the Tribunal by the Applicant's then migration agent on 16th August 2006, indicating that the Applicant did wish to attend the hearing and required the assistance of a Mandarin interpreter. The Applicant did not attend the hearing on 24th August, nor did anyone else.
Prior to the hearing on 3rd August 2006, the Tribunal wrote to the Applicant's migration agent, inviting him to comment on certain information. This letter was written to comply with the provisions of s.424A of the Migration Act. The letter asked the Applicant to comment, in writing, by 28th August 2006, four days after the hearing date. The letter said:
If you do not give comments by 28 August 2006, the Tribunal may make a decision on the review of your case without further notice.
The Applicant did not attend the hearing, as I said, and the Tribunal did not receive any message from the Applicant, or on his behalf, explaining why he was not able to attend. The Applicant has told the Court that he was sick and had obtained a medical certificate. He said that he advised his migration agent a day before the scheduled date of the hearing. Whilst that may well be the case, there is no record that the Tribunal received any indication, either before the hearing or after the hearing, explaining the Applicant's inability to attend. No medical certificate has been produced to the Court.
The Tribunal exercised its powers under s.426A of the Migration Act to decide the review in the absence of the Applicant. A copy of the Tribunal decision record appears at pages 144-151 of the Court Book. The Tribunal considered the Applicant's claims and evidence and refers, at page 149, to the s.424A matter of 3rd August. The Tribunal noted that it received no response to the letter, which was not returned unclaimed.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 150 and 151 of the Court Book. The Tribunal accepted that the Applicant had Chinese nationality and assessed his claims against that country. The Tribunal went on to note, however, that the material before the Tribunal was insufficient for it to make a favourable decision. The Tribunal had advised the Applicant on that fact in its s.425 letter of 25th July 2006, inviting the Applicant to attend the hearing.
The Tribunal also went on to reject the Applicant's claims concerning his experiences during the second period of detention that he claimed, and did not accept that he was physically tortured in the manner described in his protection visa application. The Tribunal noted that that matter cast grave doubts on the Applicant's credibility generally, as was referred to in the Tribunal's s.424A letter to the applicant of 3rd August.
The Tribunal went on to note that it had residual claims which were exceedingly vague and incomplete, in addition to the fact that the Tribunal had general credibility concerns about the Applicant. The Tribunal said:
The material is insufficient for the Tribunal to satisfy itself as to the details and veracity of these claims and whether they establish that the applicant has a well-founded fear of persecution within the meaning of the Convention.
The Tribunal sets out, on page 151 of the Court Book, details of the matters which the Tribunal considered were unreliable or lacking in detail. The Tribunal went on to find, at page 151:
In view of its credibility concerns and on the minuted evidence before it, the Tribunal is not satisfied that the applicant is or has been a Falun Gong practitioner, that he will be perceived as such, that he has been subject to any adverse attention for that or any other reason in the past, or that there are any past events or other circumstances that give rise to a well-founded fear of persecution within the meaning of the Convention now or in the reasonably foreseeable future.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
The application for judicial review
In his application to this Court, the Applicant sets out three grounds. First, he claims to be a Falun Gong member, who left China because he was not safe in his home country. Second, he sets out that he was lucky to have a chance to come to Australia and his application for a protection visa was refused and he claims that the Tribunal made a mistake with his name. Third, he noted that the Tribunal did not believe his claim and felt that the information was not sufficient. He said he did not attend the hearing because he was very sick and he believed that everyone in the world knows that there is no freedom in China for Falun Gong members.
The Applicant has not filed any amended application or any written outline of submissions but told the Court that he was sick, he had obtained a medical certificate and had given it to his migration agent, and had told the migration agent he was sick a day before the hearing. He told the Court that he cannot go back to China because he fears persecution as a Falun Gong member. He said that he is divorced and has lost his property in China. He said that he would be unable to find work if he returned to China, because no employer would want to employ a Falun Gong practitioner. He asked the Court to allow him to stay in Australia.
I have read through the outline of submissions prepared by Mr O'Meara, the counsel for the First Respondent Minister. On behalf of the Minister it is submitted that the decision is a privative clause decision and that no jurisdictional error has been shown. It is submitted - and, in my view, correctly - that the Applicant's application for review does not articulate any recognisable grounds of appeal, or, more correctly, I suppose, a review. The substance of the Applicant's complaint is that the Tribunal did not believe his claims to be a member of Falun Gong and to have been persecuted for that reason. In effect, the Applicant is seeking a merits review; in other words, he is seeking to challenge the Tribunal's factual findings.
The three grounds mentioned by the Applicant go no further than to challenge the factual findings made by the Tribunal. They do not set out any jurisdictional error. The third ground refers to the Applicant's failure to attend the hearing and his claim that he was very sick. The explanation given by the Applicant that he obtained a medical certificate, he gave it to his migration agent and advised his migration agent of his illness a day before the hearing does not establish any error on the part of the Refugee Review Tribunal.
There is no evidence that the Applicant, or the Applicant's agent, or anybody else, ever, notified the Tribunal that the Applicant was not able to attend the hearing due to illness. In my view, there is no reason shown as to why the Tribunal should not have exercised its power under s.426A of the Migration Act to decide the review on the basis of the material before it. It is noteworthy that the Tribunal complied with its obligations under s.424A of the Migration Act, by writing to the Applicant care of his migration agent on 3rd August 2006, putting information before the Applicant, for his comment; this information being the reason, or part of the reason, why the Tribunal might affirm the delegate's decision. The Tribunal did not receive a reply or any comments from the Applicant.
The Tribunal set a time limit of 28th August, four days after the hearing, to provide those comments. The Tribunal did not sign the decision until 30th August. In other words, the Tribunal waited from the scheduled date of the hearing, 24th August, until after the expiration of the time limit on the s.424A letter and did not make its decision until two days after that. There was ample time, therefore, for the Applicant to advise the Tribunal of his illness, and there was ample time for the Applicant to have made written comments on the matters referred to in the Tribunal's s.424A letter of 3rd August. It was not until both of those dates were well past that the Tribunal proceeded to finalise its decision and sign the decision on 30th August.
There is no breach of s.426A of the Migration Act, nor is there any breach of s.424A. There is no breach of s.425 of the Act. The Tribunal acted with commendable caution, in sending a copy of the invitation letter to every address that they had for the Applicant. To my mind, no jurisdictional error has been made out. I am mindful of the fact that the Applicant is not legally represented. I have read through the Tribunal decision but I am unable to discern any arguable case for jurisdictional error.
The fact is that the information before the Tribunal was insufficient to enable the Tribunal to be satisfied that it could make a favourable decision, and what information there was before the Tribunal had serious credibility problems. There was ample evidence before the Tribunal to allow it to make that finding on the credibility.
This is another example of an applicant not attending the hearing of the Refugee Review Tribunal after having been invited to attend. The consequences of not attending the hearing, when the Tribunal has informed the applicant the information before it is insufficient to allow it to make a decision in the applicant's favour, in the absence of attendance or in the absence of providing further written information, the application is unlikely to succeed. This has been set out in a number of decisions, including SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811, SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 and NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287.
There is no jurisdictional error and no arguable case for a jurisdictional error. The decision is a privative clause decision, as defined by sub-s.474(2) of the Migration Act. Accordingly, it attracts the protection of sub-s.474(1) of the Act, and is not subject to orders in the nature of certiorari mandamus, or prohibition. It follows that the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister, in the sum of $5,000.00. This is an appropriate matter to seek costs, and the amount sought - namely, $5,000.00 - is an amount provided by the Rules. The Applicant has told the Court that he cannot afford that amount, and, whilst I accept that that may well be true, it is not a reason for not making a costs order. It is a matter to be taken into account when assessing time to pay. I propose to allow time to pay.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 9 March 2007
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