SZIMW v Minister for Immigration
[2007] FMCA 1146
•20 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIMW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1146 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65, 91X, 426A, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 Migration Regulations 1994 (Cth), reg.4.35D |
| NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 SZEGX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 166 SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 |
| Applicant: | SZIMW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 762 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 20 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitor for the Respondent: | Ms N Johnson of Sparke Helmore |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application of 14 March 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 762 of 2006
| SZIMW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court by the applicant seeking an order that the first respondent show cause why remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). Both sides appeared. The applicant is a self-represented litigant and appeared with the assistance of a Mandarin interpreter. I believe it is in the parties interest to know with certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated that I would publish my written reasons shortly.
The Proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIMW”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 14 March 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 27 January 2006 and handed down on 16 February 2006, affirming a decision of a delegate of the first respondent refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the FederalMagistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 10 April 2006. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of S Norman, reference N05/52818, provides the following background information:
The applicant, who claims to be a citizen of The People’s Republic of China, arrived in Australia on 13 October 2005. On 18 October 2005 she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). On 3 November 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 6 December 2005 the applicant applied for review of that decision.(CB 52)
The Tribunal decision sets out material contained in the applicant’s original protection visa application lodged with the Department:
On 18 October 2005, the applicant lodged a Protection Visa application with the Department. The then 40 year old female applicant claimed her ‘parents were persecuted by the Chinese Communist Party during the Cultural Revolution because of their religion’. The applicant claimed to recall seeing her ‘parents and some friends gathering together at [their] home for reading Bibles and related religious activities.’ The applicant claimed it ‘seemed to [her] they were doing something…secretly. They had to worry about their safety when they were having normal religious activities at [their] home.’ The applicant claimed when she was four years of age the PRC ‘police came to [their] home to take away [her] parents and other people.’ The parents were released four days after their detention and the applicant had resided with her grandparents during this period. The applicant had been told her parents had been ‘tortured by the police. One month later [her] whole family was sent to far away countryside.’ The applicant’s parents became farmers and ‘had to report to the local police periodically.’ The applicant claimed that ‘as their children we were looked down upon by people around.’ She claimed to recall ‘some kids pointing their finger at [her and saying her] parents were counter revolutionists.’ Two years later the applicant and her family returned to ‘the city’. The applicant claimed her parents could not ‘attend any religious gathering’.
The applicant then claimed that she ‘actively organise our religious gatherings secretly.’ In March 2005 the applicant’s ex-husband and she were ‘both detained at our home for underground religious activities. In order to let [the applicant] go [her] ex-husband took all the responsibilities and got divorced with [her] so as to let [her] go. With the held of a friend, by paying a lot of money, [the applicant] got [her] passport and money to come to Australia for protection.’(CB 54-55)
The Tribunal wrote to the applicant at her nominated mailing address on the 22 December 2005 informing her that it had considered the material before it in relation to her visa application but was unable to make a decision in her favour on that information alone.(CB 43) It invited her to appear at a hearing to give oral evidence and present arguments in support of her claim. The applicant responded to the invitation stating that she would attend and would require a Mandarin interpreter.(CB 45)
The applicant failed to attend the hearing.(CB 46) She did not provide an explanation for her absence. The Tribunal noted that the applicant had not nominated an authorised recipient, therefore no enquiries could be made with another person. Accordingly, it proceeded to make a decision on the papers pursuant to s.426A of the Act.
Given the brevity and vagueness of the applicant’s claims, the Tribunal was unable to accept that the applicant was “a sincere and genuine Christian as claimed” or even that she was “a mere practitioner”. It could not be satisfied that she was or would be imputed with such practice in China. The Tribunal was not satisfied on the claims before it that the statutory elements for a grant of a protection visa had been made out. Accordingly it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution.(CB 56.5-56.7)
Application for Review of the Tribunal Decision
On 14 March 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with orders made at the first court date, the applicant filed an amended application on 20 June 2006 which contained the following grounds:
1. The Tribunal failed to carry out its statutory duty
Particulars
(a) The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
(b) The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958s. 424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
(c) The above particulars had to be provided in writing SAAP v MINISTER FOR IMMMIGRATION AND MULTICULTURAL AND INDUSTRIAL AND ETHNIC AFFIRS (2005) HCA 24 (18 May 2001)
McHugh J.
Para68 “…The assumption that no breach of s424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the decision. Nothing in the section suggests that fairness i nthe (sic) way in which the Tribunal observes it statutory obligations is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case. Further, the, mandatory nature of the obligation in s.424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s424A.”
Para 77 “…If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function …it is difficult to accept the proposition that a decision made despite the lack of strict compliance is valid decision under the Act…a decision made after a breach of s.424A is invalid.”
Hayne J
Para 180 “I consider that the Tribunal was bound to give the appellants written notice of that information and to ensure, as far as reasonably practicle (sic) that the appellants understand why it was relevant to the review. The Tribunal failed to do so constituted jurisdictional error.”
Para 208 “…whether those steps would be judged to be necessary or even desirable in the particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
(d) The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v AL SHAMRY (2002) 110 FCR 27
Para 17 “…In our view, ‘applicant’ wherever appearing in s.424A means ‘applicant for review by the Tribunal of a Ministerial decision’ and ‘application’ correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.”
The court did not accept the Ministers argument that “Application” in the context was said to mean “all information given by the applicant to officials in the department (including that provided to the Tribunal) for the purposes of determining whether to grant a protection visa to the applicant.”
(e) The Tribunal based it’s findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by s.424A, to give particular of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.[copied with correction or alteration]
Submissions and Reasons
The applicant is a self-represented litigant and appeared with the assistance of a Mandarin interpreter. When the applicant was invited to make oral submissions in support of her application she read from prepared notes which effectively repeated particulars contained in the amended application. The form of the amended application filed by the applicant is regularly seen in this Court and does not specifically address the issues in her case, but reproduces parts of authorities in this jurisdiction which are not directly relevant. The applicant stated that she did not have the opportunity to explain to the Tribunal the circumstances of her claim. She also stated that the Tribunal failed to consider its obligations under s.424A and failed to provide her with information in accordance with the Act. This appears to be the substance of the first two particulars of the amended application.
Ms Johnson, for the first respondent, contends that the reason for the Tribunal decision was simply a lack of detail in the applicant’s claim. The Tribunal was unable to be satisfied with the veracity of her claims. However, its thought-processes do not fall under the scope of s.424A(1)(a): SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 [2006] FCA 78 at [23] per Bennett J; SZEGX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 166 per Moore J; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [12] per Allsop J; SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29] per Allsop J.
I accept the submissions made by Ms Johnson and agree that there has been no breach of s.424A(1). This ground of review cannot be sustained.
Ms Johnson submits that the Tribunal letter inviting the applicant to a hearing did the following:
a)Contained an invitation to the applicant to appear before it to give evidence (s.425).
b)Provided notice of the specified day, time and place of the hearing.
c)Was given to the applicant by one of the means specified in s.441A of the Act (namely, registered pre-pay post).
d)Provided a period of time to the applicant, which was at least the prescribed period of 14 days: reg.4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”).
e)Contained a statement giving effect to s.426A (regarding the options available to the Tribunal if the applicant failed to appear before it).
Accordingly, the invitation complied with the statutory requirements contained in ss.425(1) and 425A of the Act, and reg.4.35D of the Regulations.
It is submitted the applicant accepted the hearing invitation but did not appear at the scheduled time, date or place of the hearing. In the circumstances, the Tribunal was entitled to proceed to make a decision on the review without taking any further action to enable the applicant to appear before it: s.426A of the Act. It was not obliged to accept the applicant’s claims, and, after the applicant failed to attend the scheduled hearing, a decision affirming the delegate’s decision to refuse her a protection visa was the inevitable result: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. Ms Johnson submits that no jurisdictional error is revealed because the facts asserted by the applicant did not enable the Tribunal to be satisfied that the applicable criteria under s.65 of the Act had been met.
I agree with Ms Johnson’s submission that no error has been established and there is no jurisdictional error on the part of the Tribunal. The issue raised in the original application and repeated in the amended application – that the Tribunal failed to carry out its statutory duty – is not particularised. The particulars provided were general in nature and bore little or no relationship to the issues raised in the Tribunal decision or its reasoning.
Conclusion
The material contained in the Court Book, in particular the Tribunal decision, clearly demonstrates that the Tribunal observed the requirement to notify the applicant about the Tribunal hearing. The Tribunal did not make a positive finding of fact about the applicant, but rather rejected her claim due to a lack of information. Neither is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.00.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 18 July 2007
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