SZINF v Minister for Immigration
[2007] FMCA 556
•12 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZINF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 556 |
| MIGRATION – Review of RRT decision − where the applicant did not attend the Tribunal hearing − where the Tribunal was not satisfied of the applicant’s claims − whether there was jurisdictional error pursuant to s.424A or s.91R − whether the Tribunal’s decision evidences bias. |
| Migration Act 1958, ss.424A, 91R |
| SJSB v Minister for Immigration [2004] FCAFC 215 SZEZI v Minister for Immigration [2005] FCA 1195 |
| Applicant: | SZINF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG807 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 12 April 2007 |
| Date of Last Submission: | 12 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2007 |
REPRESENTATION
| Applicant in Person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2000.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG807 of 2006
| SZINF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. He arrived in Australia on
11 October 2005. On 7 November 2005, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 18 November 2005 a delegate of the Minister refused to grant a protection visa and on
19 December 2005 the applicant applied for a review of that decision. As I have noted on more than one occasion, the applicant, who gave a residential address in Campsie, gave an address for service of documents upon him at 149/460 Pitt Street, Sydney, which, from my experience in dealing with several hundred of these matters, leads me to believe is the post office box of some organisation, possibly voluntary, possibly for profit, set up to assist persons in the position of the applicant and either not registered as a migration agency or not wishing to be known as providing such assistance. As it is quite clear to me that the circumstances of this organisation are, at the very least, suspicious, I am disappointed that none of the previous requests or suggestions that I have made from the bench that the organisation be investigated appear to have been taken up by the Department. I say this because I have received no information myself or through the newspapers about it. But it is, of course, possible that behind the scenes urgent work is being undertaken.
In any event, this applicant was invited to a hearing by the Tribunal in proper form by way of a letter dated 22 December 2005. The hearing was due to take place on 25 January 2006 at 11.30 am. The letters to the applicant addressed to him at the PO Box were not returned. But the applicant did not attend. He told me today that he only received notice of the hearing at noon in respect of the hearing which was at
10 am. In fact, the hearing was at 11.30 am and I have no evidence whatsoever as to who gave him the information or why he did not immediately contact the Tribunal and ask it to put the hearing off until he could attend. On 27 January 2006, the Tribunal determined to affirm the decision under review and it handed that decision down on
16 February 2006. I will say that it is clear that the Pitt Street address must have been one to which the applicant had some connection because that was where the decision was sent and the applicant is now here, presumably, only because he got the decision.
The applicant’s claim to be a person to whom Australia owes a protection obligation is found in a short statement at [CB27]. The statement is repeated almost in full by the Tribunal at [CB64]. It is a familiar story of a Falun Gong practitioner who claims to have suffered persecution for his adherence to that philosophy and to have had a close colleague arrested in circumstances where the applicant himself managed to make his escape. As the Tribunal indicates, the claims made by the applicant beg for particularisation and clarification which the applicant would have been able to provide had he attended the hearing. In the absence of the applicant’s attendance the Tribunal was unable to be satisfied, as required by s.65 of the Act, that he was a person to whom a visa should be granted. The responsibility for providing the Tribunal with that satisfaction belongs, squarely, to the applicant, SJSB v Minister for Immigration [2004] FCAFC 215 at [15]-[16].
In the amended application the applicant makes a number of generalised claims of alleged jurisdictional error. The form of the document is familiar. It claims a breach of s.424A without providing details of the information that is alleged not to have been given to the applicant, makes reference to the Tribunal’s failure to consider his application pursuant to s.91R of the Act and alleges bias. None of these claims are particularised but a reading of the Tribunal’s decision makes it clear, at least to me, that there is no scintilla of a suggestion of bias, that the decision was not based upon any information; rather the absence of it: SZEZI v Minister for Immigration [2005] FCA 1195, and any failure to obtain the full story was the failure of the applicant and not that of the Tribunal. It follows from the above that this application must be dismissed. I order that the applicant pay the respondent’s costs of the hearing assessed in the sum of $2000. I order that the name of the first respondent be amended to the Minister for Immigration and Citizenship.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date:
0
2
1