SZIOE v Minister for Immigration

[2007] FMCA 623

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIOE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 623

MIGRATION – Review of decision of RRT – where applicant fails to attend Tribunal hearing.

Migration Act 1958, ss.65, 426A

Applicant: SZIOE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 892 of 2006

Judgment of: Raphael FM

Hearing date: 18 April 2007

Date of last submission: 18 April 2007

Delivered at: Sydney

Delivered on: 18 April 2007

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $1,900.00.

3. The name of the first respondent will be amended to Minister for Immigration and Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 892 of 2006

SZIOE

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1.The applicant is a citizen of China.  He arrived in Australia on 26 September 2005.  On 7 October 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 9 November 2005 a delegate of the Minister refused to grant a protection visa and on 12 December 2005 the applicant applied for review of that decision. 

2.In his application for review to the Tribunal the applicant gave an address in Campsie and a correspondence address for himself at 148/460 Pitt Street Sydney.  On 22 December 2005 the Tribunal wrote to the applicant informing him that it 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.  He was invited to come to a hearing and to give oral evidence and present arguments in support of his claim.

3.The hearing was set down for 2 February 2006.  The letter had been sent to the applicant at 148/460 Pitt Street.  On 23 January 2006, because no reply had been received to the hearing invitation, the Tribunal went through its usual checklist [CB 68].  There does not appear from that document to be any indication that the letter had been returned.  On 2 February 2006 the applicant did not appear at the hearing. 

4.On 23 February 2006 the Tribunal handed down its decision to affirm the decision under review.  The applicant was sent notice of the handing down by way of a letter to 148/460 Pitt Street.  Presumably he got the letter because he became aware that the decision was unfavourable and on 27 March 2006 filed an application in this court. 

5.The grounds upon which the applicant claims to be a person to whom Australia owes protection obligations are contained in a short statement found at [CB 27] attached to his application for a protection visa and another short statement found at [CB 63] annexed to his application for review.  Both of these statements state that the applicant is a Falon Gong practitioner and that the exercises he undertook as such a practitioner were beneficial to his health. 

6.Both documents indicate that the applicant was arrested by the police  because of his affiliation with Falun Gong and that he had been placed in a house of detention after having been beaten by the police and held there for a period of about a month.  Both statements indicate that the applicant was “beaten blue and black” whilst in detention.

7.In its decision the Tribunal notes the applicant’s claims at [CB 80] and it also notes the fact of the hearing invitation, the applicant’s non‑response to it and his non‑attendance.  The Tribunal came to the conclusion that it was unable to be satisfied:

“Without further details, clarifications, corroborative evidence and without having had the opportunity to explore the claims with the applicant at a hearing and test the evidence that the applicant has ever been a Falun Gong practitioner or that he has ever engaged in Falun Gong activities.”

The Tribunal found that it could not be satisfied that the applicant had ever been detained or had repented or that if he returned to China he would be arrested and imprisoned. 

8.The applicant filed an amended application on 27 March 2006 in which he alleges that the Tribunal fell into jurisdictional error by not providing him with procedural fairness in connection with the making of the decision.  Although no particulars are provided, I gather from what the applicant told me today that the lack of procedural fairness centred around his not being advised of the hearing or not being given a proper opportunity to present his case.

9.As the applicant was sent an invitation to a hearing in accordance with the provisions of Division 7A of the Migration Act 1958 (the “Act”) and as there is no evidence that the letter was returned to the Tribunal (which would not in itself invalidate the notice) the Tribunal was within its powers to proceed to decide the case pursuant to the provisions of s.426A in the absence of the applicant.

10.I have, in the past, made reference to the problems associated with the ability of an applicant to give an address of a post office box in the centre of Sydney when that person lives on the outskirts of the city and is unlikely to make regular attendances at the post office box. I have suggested that these post office boxes, which all have a similar address, be investigated by the Department to ensure that they are what they say they are and are not part of a service which might be in breach of the Act and Regulations governing the registration and operation of migration agents. I have considerable doubt that the applicant did not receive this letter in any event as he appears to have received every other letter addressed to him at that address.

11.The other grounds raised by the applicant are all statements of fact which, at best, could be seen to be requesting the court to indulge in an impermissible merits review.  When the applicant appeared before me today he told me that the Tribunal had not considered his evidence carefully and rejected his application without hearing important evidence.  He appeared to be under the impression that the Tribunal had accused him of being here only for illegal work.  Statements of this type do not appear in the Tribunal’s decision and are not something that can be properly imputed to it.  The applicant told me that he was given this information by a friend who, it would appear, is the same friend that told him to obtain the post office box.  It is unfortunate that the applicant has relied on that person in any way. 

12.I am unable to find that the Tribunal fell into jurisdictional error in making this decision. The Tribunal expressed itself clearly as failing to have reached that state of satisfaction mandated by s.65. The application is dismissed. The applicant is ordered to pay the respondent’s costs which I assess in the sum of $1,900. The name of the first respondent will be amended to the Minister for Immigration and Citizenship.

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

Associate: 

Date: