SZIOT v Minister for Immigration
[2006] FMCA 938
•27 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIOT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 938 |
| 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 – where applicant did not attend Tribunal hearing – Tribunal’s finding of insufficient information – privative clause decision – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 426A, 474, 494B |
| SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 Plaintiff S157 v. Commonwealth of Australia [2003] HCA 2 SJSB & Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 225 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAST & Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 |
| Applicant: | SZIOT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 931 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 June 2006 |
| Date of last submission: | 27 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Rose |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,000.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 931 of 2006
| SZIOT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister not to grant the Applicant a protection visa. The decision was made on
20th February and handed down on 9th March 2006.
Background
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 3rd September 2005. He lodged an application for a Protection (Class XA) visa on 13th October 2005 but it was refused on 23rd November. The Applicant then sought a review of that decision by the Refugee Review Tribunal.
The Applicant lodged his application for review at the Refugee Review Tribunal on 16th December 2005. He did not provide any other document to the tribunal at that time. A copy of the application appears at pages 46 to 49 of the Court Book.
On 23rd December 2005 the Tribunal wrote to the Applicant saying 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. The Tribunal told the Applicant that if he wanted to come to a hearing it would be on Monday 20th February 2006 at 10:00 am.
A copy of the Tribunal's letter to the Applicant appears at page 52 of the Court Book. The Applicant did not attend the Tribunal hearing. The Tribunal's document entitled: ‘Check list - no reply to hearing invitation’ appears at page 54 of the Court Book. The check list shows that no reply was received and the Applicant had not advised the Tribunal of any migration advisor. The Tribunal noted that the Applicant did not respond to the hearing invitation and did not attend the hearing.
The Tribunal proceeded to make a decision on the review without taking any further action to enable the Applicant to appear, relying on its power under s.426A of the Migration Act.
The tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 67 and 68 of the Court Book. The Tribunal was satisfied that the Applicant was a citizen of the People's Republic of China. The Tribunal described the Applicant's claims about his Christian beliefs as:
A series of vague and general claims
at page 67 of the Court Book.
The Tribunal was not satisfied that the material provided by the Applicant was sufficient to establish his claims, stating at page 68:
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, the Tribunal is not satisfied that the Applicant has ever been a Christian or that he was ever involved in any Christian related activities in China.
The Tribunal was not satisfied that the Applicant had suffered or would suffer any of the harm that he claimed. Because of this, the Tribunal was not satisfied that the Applicant had a well founded fear of persecution for a convention related reason and affirmed the decision not to grant a protection visa.
The application for judicial review
The Applicant filed an application under the Migration Act on
29th March 2006. He seeks orders setting aside the Tribunal decision and remitting the application for a protection visa to the Tribunal for determination according to law.
The ground upon which the Applicant relies is a breach of sub-s.425(1) of the Migration Act claiming that:
The Applicant was not ever invited by the Tribunal requesting the Applicant to appear before the Tribunal before affirming the decision, including that the Tribunal did not make any efforts to contact - inform the Applicant. The Applicant was not given any opportunity to present her -
This is a typing error and should read "his" -
case in the Tribunal.
The Applicant filed an affidavit in support of this application attaching a copy of the Tribunal's decision. The affidavit refers to the Applicant's application for a protection visa and for review of the delegate's decision, and then sets out in paragraphs 8 to 16 a summary of the Applicant's claims for a protection visa. The affidavit does not contain any material referring to the Applicant's claim that the Tribunal did not send the Applicant an invitation to the Tribunal hearing.
The Applicant was granted leave to file an Amended Application by 5th June 2006 but no Amended Application has been filed. The Applicant has not filed any written outline of submissions. He relies on his original application and his affidavit.
The solicitors for the Respondents filed a written outline of submissions on 16th June and immediately forwarded a copy to the Applicant. The Applicant confirmed that he had received this document and that he had the opportunity to go through that outline of submissions.
The solicitors for the Respondent submit that the Tribunal decision in this case is a privative clause decision as defined by s.474(2) of the Migration Act. Sub-section (1) of s.474 makes a privative clause decision final and conclusive and provides that it is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court.
I am referred to the decision of Plaintiff S157 v. Commonwealth of Australia [2003] HCA 2, although I note that no citation is provided in the outline of submissions. Nevertheless, I am satisfied that the decision is sufficiently well known that that will not create a hindrance to the Court today.
The decision in Plaintiff S157 makes it clear that not only is s.474 of the Migration Act validly enacted, it does operate to prevent judicial review of all decisions that come with its purview except those vitiated by jurisdictional error.
The Respondents submit, correctly in my view, that the sole ground in the application is a claim for breach of s.425 of the Migration Act. The Applicant claims that he was never invited to the Tribunal hearing.
I note from the Court book that a letter which appears to me to comply with s.425 of the Act was in fact sent to the applicant on 23rd December 2005. It was addressed to him at the post office box number in Haymarket that he provided as his address for correspondence. I note that the Court Book contains copies of other letters written to the Applicant from the Tribunal all at that same address.
The Applicant confirmed to the Court when he attended today that he had received several letters from the Tribunal and did not, I believe could not, provide any explanation as to why a letter inviting the Applicant to attend a hearing was not received. The Applicant said that he was notified of the Tribunal decision on the day it was handed down, 9th March, because his friend told him.
The Respondents refer the Court to the letter of invitation which they submit was sent to the Applicant under the provisions of s.494B(4) addressed to the Applicant at his nominated address. They also submit there is no evidence to show that either the Applicant's address had changed, which it appears not to have, or that the Tribunal knew or had any idea of any change of address, if in fact there had been such change.
The submission is made, and correctly in my view, that the hearing invitation is taken to have been received by the Applicant in accordance with s.494C(4).
It is quite clear that the letter under s.425 set out that the Tribunal was unable to make a decision in the Applicant's favour without something more. The Applicant did not provide any further information to the Tribunal, nor did he attend the hearing.
The Respondents submit correctly that the Tribunal did comply with its obligations under s.425A of the Act and that the Tribunal did correctly exercise its power under s.426A.
As far as the Tribunal decision is concerned, the Applicant has not raised any jurisdictional error. He referred today in his oral submissions to his previous Christian religious belief in China and his fear that he would have problems if he were to return to China. He said:
I can't go back now.
The Applicant's affidavit reiterates his factual claims but the Court cannot undertake a merits review. The Court is conducting judicial review which means that the Court does not substitute the Court's view of the facts for the Tribunal's view. So long as there is evidence to support the factual conclusions made by the primary decision maker, then there is no jurisdictional error that warrants intervention by the Court.
In this case the Tribunal was just not satisfied that the Applicant met the criteria for the grant of a visa. I am referred by the Respondents to the decision of the Full Court of the Federal Court in SJSB & Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 225 at [15].
I am also informed that that decision was affirmed in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17].
In paragraph 15 of SJSB the Full Court said that sub-section 65(1) of the Act:
Does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of a visa in question has been satisfied.
In my view the Tribunal did take the correct approach in affirming the decision. I am referred to the decision of NAST & Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4], where the Full Court said:
In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held correctly that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.
In this case the Tribunal wished to have further details about parts of the Applicant's account. The Applicant did not provide any further written material nor did he attend the hearing. The fact is that the information before the Tribunal was insufficient to enable the Tribunal to be satisfied. In the circumstances the Tribunal had no option but to affirm the decision of the delegate. I have read through the decision. I can discern no jurisdictional error and indeed the Applicant has not pointed to any. As there is no jurisdictional error the decision is a private clause decision attracting the protection of s.474 of the Migration Act. The application will be dismissed.
There is an application for costs brought on behalf of the First Respondent Minister. The Minister seeks an order that the Applicant should be responsible for the Minister's costs in the sum of $2,000.00. The first matter that I have to decide is whether or not I should make an order for costs. In this jurisdiction costs follow the event although costs are discretionary and there may be a reason why the Court would not make such an order.
The Applicant has told the Court that he does not have the funds to meet an order for costs even in the relatively modest sum of $2,000.00 which is being sought today. That is not to my mind a reason not to make an order for costs. I will take that situation into consideration when assessing time to pay. Bearing in mind the preparation that has been undergone in the production of a Court Book and written submissions together with the attendance of a solicitor to defend the case for the Respondent today I am of the view that the sum of $2,000.00 is well within the scale. Indeed, I describe it as modest.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 30 June 2006
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