SZIPH v Minister for Immigration
[2006] FMCA 1017
•14 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIPH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1017 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – RRT hearing delayed – whether RRT gave sufficient notice of the delayed hearing considered – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.425A, 427 Migration Regulations (Cth) |
| SZCZX v Minister for Immigration [2006] FMCA 786 SZEFM v Minister for Immigration [2006] FCA 78 SZFKM v Minister for Immigration [2006] FMCA 1333 SZGPB v Minister for Immigration (No 2) [2006] FCA 587 |
| Applicant: | SZIPH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG968 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 14 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG968 of 2006
| SZIPH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was handed down on 28 February 2006. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant claimed persecution in China. Background concerning the applicant’s protection visa claims and the RRT decision on them are set out in the Minister’s amended written submissions filed on 12 September 2006.
I adopt as background for the purposes of this judgment paragraphs 2 to 5 of those written submissions, with necessary amendments:
The applicant applied for the visa on 19 September 2005: court book, pages 1-27. The delegate refused the visa on 14 November 2005: court book, pages 28-38 (incorrectly stating the date as 14 September 2005), and the applicant applied to the RRT for review on 6 December 2005: court book, pages 39-42.
On 16 December 2005 the RRT wrote to the applicant inviting him to a hearing on 17 January 2006: court book, pages 43-44, which the applicant accepted: court book, page 45. On 29 December 2005 the RRT wrote to the applicant changing the hearing date to 27 January 2006: court book, page 46, and on 16 January 2006 again wrote to the applicant changing the hearing date to 2 February 2006: court book, page 49. The applicant accepted the invitation on 25 January 2006: court book, page 50, and the hearing took place as scheduled: court book, page 58.
The applicant claimed to fear persecution in China, although on what Convention basis is unclear. He claimed to have been arrested for three days in September 2002 and lost his job in 2004 after joining people exercising in a park who he later discovered were Falun Gong (FG) practitioners. He claimed to have been unable to find employment as a suspected FG practitioner, even though he was not such a practitioner. He claimed to have come to Australia for stable employment and to avoid harassment. See generally court book, pages 65-68.
The RRT found that the applicant was not credible and rejected his essential claims, noting that it was implausible that the applicant would choose to join a group exercising given the crackdown on FG in China, and rejected his claim that this was just “bad luck”. The RRT also noted that the applicant’s ability to leave China legally on his own passport indicated that he was not of any interest to the authorities. The RRT concluded that the applicant had come to Australia to seek remunerative employment. See generally court book, pages 68-70.
The present proceedings began with a show cause application filed on 31 March 2006. That application asserts notification of the RRT decision on 9 March 2006. On that basis, I find that the application was filed within time.
This matter first came before me on 1 May 2006. At that time, because of the lack of particularity in the applicant’s claims, it was not apparent to me whether or not the application raised an arguable case of jurisdictional error. I made orders for the filing of additional material and directed that there be a show cause hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
That show cause hearing was conducted on 17 July 2006. At that time, I found that the show cause application filed on 31 March 2006 failed on its face to disclose an arguable case. However, it appeared to me that there was an issue meriting a final hearing. That issue is whether the RRT met its obligation to give a minimum period of notice of a hearing pursuant to the Migration Act 1958 (Cth) (“the Migration Act”) and the Migration Regulations (Cth). I ordered that, notwithstanding my finding that the applicant had failed to disclose an arguable case, the applicant had leave to amend his application to assert a breach of s.425A of the Migration Act in relation to the hearing invitation dated 16 January 2006 appearing at page 49 of the court book filed on 2 May 2006.
The opportunity thus provided to the applicant was subject to the proviso that he file an amended application raising the issue no later than 18 August 2006. An amended application raising the issue was filed on 4 September 2006. The Minister was not disadvantaged by the late filing of the application and Mr Reilly did not seek to take any point flowing from the lateness of its filing. Unhelpfully for the applicant, the amended application asserts that he was notified of the hearing 16 days before the hearing. If that assertion is to be taken at face value, the RRT would not have breached its obligations under s.425A. That is because the applicant would have actually received notification of the hearing more than 14 days before the hearing. However, there is no evidence of precisely when the applicant did receive the hearing application. I heard argument on the basis that resort might need to be had to the deemed receipt provisions of the Migration Act and Regulations. If resort is required to those provisions, then it is not disputed that less than 14 days notice was given by the letter dated 16 January 2006.
The Minister’s written submissions deal with that issue in paragraph 6. As noted in those submissions, in SZCZX v Minister for Immigration [2006] FMCA 786 I followed the decision of Bennett J in SZEFM v Minister for Immigration [2006] FCA 78 as I felt bound to do. More recently, I took the same view in SZFKM v Minister for Immigration [2006] FMCA 1333[1]. I consider that I am bound to continue to follow the decision in SZEFM in circumstances that are not distinguishable, pending the decision of the Full Federal Court in SZFML v Minister for Immigration. Pending that decision, I agree with and adopt for the purposes of this judgment paragraph 6 of the Minister’s written submissions with necessary amendments:
The only ground raised in the amended application is that the RRT failed to comply with s.425A of the Migration Act as he was only given 16 days notice of the hearing in the RRT’s letter of 16 January 2006. While no submissions have been received from the applicant, he presumably asserts that the 14 day notice period prescribed for s.425A(3) in reg 4.35D(b) of the Migration Regulations applies to the letter of 16 January 2006 and has not been complied with because s.441C(4) of the Act does not deem the applicant to have received the letter of 16 January 2006 until seven working days thereafter. Such an argument [if put on the basis of actual as opposed to deemed receipt of correspondence] cannot be put in the absence of evidence from the applicant as to when he actually received the RRT’s letter of 16 January 2006, as reg 4.35D provides that the 14 day period “starts when the applicant receives notice of the invitation to appear”, and this is a matter on which he would need to give evidence to make out his case of a breach of reg 4.35D. Moreover SZEFM v Minister for Immigration [2006] FCA 78 (Bennett J) at [10-13], followed in SZCZX v Minister for Immigration [2006] FMCA 786 (Driver FM) at [7], suggests that the RRT was not acting under s.425A(3) in its letter of 16 January 2006, but under s 427(1)(b), to which reg 4.35D does not apply, although compare SZGPB v Minister for Immigration (No 2) [2006] FCA 587 (Rares J) at [49-51].
[1] Although I noted some potential difficulties flowing from the reasoning in SZEFM
If the applicant wishes to protect his interests, pending the outcome of the Full Court’s reserved judgment, he has the right of appeal to the Federal Court. I find that the decision of the RRT is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $4,500. I note that, under the Court rules, a sum of $5,000 is prescribed, but the Minister properly seeks a lesser amount. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $4,500.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 September 2006
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