SZIQC v Minister for Immigration - [2006] FMCA 1886

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIQC v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1886

MIGRATION – RRT decision – Chinese applicant claiming political persecution – consent to decision without hearing – no jurisdictional error – actual notification before 1 December 2005 – application for judicial review incompetent.

Migration Act 1958 (Cth), ss.417, 424A(1), 425(2)(b), 441A, 476, 477
Migration Regulations 1994 (Cth), regs.4.39, 4.41

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.42

Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152
NBHP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1857
NBHP v Minister for Immigration [2005] FMCA 998 per Smith FM
SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
SZIVA v Minister for Immigration & Anor [2006] FMCA 1494

Applicant:

SZIQC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1014 of 2006

Judgment of:

Smith FM

Hearing date:

4 December 2006

Delivered at:

Sydney

Delivered on:

4 December 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1014 of 2006

SZIQC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 5 April 2006 seeking orders that the respondent show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 6 March 2001 and handed down on 29 March 2001. The Tribunal affirmed a decision of a delegate made on 31 March 2000 not to grant a protection visa to the applicant.
At the first court date, the first respondent foreshadowed an application for the dismissal of the application on the ground of incompetence by operation of the time limit under s.477 of the Migration Act when read with Sch.1 cl.42 of the Migration Litigation Reform Act 2005 (Cth). As I have discussed in SZIVA v Minister for Immigration & Anor [2006] FMCA 1494 (“SZIVA”) and other cases, these provisions have the effect that the Court does not have jurisdiction to review a decision made prior to 1 December 2005, if the application is brought after 23 February 2006 and if the Court is satisfied that the applicant had “actual (as opposed to deemed) notification” of the decision prior to 1 December 2005.
The issue of competence was raised by way of a response and written submissions by the first respondent which were filed prior to a listing before Emmett FM on 22 September 2006. Unfortunately her Honour was unavailable on that day, and the matter was transferred to my docket. I received evidence from the parties, including oral evidence from the applicant, but formed the opinion that it would not be appropriate to decide the issue of competence at an interlocutory stage, and that it would be preferable for the matter to be listed for a final hearing. I therefore listed the matter for a final hearing today, adjourned the hearing in relation to competence to the final hearing, and gave directions allowing the parties to file further evidence and submissions.
The applicant has not taken the opportunity to file any further material, notwithstanding that he has now been served with a Court Book and has been given a referral for free advice. His unsworn statements today from the bar table confirmed the effect of his previous sworn evidence, as I shall indicate below. The Minister’s representative did not request that I obtain further sworn evidence from the applicant, and did not seek to cross‑examine him further. In those circumstances, and for reasons which I shall indicate, I am able to decide the case by accepting the truth of the factual statements made today by the applicant from the bar table.
I shall address the issues of competence and jurisdictional error in relation to the Tribunal’s decision, after narrating the history of the matter.
The applicant arrived in Australia in April 1998 on a visitor’s visa. He claimed to have travelled on a Hong Kong British passport in a different name. On 9 March 2000, an application for a protection visa was lodged on his behalf by an agent, Simon Feng. The applicant authorised Mr Feng to act on his behalf in relation to his dealings with the Department of Immigration, and requested that correspondence should be sent to Mr Feng as well as to himself. The application attached a notice under the migration agents’ code of conduct, which said:
I confirm that I have read the abovementioned notice and that I have received advice in writing from my adviser to the effect that in their opinion my application has no prospects of success.
Notwithstanding that advice, I herewith direct my adviser to proceed to file an application for permission to remain permanently in Australia in accordance with my instructions.
The application attached a typed statement signed by the applicant explaining why he sought protection in Australia against return to the People’s Republic of China. It said:
My name is [name]. I was born China to a common family.
In my home town, the Chinese Communist Government Officials were very corrupt and we young people were very angry about such corruption.
I had several close friends and together we always fought against those local officials, so we were severely punished. We formed a group to resist such punishment and as a result the eldest one in our group who was our leader was arrested. By then we realised that things were very serious because the local PSB (Public Security Bureau) questioned us one by one, forcing us to confess that we had formed a counter‑revolutionary group. We were told one day, that we could all be arrested because the PSB wanted to punish us as an example to other people in our home town that nobody can defy them. My parents were extremely worried. They asked their friends and relatives to help get me out of China in order to avoid punishment. Finally they managed to get me to Hong Kong where they were able to secure a Hong Kong British Passport, which was not in my own name. My parents then felt not so worried because they thought that I could stay in Hong Kong indefinitely in complete safety. But they were wrong because soon Hong Kong was to be returned to China and if I stayed there I would suffer again. So I said to my parents that I want to leave Hong Kong and again my parents asked friends for help to get me a Visa to enter Australia. On the 8th April 1998 I arrived in Melbourne. Before my arrival in Australia I traveled from Hong Kong to Indonesia.
…
I talked to my family in China and they told me that the local PSB are still questioning our group and that another two had been arrested. So if I went back to China now I would definitely be arrested as I was quite active in that group.
However, the applicant did not provide any details of his claims nor corroborative evidence either to the Department or subsequently to the Tribunal, other than what purported to be certificates of his birth and unmarried status.
A delegate refused the application on 31 March 2000, and Mr Feng lodged an application for review with the Refugee Review Tribunal on 4 May 2000. The application gave an address for service, being the applicant’s claimed home address at Cabramatta, and answered “Yes” to the question “Do you have an adviser you authorise to act for you in relation to this application?”, referring to Mr Feng. The application was signed by the applicant, and attached a statement signed by him which repeated verbatim the statement given to the Department.
On 19 January 2001, the Tribunal received a letter from the agent informing the Tribunal of a new address at Cabramatta as “the current contact address of my client”. The Tribunal sent a letter to the applicant at that address, with a copy to the agent, dated 24 January 2001. The letter invited the applicant to attend a hearing of the Tribunal on 27 February 2001.
On 6 February 2001, the Tribunal received a “Response to Hearing Invitation”, which has a signature on it which the applicant identified under oath on the last occasion as his signature. This indicated that the applicant did not want to come to the hearing, and that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.
When questioned under oath on the last occasion, the applicant claimed not to have a memory of being told by his agent that he had been invited to come to a hearing. He said, among other statements: “I think it didn’t happen, … I can’t remember, … it is such a long time ago I can’t remember”. However, today he made an unsworn statement, without prompting, that his agent had suggested to him that it was not necessary to attend the Tribunal’s hearing. This confirmed a finding which I would have made upon the documents and his sworn evidence that, on the balance of probabilities, he was aware of the hearing invitation and authorised his agent to send to the Tribunal a “No” response to the hearing invitation. I consider that the present case is distinguishable from Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152 (“SZFML”), where the Court held that an unauthorised consent was ineffective to allow the Tribunal to dispense with a hearing.
In my opinion, as a result of the Tribunal receiving the applicant’s consent in the present case, it was authorised to decide the review without taking any further steps to obtain evidence from the applicant, whether at a hearing or otherwise (see s.425(2)(b), and SZFML at [54]‑[65], also my decision in NBHP v Minister for Immigration [2005] FMCA 998 per Smith FM at [25]‑[44], upheld by Jacobson J in NBHP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1857).
In its statement of reasons, the Tribunal referred to the hearing invitation and the advice from the applicant that he did not wish to attend. It said: “This matter has therefore been determined on the evidence available to the Tribunal”.
The Tribunal then identified the claims made by the applicant in his statement. It pointed to apparent gaps in the relevant information given. It described his evidence as “very unsatisfactory. He makes general claims, and without being able to clarify certain matters, I am not disposed to attach credibility to his claims”. The Tribunal concluded:
Without at least the above information, I am not able to be satisfied as to the credibility of the applicant’s claims of belonging to a group, being wanted by police, and facing future punishment by police. I am not satisfied, on the basis of the evidence before me, that the applicant has a well‑founded fear of persecution for a Convention ground in China or in Hong Kong.
I have considered the procedures and reasoning of the Tribunal and can see no arguable jurisdictional error affecting its decision.
The applicant’s application to the Court contained three grounds (numbering in original):
1.The Tribunal’s decision was infected with jurisdictional error in circumstances where it came to its conclusion about the lack of persecution upon refoulement on an improper and unreasonable basis.
(a) The Tribunal lacked probative evidential support for such conclusion and retired on irrelevant considerations and inappropriate application of independent country information.
2.The Tribunal has failed to comply with its obligations under the section 424A of the Act. The Tribunal must give to my particulars of any information that the Tribunal considers would be reason.
In relation to the first two grounds, there is no basis for arguing that the Tribunal made the errors of the type referred to. No particulars have been given. The Tribunal’s reasoning was entirely reasonable. It did not consider irrelevant matters, and in fact made no reference to independent country information.
In relation to the third ground, I can see no arguable failure by the Tribunal to comply with s.424A(1), since in my opinion its decision was not at all based on information coming within that section, but was based upon the manifest insufficiency of the claims presented by the applicant (c.f. Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, and SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801).
As I have indicated above, the applicant has not presented any amended application nor written submissions, and he had no submissions today to show jurisdictional error by the Tribunal. The present application must therefore be dismissed, even if it were competently brought within the jurisdiction of this Court.
However, I consider that I should also make findings in relation to the jurisdictional issue. The evidence as to the “actual notification” of the Tribunal’s decision to the applicant (see my discussion in SZIVA) was as follows.
The Tribunal’s decision was posted to the applicant and to his agent by a letter dated 29 March 2001. There is no evidence that any person attended the handing down to receive a copy on that day, although I note that the applicant’s original application to this Court might seem to assert that notification was received on the date of handing down.
The applicant in his affidavit which accompanied the application to this Court, referred to lodging his application to the delegate for a protection visa, and to his application to the Tribunal made by his agent. His affidavit continued:
On 6 March 2001, the Tribunal affirms the decision not to grant a protection visa and then the migration agent wrote a letter to the Minister about s417. That’s why I file the Application to the Court.
The evidence before the Court contains a letter dated 19 April 2001 addressed to the then Minister. This referred to the Tribunal file number, and said:
I have previously applied to Onshore Protection, then to Refugee Review Tribunal, to be granted Refugee Status in Australia. Unfortunately my applications were rejected in both occasions.
I am seeking your intervention with regard to my case under the general term “Humanitarian Grounds.” I am applying to you, personally, under Section 417 of the Migration Act and I ask that you review the Tribunal’s findings and decision accordingly.
When questioned on the last occasion about his reference in his affidavit to the s.417 request, the applicant gave unresponsive or vague answers, but appeared to admit that he was aware that the agent had written a s.417 letter after he had lost his case in the Tribunal. He admitted having a copy of the letter sent to the Minister, which he had given to his current helper before signing the affidavit in support of the present application.
On the documents and his sworn evidence, I find that prior to 1 December 2005 the applicant at least was aware that his agent had received the Tribunal’s decision and statement of reasons with its notification, was able to read their contents if he wished, had discussed the outcome with the agent, and had authorised the agent to make a request to the Minister.
The applicant’s unsworn statements today accepted without hesitation that the s.417 letter contained his signature, and he said that he had signed it after the letter had been prepared by his agent. His complaint was that the agent did not subsequently tell him that the agent did not also apply to the Federal Court for judicial review.
On all the applicant’s evidence, I find that there was due notification of the Tribunal’s decision to the applicant, by way of posting to the applicant at the address for service which had been provided by the applicant’s agent to the Tribunal in its letter received on 19 January 2001, pursuant to the provisions of s.441A and regs.4.39 and 4.41 of Migration Regulations 1994 (Cth) as they then stood (see my discussion in SZIVA at [54]‑[62] – I note that the Tribunal’s notification was sent before the commencement of the 2001 amendments). I also find that the applicant received actual notification of the decision prior to 1 December 2005, according to my interpretation in SZIVA.
For the above reasons, I would also dismiss the application on the ground of its incompetence.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 22 December 2006