SZIQY v Minister for Immigration
[2006] FMCA 1246
•1 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIQY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1246 |
| MIGRATION – Protection visa – RRT – applicant did not appear at tribunal hearing – no jurisdictional error. |
| Migration Act1958, s.424A |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA; 78 |
| Applicant: | SZIQY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOTHER |
| File number: | SYG 1074 of 2006 |
| Judgment of: | Phipps FM |
| Hearing date: | 1 August 2006 |
| Date of last submission: | 1 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2006 |
REPRESENTATION
| The Applicant appearing in person |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs fixed in the sum of $4,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1074 of 2006
| SZIQY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR |
Respondent
REASONS FOR JUDGMENT
The applicant has applied for an adjournment of this hearing.
The applicant applies for a prerogative writ in respect of a decision of the Refugee Review Tribunal handed down on 14 March 2006.
The applicant applied for a protection visa and the Refugee Review Tribunal affirmed the decision of the delegate to refuse the protection visa. The applicant claims he will face persecution if he returns to the Peoples' Republic of China for three reasons. First, because he is a Christian; second, because he and his wife bore a second child in breach of the one child policy; and third, because he escaped from China, an action regarded as treason by the Chinese authorities.
The reason that the applicant gives for wanting an adjournment is that he wants to obtain evidence that he was fined in China and had surgery. The applicant did not appear at the Tribunal hearing. In his application for a protection visa he stated that he and his wife had disobeyed the one child policy and had had a second child. The applicant claims that he and his wife were forced to pay a heavy fine and that he was forced to have a vasectomy. The application filed in this court on 6 April 2006 alleges that jurisdictional error has been made and that procedural fairness has been denied. The desire to obtain further evidence might in the right case be part of a claim of denial of procedural fairness.
It might arise if an applicant was claiming that a Tribunal member had not permitted that applicant time to obtain evidence and in a hearing before a court for prerogative writ it might be relevant on the issue of whether a denial of procedural fairness had any effect.
This is not one of those cases. In this case the applicant was informed that the Tribunal could not make a decision on the papers and so the Tribunal intended to have a hearing. That was done by letter sent to the applicant's representative on 1 February 2006. The applicant sent a response to the hearing invitation indicating that he did not want to come to a hearing. The Tribunal’s letter of 1 February also advised a hearing date had been set for 28 February 2006 however the applicant did not attend the hearing. Therefore the applicant had an opportunity to inform the Tribunal that he needed more time or that he wanted the Tribunal to seek some information from mainland China. He was not denied that opportunity. That means the question of obtaining further information or evidence from mainland China is not relevant to the procedural fairness ground in the hearing in this court.
In addition, a court hearing such as this does not deal with the substantive merits of the claim for a protection visa. It can only deal with claims of jurisdictional error by a Tribunal. Any further evidence that the applicant might be able to obtain from mainland China is not relevant to this court hearing. The applicant does not allege that he needs more time to prepare for this hearing apart from the one ground that he has given. Therefore the application for an adjournment is refused.
The applicant has been refused a protection visa and that decision affirmed by the Refugee Review Tribunal. The Tribunal accepted that the applicant is a citizen of the Peoples' Republic of China. He arrived in Australia on 2 October 2005. He lodged an application for a protection visa on 11 October 2005. A delegate of the Minister for Immigration refused to grant a protection visa on 23 November 2005. On 20 December 2005 the applicant applied to the Tribunal for review of that decision. On 20 December 2005 the district registrar of the Tribunal wrote to the person nominated by the applicant as his representative acknowledging receipt of the application to the Tribunal. Under the heading, “What will the Tribunal do now”, the letter set out that the Tribunal had asked the department for its file and then stated that when the file was received the Tribunal will consider the review application. Then under the heading, “Will I be invited to a hearing of the Tribunal”, the letter states that after looking at the information the member may make a decision in your favour or invite you to attend the hearing at the Tribunal.
The letter then has a heading, “What is a hearing and why is it important”, and then gives information about the importance of a hearing. On 1 February 2006 the district registrar again wrote to the applicant's representative and said that the Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone. The letter gave notice of a hearing on Tuesday, 28 February 2006 and set out the place and time. The letter refers to a response to hearing invitation form, that was completed by the applicant and returned to the Tribunal and under the heading, “Do you want to come to a hearing”, a NO box was ticked. The Tribunal therefore proceeded to determine the application using the information it had before it.
The Tribunal set out the applicant's claims and evidence. The applicant stated that he is a farmer, married with two children. He left China in October 2005 using a passport issued in his own name in August 2002. He lived in Beijing between mid 2001 and his departure in October 2005, before he had lived since birth in a provincial area.
The applicant stated that his aunt is a Christian. He visited her place four times in 1985 and 1986. In 1988 his aunt was detained because she held a Christian gathering. He was detained for two days.
He claimed there was no religious freedom in his village. The applicant stated that he disobeyed China's one child policy. The applicant's wife was told to have an abortion but did not. He claimed he and his wife were forced to pay a heavy fine which resulted in the family living in poverty. The applicant claimed he was forced to have a vasectomy.
The applicant stated that he feared returning to China, if he returns he will be detained and tortured. He will be put in jail and asked to pay more penalties, he claimed his house will be demolished and he and his family will be mistreated. He claimed that his escape from China will be treated as treason and he would be put in jail if he returns. In its findings and reasons the Tribunal set out the applicant's three claims. The applicant claims he will face persecution first because he is a Christian, second because of the breach of the one child policy and third his treason because he escaped from China.
The Tribunal dealt with each of those claims and in each of them concluded that because it had no further information other than that contained in the application it was unable to be satisfied that there is a real chance of persecution if he returned to China. The Tribunal dealt with each of the three claims individually. In summary, the applicant failed before the Tribunal because he did not appear to give evidence and did not provide any more information other than that set out in the original application. The Tribunal affirmed the decision not to grant a protection visa. The application to this court sets out two grounds for the application; one, jurisdictional error has been made; two, procedural fairness has been denied. No particulars are given.
There are no arguable jurisdictional errors in the Tribunal decision. The Tribunal has set out each basis for the applicant's claim.
The Tribunal has considered each basis. It has considered the material it has before it and concluded that it is unable to be satisfied of any of the claims. So far as procedural fairness is concerned the applicant was given notice of the hearing before the Tribunal and so had the opportunity to appear before the Tribunal to give further evidence or to provide further information if he wanted to. Mr Reilly, who appears for the first respondent has dealt with the question of whether s.424A of the Migration Act 1958 (Cth) has been complied with. That section requires a Tribunal to give an applicant written notice of anything which might be the reason or part of the reason for the Tribunals decision. Subsection 424A(3) excepts from that requirement information supplied to the Tribunal by an applicant.
The decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 79 ALJR 1009 and Al Shamry v Minister for Immigration and Multicultural and Indigenous Affair [2001] 110 FCR; 27 are authority for the proposition that there can be a breach of s.424A(1) if the information that formed part of the reason of the Tribunal was information that formed part of the visa application.
The application of those decisions to a case such as this has been dealt with, amongst other cases by Bennett J in SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA; 78. In that case the procedure followed by the Tribunal prior to the hearing was the same as in this case. That is the Tribunal wrote to the applicant informing him that it had asked the Department to send its file to the Tribunal so that the Tribunal could review the application for a protection visa.
A similar or identical letter was sent to the applicant in this case on 20 December 2005. In the decision by her Honour, the Tribunal sent a letter which stated that the Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone. A letter with identical wording was sent in this case on 1 February 2006. In the case her Honour considered that the applicant had not appeared at the hearing and the Tribunal in that case concluded that it was unable to be satisfied on the limited information of the applicant's claims. The same has occurred with the Tribunal in this case. At paragraph 23 of her judgment her Honour referred to a number of decisions by other judges of the Federal Court and said that in doing this the Tribunal was identifying the deficiencies or inadequacies in the applicant's case. It was not relying on information communicated to or received by the Tribunal but setting out its thought processes. There was no information the Tribunal was obliged to give to the applicant by reason of s.424A.
Consequently in this case the Tribunal has either satisfied its requirement under s.424A or it had no obligation to give notice of inadequacies it identified in the applicant's case. No jurisdictional error or lack of procedural fairness exists in this case. The application is dismissed.
Application has been made for costs. The usual rule that a successful party is entitled to an order for costs should be applied in this case. The amount sought, $4600 is less than the amount that is fixed as a lump sum by the court rules for a migration case that goes to a defended hearing. I allow costs in the amount of $4600.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date: 29 August 2006
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