SZISH v Minister for Immigration

Case •

[2006] FMCA 1147

•

3 August 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZISH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1147
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 – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 426A, 474
SBBS v Minister for Immigration and Multicultural Affairs [2002] FCAFC 361
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Selvadurai v Minister for Immigration and Multicultural Affairs [2002] FCA 342
SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 249
Applicant: SZISH
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 1128 of 2006
Judgment of: Scarlett FM
Hearing date: 3 August 2006
Date of last submission: 3 August 2006
Delivered at: Sydney
Delivered on: 3 August 2006

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Mr Sinnadurai
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

  2. The Application is dismissed. 

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1128 of 2006

SZISH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 28th February 2006 and handed down on 21st March 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection visa. 

Background

  1. The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 26th September 2005. On 7th October 2005 he lodged an application for a Protection (Class XA) Visa. That application was refused on 8th December 2005 so the Applicant sought a review of that decision from the Refugee Review Tribunal. 

  2. The application for review, notwithstanding the fact that it appears to have been signed on 28th December 2005, was not lodged with the Tribunal until 9th January 2006.

  3. The Applicant provided his home address but indicated in section D that he wished all correspondence to be sent to an address at 460 Pitt Street, Sydney. He did not appoint a person as an authorised recipient but gave the address at 460 Pitt Street as his mailing address for all correspondence. 

  4. Whilst the application had given a residential address, the boxes on the form in section B for telephone and fax numbers, including mobile phone number, were all filled in with the words "N/A", meaning “not applicable”. No telephone number appears on the application for review. 

  5. Accompanying the application for review is a typed statement that takes up approximately two thirds of an A4 page. The Applicant claims a well-founded fear of persecution on the basis that he is a member of Falun Gong.  He claimed to have been arrested by police and put into a custody centre for three months. He claims he was also fined “a big amount of money” by the authorities. They warned him to terminate his business or they would arrest all of him and his colleagues without any mercy.  He claimed to have received warnings many times and from time to time he was asked to go to re-education classes.

  6. He claimed to have no choice but to leave his country and claimed:

    I understand that the authority would put me into gaol again if I still practise Falun Dafa.

  7. The Tribunal replied to the Applicant at his mailing address on 10th January 2006 acknowledging receipt of his application and referring to the possibility of his attending a hearing and explaining what it was important. 

  8. On 17th January the Tribunal wrote its standard letter under s.425 of the Migration Act, to the Applicant. Again, that was addressed to his correspondence address. That letter said:

    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.

  9. The letter invited the Applicant to attend a hearing of the Tribunal on Wednesday 22nd February 2006 at 9:00am.  The Applicant did not reply to that letter and on the check list, a copy of which appears at page 52 of the Court Book, the officer of the Tribunal went through a series of checks which appear to be required if no response is received to a hearing invitation. 

  10. The Tribunal noted that the Applicant did not respond to the hearing invitation and that the letter was not returned to the Tribunal. The Tribunal noted that the Applicant did not attend the scheduled hearing and did not contact the Tribunal. In those circumstances the Tribunal exercised its power under s.426A of the Migration Act to make a decision on the review without taking any further action to enable the Applicant to appear before it.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out on pages 64 and 65 of the Court Book. The Tribunal accepted that the Applicant is a national of the People's Republic of China but found that the Applicant had provided very few details regarding his claims in his protection visa application. The Tribunal noted the paucity of the information, both about the Applicant's activities in China and noted that the Applicant had not provided any details about his practise of Falun Gong in Australia, if any. 

  2. The Tribunal found at page 65 of the Court Book:

    Given the lack of details in the Applicant's claims the Tribunal is not satisfied that the Applicant has been or is a practitioner of Falun Gong. 

  3. The Tribunal was not satisfied on the evidence before it that the Applicant had experienced serious harm in China amounting to persecution for a convention reason and the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason if he were to return to China. Accordingly, the Tribunal affirmed the decision not to grant a protection visa.

Application for Judicial Review

  1. The Applicant has sought a review of that decision. He filed an application on 18th April 2006. He filed with that an affidavit in which he says:

    I would be placed in danger if I go back to PR China because I belong to a particular social group.

  2. Annexed to that document was a copy of the Tribunal decision record.  The Applicant attended Court on the First Court Date, which was 29th May 2006. At that stage directions were made about filing of further material. The Applicant was given advice about the availability of a free legal advice scheme funded by the Refugee Review Tribunal.  With the assistance of an interpreter he filled in a form indicating that he wished to take advantage of that service. The Court file shows that he was referred to a lawyer on the panel, a Mr S. Lloyd, a barrister who practises in Wentworth Chambers in Sydney. There is no indication on the Court file as to whether he in fact saw the lawyer who was the panel member.

  3. The Applicant filed an Amended Application on 20th June 2006. He told the Court that he believed that he had filed a further document on 3rd July but no such document appears on the Court file and the solicitor for the Respondent Minister told the Court that no such document had been served on them.  In response to an inquiry from the bench the Applicant said that he did not have a copy of the document that he had filed because he did not have time to prepare any documentation. 

  4. The Amended Application does not seek any orders, which is not of itself fatal to an application for review. The Applicant did seek orders in his original application; namely a writ of certiorari quashing the decision of the Refugee Review Tribunal and an order requiring the Tribunal to reconsider the matter according to law.  I am satisfied that I should take those matters into account and regard those as the orders that the Applicant seeks. 

  5. He sets out eight grounds for the grant of the orders for relief.  The grounds are as follows:

    (i)The Tribunal made the finding which is biased.

    (ii)The Tribunal did not consider that I would be prosecuted if I returned to China.

    (iii)I am one of the local members of Falun Gong. Because I have benefited from Falun Gong a lot and I do not think there is anything wrong with it, I began to introduce and spread the spirit of Falun Gong to my friends and relatives. And all of them benefited from Falun Gong and they all appreciated me. 

    (iv)However, in 1999 the Chinese government started to oppress Falun Gong practitioners and our organisations were regarded as illegal. I was arrested by police and put into a custody centre for three months. 

    (v)I was also fined a big amount of money by the authority.  They also warned us to terminate my business and arrest all of us without any mercy.  Since that time I have received warnings many times.

    (vi)From time to time I was asked to go to re-education classes to wash my brain and was put into custody centre. Under the circumstances I have nothing to choice but to leave my country.

    (vii)Thus, I came to Australia and seek for help from Australian government.

    (viii)I understand that the Chinese authority would put me into goal again if I still practise Falun Dafa.

  6. I note that the grounds mentioned, apart from ground number one and ground number two, are essentially the statements of fact that were contained in the Applicant's typed statement submitted with his application for review, even down to the original description of his practise of Falun Gong and his final description of his understanding that he would be put into goal again if he were still to practise Falun Dafa.

  7. In answer to a question from the bench the Applicant told the Court that the Tribunal was biased because it made a decision without telephoning him or writing to him. He said that he felt very upset. He confirmed that he did not attend the tribunal hearing because he never received any correspondence asking him to attend the hearing. 

  8. The Applicant confirmed that he had given a mailing address of 460 Pitt Street, Sydney and I note that he has given as his Address for Service in these proceedings a mailing address at 460 Pitt Street, Sydney, which is different from his residential address, although the first part of the mailing address is different from that given in his application for review.

  9. The Applicant told the Court that it was a mailing address and he said that he collected his mail regularly but had never received any correspondence from the Refugee Review Tribunal. He complained that the Department or the Tribunal should have telephoned him but there was no telephone number given on his application form for review.

  10. Bias is a serious allegation as it alleges personal fault on the part of the decision maker.  An allegation of bias should not be made lightly and it should be clearly stated and strictly proved. The Full Court of the Federal Court has made this quite clear in a number of decisions such as SBBS v Minister for Immigration and Multicultural Affairs [2002] FCAFC 361. A helpful statement of the principles to be considered by trial Courts where there are allegations of bias or bad faith is set out at paragraphs [42] through to [48] of the decision. Their Honours went on to say at [44]:

    The circumstances in which a Court will find bias are rare and extreme, especially so where the only ground for an allegation of bias is the reasons for the decision maker themselves.

  11. In this case I am satisfied that the Tribunal, at all times, wrote to the Applicant at the address for correspondence which he gave. The Applicant did not provide any telephone number in his application and that may well be the fault of the person who prepared his application for him, described by the Applicant as his solicitor. There is no breach of s.425 of the Migration Act. The Tribunal complied with the requirements of the Act in informing the Applicant of the need to attend a hearing and communicated with the Applicant in the method prescribed by the Applicant.

  12. The Tribunal cannot be held accountable for the fact that the Applicant, for some reason, did not receive the correspondence at the address that he specified. The Applicant cannot complain that he did not receive a telephone call when he did not provide any telephone number. There is no evidence of bias. There is no evidence of any breach of s.425 of the Migration Act.

  13. The Applicant claims, as his second ground, that the Tribunal did not consider that he would be prosecuted - and I presume that that means persecuted - if he were to return to China. The Tribunal decision shows that the Tribunal Member considered the material set out in the Applicant's claims and that consideration is set out in a section of the decision headed: "Claims and Evidence" which appears at pages 63 and 64 of the Court Book.  Whilst the Applicant claims that the Tribunal did not consider that he would be prosecuted or persecuted if he were to return to China, I note that the final statement at page 64 of the Court Book in the section entitled, "Claims and Evidence" is this:

    He stated that if he returned to China he would be in danger of being arrested by the government. 

  14. In my view, the claim by the applicant that the Tribunal did not consider the likelihood of his being either persecuted or prosecuted by the government cannot be made out. The evidence before me indicates that it was. 

  15. The claims set out in grounds three through to eight are no more than a recital of the facts that the Applicant claimed in the statement annexed to his application for review. They do not allege any jurisdictional error. Merits review, in other words a challenge to the factual findings of a tribunal, is not available on judicial review of administrative decisions. Provided that there is evidence upon which a decision maker can make a finding of fact, the Court does not have the jurisdiction to challenge that finding. Findings of fact are strictly the province of the administrative decision maker.  I refer to Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 which is, in my view, trite law these days.

  16. The fact is that the Tribunal was not satisfied that the Applicant had made out his case on the limited information available to it. Under s.65 of the Migration Act the Minister, or in this case the Tribunal standing in the shoes of the Minister must, if satisfied that an applicant has met the criteria for the granting of a visa, grant the visa. If the Tribunal is not so satisfied, then the Tribunal has no option but to refuse to grant the visa. The Tribunal does not need to have positive evidence in order not to be satisfied as to the grant of a visa and I refer to decision of Selvadurai v Minister for Immigration and Multicultural Affairs [2002] FCA 342.

  17. The Tribunal, as I said, was just not satisfied that there was enough material there that would allow it to reach the state of satisfaction that the Applicant met the requirements for a protection visa. The Federal Magistrates Court and the Federal Court have each commented on the situation where applicants do not take the opportunity, for whatever reason, to attend the hearing.  And I refer to such decisions as SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 and SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 both of which are appeals from this Court and NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 249 which appeal from a decision of the Federal Court.

  18. It is quite clear that the Tribunal in its letter to the Applicant inviting him to attend the hearing made it clear that the evidence that the Tribunal had was not sufficient to allow it to make a decision in favour of the Applicant. That is why the Tribunal invited the Applicant to attend the hearing so that he could give evidence and indeed provide further evidence. He did neither. The Applicant said that he had some assistance from a solicitor with whom he is no longer in contact and whom he believes to be overseas. He could only give the family name of the solicitor and believed that the solicitor's office was somewhere in China town.  The solicitor, who may or may not be a migration agent, did not put his name as an authorised recipient on the application for review and if he prepared the documents for this Court, has not gone onto the record as a solicitor. If the Applicant has paid good money for the services which he received from this person, solicitor unknown, in my view he has not been well served. 

  19. The application is without merit. There is no jurisdictional error that appears on the face of the application. Certainly the Applicant's claims or jurisdictional error are not made out nor can I see any other material which would raise an arguable case for jurisdictional error. The decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act and therefore attracts the protection of sub-s.474(1) of the Act. The application must be dismissed. I will hear submissions on costs.

  20. In my view this is an appropriate case to make an order that the applicant should pay the first respondent's costs.  The amount of $3,500.00 which is sought is, in my view, an appropriate figure. I propose to make an order for costs in that amount. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  11 August 2006

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