SZISV v Minister for Immigration

[2006] FMCA 1116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZISV v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1116

MIGRATION – RRT decision – Chinese person claiming persecution for Falun Gong practice – agent consented to Tribunal proceeding without hearing – no arguable case – application dismissed at show–cause hearing.

Migration Act 1958 (Cth), ss.424A, 425, 425A(4), 426A, 426A(1), 441G, 452(2)(b), 476

Federal Magistrates Court  Rule 44.12(1)(a)

Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64
Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73
NBHP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 998
NBHP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1857
SZDPB v Minister for Immigration & Multicultural Affairs [2006] FCAFC 110
VNAA v Minister for Immigration (2004) 136 FCR 407

Applicant: SZISV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1159 of 2006

Judgment of: Smith FM

Hearing date: 25 July 2006

Delivered at: Sydney

Delivered on: 25 July 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr Bird

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.

2. The applicant must pay the first respondent’s costs in the sum of  $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1159 of 2006

SZISV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 20 April 2006 seeking an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Refugee Review Tribunal dated 6 March 2006 and handed down on 23 March 2006. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.

2. The application was returnable before me at a first Court date on 24 May 2006, and the applicant attended on that day and was assisted by a migration agent.  The nature of the proceeding was explained to her, and I gave her an opportunity to file an amended application and any additional affidavits by 18 July 2006 after receiving a bundle of relevant documents and a referral to a lawyer under the free legal advice scheme.  I warned her that her application might be dismissed at today's listing if I were not satisfied that it had raised an arguable case for the relief claimed.

3. The Applicant has received legal advice, and the advisor has prepared an amended application which the Applicant has filed.  I shall consider the grounds suggested by the advisor further below.  She has not filed any evidence, in particular, to explain her absence from hearing and the actions of her agent to which I shall refer below.

4. The Applicant's application for a Protection Visa was prepared with the assistance of an agent, Ms Shuang Zhang, who was a migrant agent trading under the name of CWH Migration Education Business Service.  The visa application attached a statement explaining the applicant’s reasons for seeking protection in Australia so that she did not to return to the Peoples Republic of China. 

5. In her statement she claimed to have "connected with Falun Gong in 1997", and to have become an active practitioner "in our station very soon."  She claimed that after the suppression of Falun Gong from July 1999, she had received attention in her workplace and had been arrested in July 2003 after participating in a demonstration.  She claimed to have continued to practise Falun Gong, and she said:

   One day in May 2004 the police who work in [area] Police Station darken the door when we practice Falun Gong. I was detained and we were sent to the police station.  Again it was said I was regarded the non ordinary Falon Gong practitioners and I was detained in a detention centre to be brain washed.

6. She described details of her abuse while in detention, but did not explain when or how she was released nor how she managed to leave China.  No further details of her claims were given to the Delegate or to the Tribunal subsequently, and no corroborative material was ever presented.

7. The delegate's decision was sent to the applicant's agent, as requested in the visa application form, and on 20 January 2006 the agent lodged an application for review with the Tribunal.  The application was signed by the applicant, and informed the Tribunal that Ms Shuang Zhang was her advisor who was authorised "to act for you in relation to this application."  In response to the question “Where do you want us to send correspondence about your application?”, the applicant requested the Tribunal to send all correspondence to her advisor "whom I nominate as my authorised recipient". 

8. As a result of that authorisation the Tribunal was required by s.441G of the Migration Act to: “give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the Applicant”.

9. The Tribunal sent to the agent on 10 February 2006 a letter informing the applicant 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.

10. The letter invited the Applicant to attend a hearing on 7 March 2006, and also requested the Applicant to:

    read and complete the enclosed form carefully and tell us if you are coming to the hearing or not coming to the hearing.

11. The "Response to Hearing Invitation" form was returned to the Tribunal by facsimile on 6 March 2006.  It is signed by the Applicant's agent and informed the Tribunal in response to the question:

    Do you want to come to the hearing?

    No.  I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.

12. In its statement of reasons, which is dated 6 March 2006, being the day before the previously appointed hearing, the Tribunal indicated that the Tribunal had acted upon the applicant’s consent communicated to the Tribunal, and that “this matter is therefore being determined on the evidence available to the Tribunal”.

13. In my opinion, it is clear from the Tribunal's decision that, although it waited until after the date of the appointed hearing to hand down its decision, it did not rely upon its power under s.426A(1) to proceed without appointing a further hearing when an applicant does not attend an appointed hearing.

14. Moreover, it did not need to rely upon that provision.  The Tribunal acted, and was empowered to act, under a power to proceed without allowing the applicant an opportunity to attend a hearing “to give evidence and present arguments relating to the issues arising in relation to the decision under review” under s.425. This is because the obligation to afford that opportunity is expressly excluded by s.452(2)(b) where “the applicant consents to the Tribunal deciding the review without the applicant appearing before it”.

15. I have addressed the relationship between the Tribunal's power so to proceed and its power to proceed under s.426A(1), in my decision in NBHP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 998 at [25]-[44]. My judgment was upheld on appeal by Jacobson J (see NBHP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1857), and in my opinion remains good authority.

16. I therefore do not consider that any issue relating to validity of the Tribunal's invitation to the hearing, and its decision not to take further action to allow the Applicant to appear, would provide any arguable jurisdictional error. 

17. In its Statement of Reasons the Tribunal briefly explained why it affirmed the Delegate's decision.  It said:

    The Applicant was advised that the Tribunal was unable to make a decision in her favour on the information provided in the protection visa application and in the application for review.  The Applicant declined an offer to appear before the Tribunal to elaborate upon her claims.

    The Tribunal has a number of issues upon which it requires a good deal more detailed evidence before it could be satisfied that the Applicant is in genuine fear of persecution and that there is a real chance that she will be persecuted on her return to China.  The Applicant has claimed to have undergone two periods of detention in China because of her involvement in Falun Gong and that she fears further harm should she return to China.

    However the Tribunal would have wished to discuss with the Applicant her claimed involvement in Falun Gong in order to satisfy itself that the Applicant is indeed a Falun Gong practitioner and therefore faces harm by reason of this on her return to China.  Further the Tribunal would also have wished to discuss with the Applicant her claimed periods of detention in China in order to satisfy itself that the Applicant did face harm in the past.

    As it is the Tribunal is not satisfied, on the written evidence before it, that the Applicant is or was a member of Falun Gong and has or will face serious harm for this reason from the Chinese authorities.

    Accordingly the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason on her return to China.

18. I can see no arguable error in the Tribunal reasoning in that manner. 

19. In her original application the Applicant merely repeated her refugee claims under the heading “The Grounds of the Application”.  However, under the heading “Orders Sought by the Applicant”, there are contentions that the Tribunal did not consider elements in her claim. 

20. However, I do not consider that there is any argument reasonably open to the Applicant that the Tribunal did not consider and address the claims made in her protection visa application.  Although it does not examine each of them separately, the Tribunal analysed the claims, and expressly identified the several elements in the history she had claimed. 

21. The amended application prepared by the free legal advisor presents two grounds of application:

    1. The Tribunal failed to exercise its jurisdiction because it failed to comply with s.425A(4) of the Act.

    Particulars

    The Tribunal sent the applicant an invitation to attend a hearing scheduled for 7 March 2006 (CB 55). Subsection 425A(4) requires such a notice to contain a statement of the effect of s.426A. Subsection 426A(1) states that if the applicant does not appear at the stated place and time, the Tribunal may make a decision on the review “without taking any further action to allow or enable the applicant to appear before it.”

    The Tribunal’s notice stated that, if the applicant did not appear and the hearing was not postponed, the Tribunal could “make a decision on your case without further notice.”

    The expression “without further notice” does not fully set out the effect of s.426A.  Notice is only one form of action, and implies an action initiated by the Tribunal.  Section 426A implies that even if the applicant initiates further action, such as a request for a new hearing date, the Tribunal is not obliged to respond.

    2. The Tribunal failed to exercise its jurisdiction because it failed to comply with s.426A of the Act.

    Particulars

    The hearing was scheduled for 7 March 2006. Even if the notice was not vitiated as claimed in the first ground, the Tribunal was only entitled to make a decision if the applicant did not appear on that day.  The Tribunal made its decision on 6 March, the day before.  The fact that the applicant’s agent had sent a notice to the Tribunal saying that the applicant did not wish to attend the hearing did not extend the operation of the section.

    The Tribunal had no power to make its decision until after the time scheduled for the hearing on 7 March.

22. For the reasons I have explained above, I do not consider that any departure in the letter inviting the Applicant to a hearing from the requirements of s.425A(4) could assist the Applicant to identify material jurisdictional error. In my opinion, the decision of the Tribunal to proceed without taking further action was based upon a power independent of the validity of the letter of invitation, being the power to dispense with a hearing by consent of the applicant. I can see no argument available to the Applicant which would have reasonable prospects of overcoming that difficulty facing the first ground. I also am inclined to think that its argument has no prospect of success in itself.

23. The second ground, alleging a failure to comply with s.426A, in my opinion enjoys a similar lack of prospects for the same reason. The Tribunal was not obliged to "comply with section 426A" in circumstances where the Applicant, through her agent, had presented a consent to the Tribunal dispensing with the requirements of s.425.

24. In her oral submissions to me today, the Applicant maintained that she had told the Tribunal to send letters to her, and that they had not been received.  However, when presented with the Court book showing the appointment of the agent, she did not dispute that she had appointed an agent for correspondence. 

25. She also claimed that her migrant agent did not inform her of the hearing invitation and that it was not her fault that she had not attended.  However, even were she to present sworn evidence of this in a proper form, it holds no prospects of success for the Applicant in obtaining relief from this Court.  There is now clear authority that the Tribunal may avail itself of its discretions available after due dispatch of notices to a nominated agent or address for service, regardless of whether the applicant personally received actual notice of the invitation or of the actions of her agent which are claimed to have caused her to have missed the opportunity.  I consider those authorities would be equally applicable in the present situation (c.f. VNAA v Minister for Immigration (2004) 136 FCR 407 at [14-5], Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64,Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39], SZDPB v Minister for Immigration & Multicultural Affairs [2006] FCAFC 110 at [17]).

26. For the above reasons I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it is appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  7 August 2006