SZITM v Minister for Immigration

[2006] FMCA 1132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZITM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1132

MIGRATION – RRT decision – Chinese applicant fearing persecution for political opinions – did not attend hearing – blamed undisclosed agent – no jurisdictional error found.

Migration Act 1958 (Cth), ss.424A, 424A(1), 425A, 425A(3), 426A(1), 474(1), 476, 476(1), 477, 477(2)

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.42
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73
SZBUS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1223
SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, [2006] FCAFC 2
SZEYH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 93
SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393
SZICV v Minister for Immigration & Anor [2006] FMCA 1063
VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant: SZITM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1209 of 2006

Judgment of: Smith FM

Hearing date: 28 July 2006

Delivered at: Sydney

Delivered on: 28 July 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms S McNaughton

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application is dismissed. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1209 of 2006

SZITM

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 24 April 2006 seeking orders under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 December 2003 and handed down on 15 January 2004.  The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. 

2. The Court’s jurisdiction under s.476 of the Migration Act since 1 December 2005, both in relation to previous decisions and decisions made after that date, has been subject to time limits under s.477 and a transitional provision (see Sch.1 cl.42 of the Migration Litigation Reform Act 2005 (Cth)). The time limits run from 1 December 2005 or from the date of actual receipt, whichever is established to have happened later.

3. In the present case, the applicant did not state in his application the date when he actually received the Tribunal’s 2003 decision. However, he indicated that he sought an extension of the 28 day period. This is permitted under s.477(2) of the Migration Act, if the extension application is made within the period of 84 days from the date of actual notification. For reasons which I have explored in SZICV v Minister for Immigration & Anor [2006] FMCA 1063, the Court does not have power to entertain applications for extension which are not actually made within that period. Upon this opinion, the present application would be incompetent if I found that the applicant had actual receipt of the Tribunal’s decision prior to 1 December 2005 since, with its application for extension, it was filed after 23 February 2006.

4. In an amended application which was filed by the applicant after receiving free legal advice, the applicant claims that the date when he was actually notified of the Tribunal’s decision was late March 2006.  He has also made that claim in unsworn evidence to me today.  He claims that he first learned of the Tribunal’s decision after being taken into immigration detention in March 2006. 

5. The Minister was not today able to present evidence contradicting that claim, but sought to cross‑examine the applicant if it were necessary for me to make a determination on the question of competence.  However, for reasons which will appear, I have not found it necessary to explore the issue as to when the applicant received actual notification, since I consider that the application should be dismissed on its substantive merits. 

6. For the same reason, I have not found it necessary to receive evidence from the parties in relation to a contention by the Minister that a discretionary reason for refusing relief might arise in the circumstances in which the applicant failed to attend a Tribunal hearing (c.f. Allsop J in SZBUS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1223 at [15]).

7. The Court’s jurisdiction under s.476(1) is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”. However, its powers are confined by s.474(1), so that I do not have power to set aside the Tribunal’s decision and remit the matter to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa. I do not have power to order the Tribunal to give the applicant a further opportunity to attend a hearing unless I am satisfied that its previous decision, made in his absence, was affected by jurisdictional error.

8. In the present case, two areas of jurisdictional error need to be addressed. The first concerns the decision of the Tribunal to proceed in the absence of the applicant from a hearing, pursuant to the provisions of s.426A(1). The second concerns whether the reasoning of the Tribunal provides evidence of a failure to follow the procedure required by s.424A(1) in relation to inviting written comments. I shall address these two grounds after narrating the factual background.

9. The applicant arrived in Australia in November 2002.  On 9 January 2003 an application for a protection visa was lodged with the assistance of a migration agent, Mr Jing Xin Wu.  The application appointed Mr Wu as the applicant’s authorised person for the receipt of communications and to act on his behalf.  The applicant agreed today that he gave that authority, and indicated that the authority given to Mr Wu extended to pursuing all avenues necessary to obtain a protection visa. 

10. Attached to the application was a statement bearing a signature which the applicant today recognised as his.  In the statement, the applicant explained why he sought protection in Australia from return to his country of nationality, the People’s Republic of China.  The applicant said that he had participated in internet chatting with other people.  He said that, after he was “laid off due to bad management of the company in November 2001”: 

    I then put many articles into the Internet to disclose the bribe case of the provincial officials in [province].  I also disclosed the company’s management how to put their relatives and friends into the positions in the company while laying off many skilled workers by wasting public money because the company is a state‑owned business. 

11. The applicant referred to other articles he had published criticising the government, and said: 

    In June 2002, I was taken away by policeman from my home.  I was interrogated for eight hours continuously at [location] Detention Centre.  The forced to give them details of other Net friends those published different opinions.  I only acknowledged that I published some disappointed opinions due to my laid off from work.  They asked me to write compromise letter and confiscated my computer then released me. 

    I went to one of my friend’s Internet Bar in November 2002 and found out that one university student [name] had been arrested for her publishing articles in the Internet that not welcome by the government.  It is real cruel for a 22 years old young student facing such a serious punishment. 

    I am afraid of being arrested some day for the same reason.  I know that there are more than thirty people have been arrested for the same reason in mainland of China.  I have paid seventy thousand RMB Yuan for getting a visa to Australia.  I believe this is a kind of rebel to the government policy. 

    In facing the political and economic problems, the Chinese government will not stop cracking down people those publishing different views that not in compliance with the government requirement. 

    There is no one can expect the authorities in China would give a protection to a dissident.  My wife told me that the policeman had been to my home to warn us to behave well.  My wife and child have to move to the home of my mother‑in‑law in order to avoid the interruptions from the police. 

    I am hoping that Australian government can consider my application and grant me a protection. 

12. No supporting evidence nor great details of these events was given to the Department, nor subsequently to the Tribunal.  A copy of some pages from his passport was also sent to the Department.  A delegate refused the application on 7 March 2003. 

13. On 8 April 2003, an application for review was lodged with the Tribunal.  It bears a signature similar to that which the applicant identified as his, but today he claimed not to be able to identify it, although he did not deny that it might have been his. 

14. The application did not name any agent appointed to act for the applicant or to receive correspondence, and gave a home address at Redfern.  The applicant today acknowledged that he was living there.  It also gave a mailing address for correspondence, being a post office box at Haymarket.  The applicant today denied that this was his post office box, and claimed that it was a post office box used by his agent. 

15. The application contained a statement explaining the applicant’s reasons for making the application:  

    On 7^th March 2003, my application for a protection visa was refused.  I’m so sad. 

    I agree with some of the Department of Immigration reasons, but I still hope the Tribunal review my application. 

    China is a big country, the system is very different with Australia.  Some local police can give me passport for some money or. 

    In another hand, I was not harmed in body but in my mind.  Every day I worry that the police will appear at any time.  My mental health suffers the most damage.  In China, we are not allowed to speak our opinions.  So I consider I’m a kind of refugee. 

16. Although the applicant today denies knowledge of the making of this application, he accepts that he authorised his agent to make the review application.  In those circumstances, I did not think it necessary to require the applicant to give sworn evidence on the issue, and have proceeded on the assumption that the application was made by the agent on behalf of the applicant, but without informing him. 

17. Similarly, I am prepared to assume the truth of the applicant’s contention that he did not have actual notice of a letter dated 11 November 2003, which was sent by the Tribunal to the nominated mailing address.  In that letter the Tribunal informed 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”.  The letter invited the applicant to attend a hearing on 17 December 2003.  The file copy indicates that this letter was despatched by registered post, both to the post office box and to the applicant’s Redfern home address.  The applicant has not presented any evidence to explain how he would not have received the latter copy. 

18. On 4 December 2003 the Tribunal received a “Response to Hearing Invitation” which indicated that the applicant did wish to attend the hearing.  That document is dated 3 December 2003, and bears a signature which bears a close similarity to the signature which was acknowledged by the applicant on his visa application statement.  However, he wishes me to believe that he did not sign that document, and that he was entirely unaware of the invitation sent to the two addresses inviting him to attend the hearing.  He blames his agent for not informing him of this invitation.  

19. As I shall explain below, the state of the law is such that, even accepting the applicant’s factual contentions, they would still not establish jurisdictional error vitiating the Tribunal’s decision.  In those circumstances, I found it unnecessary to require the applicant to give sworn evidence on this issue also.  

20. In its statement of reasons, the Tribunal referred to the sending of the invitation and its apparent acceptance, and said: 

    The Applicant, who is not represented, accepted the invitation in writing but did not appear on the day of the hearing.  He provided no explanation for his failure to appear. 

    The Tribunal will now proceed to a decision on the material before it. 

21. The applicant appears to take issue with that procedure in his original application filed in the Court, although it appears to offer a different explanation for his failure to attend than he has given today.  The grounds of the application, which was completed while he was in Villawood, are: 

    1.The applicant who is from China arrived in Australia on 26 November 2003 [sic: 2002].  The visa applicant did not prepare his case properly when the applicant lodged an application for protection visa on 9 January 2003 and the applicant did no get legal advice. 

    2.I did no appear on the day of the hearing on 17 December 2003 because I did not get legal advice, sufficient to allow the Court to understand. 

    3.It was very risk in the applicant life to return back to China because the visa applicant was feeling fear of persecution, harassment, there.  With his membership of a particular social group or political opinion, on any level o stage on Human Rights. 

22. In my opinion, assuming the truth of his present denial of knowledge of the hearing, and assuming also that his agent was responsible for this, this would not establish that the Tribunal did not have power to proceed under s.426A(1). The applicant makes no contention that the Tribunal was under any notice that the correspondence it sent was not coming to the actual notice of the applicant, and I can see no evidence suggesting this. In those circumstances, ss.425A and 426A(1) were exhaustive of the Tribunal’s obligations (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39], and SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 at [17] citing VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14]).

23. I find that it is more probable than not that the letter was actually delivered and received by the applicant, or by an agent authorised by him to receive documents on his behalf, at least 14 days before the hearing. I draw that conclusion both from the evidence of postage by registered post (although the exact day is not established by evidence) and, more significantly, by the date appearing on the response to hearing invitation form. The invitation sent to the applicant therefore in fact allowed the applicant a period of notice of at least the period required by s.425A(3) and reg.4.35D of the Migration Regulations 1994 (Cth), and the pre‑conditions for the Tribunal’s power under s.426A(1) were met.

24. I can see no basis for finding that the Tribunal’s decision to proceed under that power miscarried as a matter of law.  I therefore reject that the Tribunal’s procedures in proceeding to a decision without taking further action was accompanied by any jurisdictional error. 

25. In its statement of reasons, the Tribunal under the heading “Claims and Evidence”, merged its analysis of the applicant’s claims appearing in his protection visa application with reference to relevant country information.  It is plain that the Tribunal addressed all of his claims.  At the end of its discussion, its analysis of the applicant’s claims contained the following reference to information found in the applicant’s passport: 

    The Applicant claimed he departed the PRC legally and that he had no difficulty obtaining his documents for travel.  His passport was issued in October 2002, which is well after the claimed events of June 2002.  The passport was issued in [city], which means that it was issued in the same jurisdiction as the one in which he was supposedly arrested and detained, before being released unconditionally.  It is reasonable to conceive that if the police were going to arrest the Applicant again, particularly over his having circulated seditious material, they would not issue him with a passport so that he could travel abroad. 

    It is difficult to conceive that the Applicant could have obtained a passport without his profile and travel plans coming to the attention of the PSB, for in the PRC “passport applicants must present household registration books” (CX86204) and, as noted, the PSB “oversees household registration” (CX86186). 

    The Applicant submitted evidence along with his protection visa application, showing that he came to Australia on a temporary business visa.  He must have satisfied the Australian Embassy in Beijing that he was linked to a business in the PRC, contrary to being the “unemployed” person that elsewhere he claimed to be (ref. Q.38 of the Applicant’s primary application form at Part C).  There is evidence here of a contradiction in the Applicant’s claims. 

26. Under the heading “Findings and Reasons”, the Tribunal commented upon the contradiction which it thought arose between the applicant’s obtaining of a passport, and his claim to have been of interest to Chinese authorities.  It also referred to the contradiction which it thought arose between the applicant obtaining a business visa and claiming to be unemployed.  It said:  

    The Tribunal accepts that the Applicant is a national of the PRC.  The Tribunal accepts that he was retrenched during an exercise of economic reform, however well or ill‑managed.  Whether or not this led to the actions the Applicant claimed he took is another matter; his evidence about becoming unemployed is not consistent, and therefore it is not easy to accept that he became “disappointed” and given to outbursts against the authorities, as claimed. 

27. However, in my opinion, the Tribunal did not use these concerns as a reason for affirming the delegate’s decision.  Rather, it proceeded to address the applicant’s claims “at face value” and on an assumption that “it accepts the bulk of his claims at face value”.  It said: 

    Considering the claims in this case, to the extent possible, at face value, it is clear that the authorities did not persecute the Applicant.  At best, as the Applicant himself claimed, they merely interrogated him, confiscated an expensive personal effect and let him go, not only from the claimed interrogation, but also, later on, from the PRC altogether, all unconditionally. 

    These facts alone lead the Tribunal to conclude very confidently that the authorities are not seeking the Applicant, even if it accepts the bulk of his claims at face value. 

    The Tribunal asked itself if the Applicant, according to his evidence, might be the kind of person who is inexorably moved to criticise the state or authorities in the PRC.  From his evidence he is not, and the authorities do not think he is either.  At best, his was a brief outburst triggered by unhappy retrenchment.  The Tribunal does not accept on the evidence before it that the Applicant is the kind of person in whom the PRC authorities would take a significant negative interest. 

    The Applicant has failed, in his claims, to identify past treatment that one could reasonably characterise as persecution.  As to potential future treatment, he has not identified anything worse than, in his evidence, happened before.  Meanwhile, he failed to make out that he faces a real chance of even the level harassment he claims he might face. 

1. In my opinion, this discussion reveals the reason for the Tribunal affirming the delegate’s decision.  It was that, assuming the truth of all of the applicant’s claims at their highest, they did not establish a real chance of Convention‑related persecution in the People’s Republic of China. 

2. The applicant’s amended application, however, raises a failure to observe s.424A(1) by reference to a further paragraph appearing under the heading “Findings and Reasons”, after the above discussion.  The Tribunal said:  

   The Tribunal has sufficient grounds for concluding that the Applicant does not have a case for a protection visa.  It does not walk away from this case, however, without observing the contradictions in the Applicant’s evidence, not only about being permitted to travel at all, but also in relation to his status in “business”.  In addition to these contradictions, the Tribunal is struck by the poor faith on the Applicant’s part, in undertaking to come to a hearing and speak to his claims and then, without any explanation, not appearing. 

3. As counsel for the Minister pointed out, it can sometimes be a difficult task to perform the determination required by authorities, as to whether a Tribunal’s reference to prior information should be analysed to be “the reason, or a part of the reason, for affirming the decision that is under review”.  She cited Allsop J in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, [2006] FCAFC 2 at [216].

4. In the present case, in my opinion, the Tribunal’s references to the contradictions in the protection visa application did not form any part of the reasons given by the Tribunal for affirming the delegate’s decision. As I have indicated above, its reason was that the applicant’s claims just did not, if accepted, establish the applicant as a person to whom Australia had protection obligations. I consider that the language in which the Tribunal referred to the contradictions shows that it offered these parts of its reasons as side commentary only. I therefore do not consider that the s.424A ground raised by the amended application has been made out.

5. In his submissions to me today, the applicant sought to obtain relief from the Court based on the further contention that he had been cheated by his agent, in the sense that it was his agent’s defaults which caused him to lose his opportunity for a hearing before the Tribunal. However, such a contention does not provide the Court with a ground for finding that the Tribunal’s decision to proceed under s.426A(1) was vitiated by jurisdictional error (c.f. SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393 at [17], and SZEYH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 93).

6. For the above reasons, nothing that the applicant has said to me today, or that appears in the documents he has filed, establishes that the Tribunal’s decision was affected by jurisdictional error. The Tribunal’s decision was therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding thirty‑three (33) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  15 August 2006