SZIWW v Minister for Immigration & Anor (No.2)
[2006] FMCA 1736
•15 November 2006
TWFEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWW v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 1736 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China who had not attended Tribunal hearing – where applicant claimed that his migration agent failed to advise him of the hearing – no evidence Tribunal was aware that applicant’s migration agent had not passed the information on to the applicant – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B, 424A |
| SZIWW v Minister for Immigration & Anor [2006] FMCA 1635 SZBKD v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1306 NAVX v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 287 M172 v Minister for Immigration & Anor [2004] FMCA 23 SZBBL v Minister for Immigration [2004] FMCA 185 SZGQL v Minister for Immigration & Ors [2006] FMCA 446 Al Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 |
| Applicant: | SZIWW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1524 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 November 2006 |
| Date of last submission: | 15 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Carr |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $6,500.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1524 of 2006
| SZIWW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal dated 19th May 1999. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.
The Applicant, by his application filed on 29th May 2006, now seeks orders by way of certiorari that the decision should be quashed and seeks a declaration that the decision was made in excess of jurisdiction and is null and void.
For reasons which are unclear, the application seeks that the order in the nature of certiorari should be directed to the First Respondent who is the Minister. That is clearly incorrect because the decision that is under review today is the decision of the Refugee Review Tribunal which is the Second Respondent.
Background
The Applicant is a citizen of the People's Republic of China.
He arrived in Australia on 17th January 1998 and on 18th August in that year he applied for a protection visa. On 15th October 1998 that application was refused and on 18th November in that year the Applicant applied to the Refugee Review Tribunal for review of that decision.
The Tribunal acknowledged receipt of the application for review the following day and on 27th February 1999 the Tribunal invited the Applicant to attend the hearing. That notice was under the provisions of s.426 of the Migration Act as it then stood. The Applicant, or someone on the Applicant's behalf, completed the Response to Hearing Offer and returned it to the Tribunal. Accordingly, on 22nd March 1999 the Tribunal wrote to the Applicant inviting him to attend a hearing on Thursday 22nd April 1999.
The Applicant, or more correctly probably someone on his behalf, forwarded a fax to the Tribunal seeking a postponement. The fax referred not only to the Applicant but to two other applicants who also had hearings in the same week in April. It would appear to be from a migration agent. The fax said:
We wanted to attend the hearings as scheduled. Unfortunately, we were badly injured in the hailstorm and are unable to attend the hearing. Please re-arrange our hearings separately to later dates till we are recovered from the trauma accident. Many thanks!
The Tribunal acceded to that request at least insofar as this Applicant is concerned. Whether or not the Tribunal was at all surprised at the rather unlikely situation of three applicants before the Tribunal all being badly injured in a hailstorm does not appear apparent from the material before me. But in any event in respect of this Applicant, the Tribunal granted his request for a new hearing and scheduled the hearing for Thursday 6th May 1999 at 10:45am. The Tribunal conveyed that information in a hearing invitation dated 27th April 1999.
The Applicant did not attend the hearing on 6th May 1999. In the Tribunal decision record at page four the Tribunal noted:
The Applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In these circumstances I am satisfied that the Tribunal has discharged its obligation to provide the Applicant with the opportunity to give oral evidence before it and that he has effectively declined that opportunity. This matter has therefore been determined on the evidence before the Tribunal.
The Tribunal's decision record is annexed to an affidavit of Hayley Anne Blackman, solicitor, affirmed on 30th October 2006. I note that s.426A of the Migration Act would have applied in that s.426A was inserted into the Migration Act the previous year by the operation of the Migration Legislation Amendment Act, Number One of 1998.
The Tribunal went ahead to consider the Applicant's claims set out in his written submissions; noting that he feared that if he were to return to China he would be gaoled by the Public Security Bureau in Hunan for reasons of his religion, membership of a particular social group, being a descendent of an overseas Chinese, and his political opinions. The Tribunal considered independent country information on religion and Christianity and on exit procedures from the People's Republic of China. The Tribunal considered independent country information on treatment of political activities and on the rights of overseas Chinese.
The Tribunal’s Findings and Reasons
The Tribunal set out its findings and reasons on pages 9 and 10 of its decision. The Tribunal commenced by noting that the Applicant had not availed himself of the opportunity to attend an oral hearing so the Tribunal had before it only the information contained in the written material from which to make a determination. The Tribunal noted that the information was so sparse that it was unable to make any findings of fact. The Tribunal had this to say at page 9:
The applicant's claims are so general and lacking in details that the Tribunal is unable to establish the relevant facts. There was no information as to why the applicant felt he would be arrested and jailed if he returned to China. There were no details about when or where he attended church, whether or not the authorities knew of his attendance and if so, the consequences, if any, for the applicant. There were no details about his claim to have been persecuted because of his Overseas Chinese connections. There were also no details to substantiate his claim of persecution because of his political opinions.
The Tribunal went on to point out that the Applicant had been put on notice by the Tribunal that it was unable to make a favourable decision on the information before it but he did not provide any further information in support of his claims. The Tribunal noted that a number of relevant questions were left unanswered and was not satisfied on the evidence before the Tribunal that the Applicant had a well-founded fear of persecution within the meaning of the Convention. Accordingly, the Tribunal affirmed a decision not to grant the Applicant a protection visa.
The Application for Judicial Review
The Applicant did not commence proceedings until 29th May 2006.
At that stage he was in detention at the Immigration Detention Centre at Villawood. In his affidavit he said that his adviser did not tell him that he should make an application with the Federal Court within 28 days of notification of the decision. He sought an extension of time in order to bring that application.
I considered that material in a hearing on 31st October 2006 and after hearing evidence from the Applicant, made orders – I made a finding first of all that there was no proof that the Applicant had received actual notification of the decision until 28th April 2006, by which time he was in Immigration Detention. At that stage the application was then only three days out of time so I extended the time for making an application for remedy under s.476 of the Migration Act to 29th May 2006. The media neutral citation for that decision is SZIWW v Minister for Immigration & Anor [2006] FMCA 1635.
The Applicant has now filed an outline of submissions seeking review of the Tribunal's decision. I have read through that outline and at the hearing the Applicant indicated that he did not wish to supplement those written submissions with any oral submissions. The written submissions refer to the factual matters of his case and include at paragraph 1 a complaint that the Department of Immigration & Multicultural Affairs has not given him permission to work. I would comment that he is not currently in Immigration Detention but does not have a condition on his visa which allows him to work. That is not a matter that the Court has any jurisdiction to do anything about.
The submission goes on to set out details of the Applicant's history in China and what happened when he arrived in Australia. It refers to his claim that he was misled by a migration agent at Bankstown called
An Qi. It is the Applicant's submission that the migration agent did not inform him of the Tribunal hearing, otherwise he would have attended. He disputes any suggestion that he is making this application merely to prolong his stay in Australia and sets out that he had fled China in 1998 leaving behind his wife and a two year old child. He expresses regret that he has not seen his wife and child or his elderly mother since 1998. He expresses a desire to be reunited with them but a fear of returning to China.
The submissions do not allege any jurisdictional error on the part of the Tribunal. In his original application the Applicant stated that he would be at risk of suffering persecution if he were to return to China and that the Tribunal failed to understand his claims and consider relevant matters and that the Tribunal refused his application without proper grounds and investigation.
Counsel for the First Respondent Minister, Mr Carr, submits that if the Applicant's initial application alleges that the Tribunal denied him procedural fairness, that ground would not succeed. Counsel acknowledged that the Tribunal decision was made before the introduction of either s.422B or s.424A of the Migration Act and I would comment that both of those contentions are correct. Section 422B became operational on 4th July 2002 and s.424A in its current form became operational on 10th August 2001. Section 425 was in existence and it is submitted that the Tribunal complied with s.425 and it is also submitted there was no duty to make inquiries beyond the facts supplied by the Applicant.
In my view the Tribunal decision is unexceptional in that the Tribunal decided that because the Applicant had not attended the hearing there was insufficient information for the Tribunal to be affirmatively satisfied that the Applicant met the criteria for the relevant visa. The Tribunal had noted that it had indicated to the Applicant that it was not satisfied it could make a decision in the Applicant's favour on the information before it, which is why it acted under s.425 of the Act to invite him to attend the hearing. The Tribunal did not receive any indication from the Applicant as to why he failed to attend the hearing after it was rescheduled at the Applicant's request and proceeded to make the decision on the basis of the information that it had.
The information the Tribunal had before it was not sufficient to establish that the Applicant had a well-founded fear of persecution for a Convention reason.
There are many decisions, both in this Court and in the Federal Court which point out that where an applicant does not avail himself or herself of the opportunity to attend a hearing, then the almost inevitable consequence will be that the application will be rejected. I refer to SZBKD v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1811, SZDXC v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1306, NAVX v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 287.
What the Applicant is saying is that he was not in a position to provide evidence to the Tribunal in support of his case through the default of his migration agent. There are two points that arise here. First; it is not the law that the default of the migration agent will establish procedural unfairness let alone jurisdictional error on the part of the Tribunal in circumstances where the Tribunal had no knowledge of any such default. I have previously dealt with these matters in SZGQL v Minister for Immigration & Ors [2006] FMCA 446 where I referred to Al Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 where Lord Bridge stated at 898:
These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his own behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him.
The situation has also been dealt with by Bryant CFM as she then was in M172 v Minister for Immigration & Anor [2004] FMCA 23 and by Driver FM in SZBBL v Minister for Immigration [2004] FMCA 185.
In SZBSZ v Minister for Immigration & Multicultural and Indigenous Affairs, which was an appeal from a decision of the Federal Magistrates Court, citation being [2004] FCA 779, Bennett J considered the same issue.
The question of default of one sort or another by a migration agent has recently been considered by the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142. At [205] it is said:
In the context of administrative decision making there would not appear to be support in Australia for the view that problems which arise in the conduct of the case of the person to be the subject of the decision through their mistaken view or that of their legal advisers could amount to procedural unfairness. There would seem to be strong policy grounds why this should not be the case per Keiffer J, Freeman v Health Insurance Commission (2004) 141 FCR 129 at 144 para.52.
The fact is the Tribunal was unaware on the evidence before me of any failure on the part of the Applicant's migration agent to advise him of the hearing. The Tribunal had received correspondence on behalf of the Applicant, including a request to postpone the hearing due to injuries suffered in a hailstorm. The Tribunal received no message or correspondence from the Applicant seeking to explain why he did not appear at the postponed hearing.
The other point to be made is that I am not satisfied on the evidence before me that there was any such default by the migration agent.
The Applicant has made these assertions but that is as far as it goes.
I am not satisfied that the Applicant has made out his case that there is jurisdictional error on the part of the Tribunal. I am mindful of the fact that the Applicant is not legally represented and I have read through the material myself independently of the submissions of either the Applicant or counsel for the First Respondent in order to satisfy myself whether any jurisdictional error may appear in the decision. I am not able to discern any jurisdictional error.
As there is no jurisdictional error it follows that the Tribunal decision is a privative clause decision as defined in s.474 of the Migration Act. Consequently, it is final and conclusive and is not subject to orders in the nature of certiorari or mandamus or declaration or for that matter prohibition or injunction. The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant says that he has no money to pay and I accept the fact that he does not have permission to work. That is unfortunate but it is not a reason not to make a costs order in favour of a successful party. The amount sought, including counsel's fees is $6,500.00.
Whilst that is higher than would normally be the case, this is a matter that has had some history in that it was first before the Court on
26th June. It was adjourned to 24th July. There was a hearing on the question of jurisdiction on 31st October. There was an adjournment until 3rd November to hand down the decision and then there was the hearing date today where the matter was heard on its merits on a final basis. I am satisfied that the amount sought for costs is appropriate and I propose to order that the Applicant pay the First Respondent's costs in the sum of $6,500.00. I will allow time to pay due to the Applicant's impecunious circumstances.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 23 November 2006
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