SZIXM v Minister for Immigration
[2006] FMCA 1609
•17 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIXM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1609 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant is a citizen of the People's Republic of China – where applicant failed to attend Refugee Review Tribunal hearing – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth) Migration Act 1958 (Cth), ss.32(2), 422B, 426A, 474(2) |
| Hossain v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 842 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZEIL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1067 |
| Applicant: | SZIXM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1610 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 October 2006 |
| Date of Last Submission: | 17 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Ms Henderson |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00 and I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1610 of 2006
| SZIXM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 12th April and handed down on 11th May 2006. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant in her application to this Court seeks an order by way of a writ of certiorari quashing the decision of the Refugee Review Tribunal and seeks a writ of mandamus compelling the Tribunal to rehear and redetermine the matter according to the law.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 29th November 2005. She applied for a protection visa on 6th January 2006, claiming a fear of persecution on the basis that she is a Falun Gong practitioner. A delegate of the Minister refused the application on 31st January and on 27th February 2006 the applicant applied to the Tribunal for review of that decision. In her application she provided no additional documents, except for a copy of her passport. The Tribunal wrote to the applicant inviting her to attend a hearing on Monday, 10th April 2006. The letter was written to the applicant’s mailing address that she had given to the Tribunal and which appears to be her address today. The applicant did not attend the hearing, and had not given a telephone number so could not be contacted.
On 12th April the Tribunal received a faxed message, a copy of which appears at page 51 of the court book. The message in its relevant part said:
I was unable to attend hearing yesterday because of my illness.
I forgot to ask my doctor for a medical certificate, but I have asked him to issue a certificate. I will fax the certificate to you when I receive it. Can I still have a chance to attend the hearing? The hearing is important to me.
The Tribunal wrote to the applicant on 19th April. A copy of the letter appears on pages 52 and 53 of the court book. The first sentence says:
On 12th April 2006 you sent a request for another hearing.
The presiding member has not agreed to another hearing date.
The letter invited the applicant to attend the handing down of the decision. The Tribunal in the decision noted that the applicant did not respond to the hearing invitation, nor did she attend the hearing listed on 10th April. The Tribunal referred to the facsimile received on
12th April, but decided not to accede to the request for an additional hearing. The Tribunal’s reasons for this decision are set out in the third paragraph at paragraph 60 of the court book. The Tribunal said:
The applicant did not provide any telephone contact details in the letter or in the application for review or protection visa and consequently the Tribunal could not clarify with her the nature of the illness. Given the fact that the applicant did not explain the nature of her illness or how it would impact on her ability to give evidence, or at the time provide any medical evidence in support, the Tribunal has decided not to postpone the hearing.
The applicant said that the hearing was important to her, yet her lack of response to the invitation hardly supports that contention. The Tribunal has an obligation to finalise the review in a, inter alia, fair and timely manner. The Tribunal is not satisfied that if the hearing were to be postponed the applicant would attend.
The applicant was put on notice that if she did not attend the hearing listed on 10th April 2006 and a postponement was not granted, the Tribunal can make a decision on the case without any further notice. She has clearly received the relevant letter.
The Tribunal decided to proceed to make a decision on the review under the provisions of s.426A of the Migration Act.
The Tribunal summarised the applicant’s claims from her protection visa, and they appear on pages 60 and 61 of the court book.
The Tribunal’s findings and reasons are set out on pages 61 and 62 of the court book. The Tribunal was satisfied that the applicant was a citizen of China, but noted that she had made a series of vague and general claims lacking in details. Whilst she claimed to be a practitioner of Falun Gong, she did not give any details about Falun Gong activities in which she may have been involved. The Tribunal went on to say that in essence the applicant makes a series of vague assertions.
The Tribunal went on to say further that without further details, clarifications, corroboration of evidence and without having had the opportunity to explore the claims of the applicant at the hearing and to test the evidence, the Tribunal was not satisfied that the applicant was ever a practitioner of Falun Gong or had a friend who was a Falun Gong leader, or was ever involved in activities relating to Falun Gong.
The Tribunal found that on the basis of the available information it was not satisfied that the applicant had suffered any convention related harm, and was not satisfied that there was a real chance of harm occurring to the applicant in the reasonably foreseeable future.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention, and did not satisfy the criterion set out in s.32(2) for a protection visa.
The applicant seeks judicial review of the Tribunal decision. She filed an application on 6th June, accompanied by an affidavit. The applicant claims that she was denied procedural fairness and natural justice in that her request for postponing the hearing due to her health reason was unreasonably refused by the Tribunal. She gives the following particulars:
The applicant was given an opportunity to appear before the Tribunal on 10th April 2006. She did not go to the hearing due to her medical problem. She sent a facsimile to the Tribunal explaining the reason, and asking for a further opportunity to appear. The Tribunal rejected her request and made a decision without further attempt to take evidence from the applicant.
The only ground in the application is a complaint that the applicant was not given an opportunity to attend the Tribunal hearing. The Tribunal, having decided to exercise its power under s.426A, considered that the evidence before it was insufficient to be satisfied that the applicant had a well founded fear of persecution. As the Tribunal had previously informed the applicant that the evidence before it was insufficient to allow it to make a decision in her favour, and the Tribunal then invited the applicant to attend the hearing to give evidence, it is hardly surprising that the Tribunal decided that the evidence before it was insufficient for it to be satisfied that the applicant had a well founded fear of persecution for a convention ground.
There are many decisions relating to this point, and I refer to SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16], and SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [15] and [16]. In particular, it has been held that by not attending a hearing an applicant waives his or her opportunity to present further evidence.
In this case, however, the applicant said that she wished to attend the hearing but was prevented by illness.
As this was essentially a factual issue and the applicant had deposed briefly to that ground in her affidavit, I considered it appropriate to take oral evidence from the applicant about that point. The applicant in her evidence said that on the day of the hearing she was sick. She had a sore leg and was unable to walk. She had a fever. She said that the day or the afternoon or the evening before the hearing she contacted her friend, being the person who had helped her prepare her application, to advise that she would not be able to attend the hearing the following day. She did not contact the Tribunal herself because she did not know anybody at the Tribunal. She admitted that she had signed the faxed message on page 51 of the court book, and said a friend had prepared it for her. The applicant said that she had signed it in another person’s office. She was adamant that she had signed the fax the day before the hearing, and when asked how she was able to get to that person’s office if she was suffering from a sore leg and was unable to walk, said that her relative drove her there.
The applicant gave evidence that she did not see a doctor. She said that it was too expensive and she just bought some medication.
In cross-examination the applicant confirmed that she had not seen any doctor in relation to her leg, and that she had just bought some ointment for it. She gave an explanation that the person who prepared the fax for her no doubt thought that she was going to see a doctor, and put that in the message for her. I find that an unconvincing explanation.
For the respondent Minister, Ms Henderson of counsel referred the Court to the decision of Mansfield J in Hossain v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 842 and submitted that it was not open to her to rely upon common law concepts of procedural fairness and natural justice in her challenge to the Tribunal’s decision because the application was made after the commencement of s.422B of the Migration Act. It was not open to her to claim simply that the Tribunal was unreasonable, that the applicant must rely upon the obligations imposed on the Tribunal by the Act in order to make good her challenge.
She also submitted that the Court, when looking at whether the Tribunal had exercised discretion, should consider the circumstances. One example given as set out in Hossain (supra) is where an applicant was in hospital and could not have attended. Ms Henderson also pointed out that the applicant had not provided any evidence to the Court to support her claim of illness, and referred to the decision of Branson J in SZEIL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1067.
The circumstances as they appear are that, despite what the applicant said, there is evidence to show that no contact was made to the Tribunal until after the date of the hearing had elapsed. Whilst the applicant asserted that she had contacted someone prior to the hearing, she had not contacted the Tribunal and the faxed message which the applicant signed was dated 12th April and bears a fax stamp on it showing that it was sent at 10.16am on 12th April and received at the Tribunal at 10.36 am on 12th April. The faxed message is clearly incorrect when it says:
I forgot to ask my doctor for a medical certificate but I have asked him to issue a certificate. I will fax the certificate to you when I receive it.
There was no medical certificate. On the applicant’s own evidence she never went to the doctor. On the applicant’s evidence she has never been to the doctor about her leg since she has arrived in Australia.
She bought some ointment or medication for her leg. Whether or not that was sufficient to deal with an ailment of a sore leg and a fever which the applicant claims was so severe as to prevent her from attending a hearing at the office of the Tribunal, is difficult to assess. The fact is the applicant did not send any message to the Tribunal until two days after the hearing. The message made assertions about seeing a doctor and obtaining a medical certificate, but these were quite untrue.
I am not satisfied on the evidence before me that the applicant did suffer any illness or injury of such severity that would have precluded her from attending a hearing on 10th April, or would have precluded her from arranging for someone to contact the Tribunal prior to the hearing to advise that she was not going to be able to attend.
The Tribunal was faced with a situation where the applicant did not attend the hearing and had not responded to a hearing invitation.
The Tribunal received nothing except the faxed request for a postponement, with a promise of a medical certificate which never arrived. The information given to the Tribunal was insufficient to enable the Tribunal to form any view that the applicant suffered an illness of such severity as to preclude her from attending a hearing.
In my view the Tribunal did not fail to exercise its discretion under s.426A of the Migration Act in an appropriate way.
I am satisfied that no jurisdictional error has been shown in that respect, or in any other respect. The applicant is not legally represented, and on my reading of the decision and the correspondence in the court book there is nothing which indicates any other jurisdictional error. As there is no jurisdictional error the decision is a privative clause decision as defined by s.474(2) of the Migration Act. Consequently the decision is not subject to the writs of certiorari and mandamus which the applicant seeks. The application will be dismissed.
There is an application for costs on behalf of the respondent Minister. The costs, including counsel’s fees, are estimated at $4,500.00.
I consider that an appropriate amount. The applicant does not have the money to pay, as she told the Court, and I will take that into account in assessing time to pay.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 26 October 2006
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