SZIXX v Minister for Immigration & Anor
[2006] FMCA 1415
•14 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIXX v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1415 |
| 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 – citizen of the People’s Republic of China claiming fear of persecution as a Falun Gong practitioner – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B, 425, 425A |
| SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 2 Yo Han Chung v University of Sydney [2002] FCA 186 |
| Applicant: | SZIXX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1647 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 September 2006 |
| Date of last submission: | 14 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms McDonald |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1647 of 2006
| SZIXX |
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. The decision was signed on 3rd May 2006 and handed down on 23rd May 2006.
The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa. The Applicant now seeks orders:
a)for a declaration that he is a refugee;
b)a declaration that the decision of the Tribunal was made in excess of jurisdiction and is therefore null and void;
c)an order in the nature of prohibition to prevent the Minister and her agents from removing him from Australia.
Background
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 9th December 2005. He applied for a protection visa on 9th January 2006 but it was refused on 31st January 2006.
On 3rd March the Applicant sought a review of that decision from the Refugee Review Tribunal. The Applicant did not submit any other documentation when he submitted his application for review.
The Tribunal wrote to the Applicant on 9th March acknowledging receipt of the application for review. The Tribunal's letter explained that after looking at the information the Tribunal Member may either make a decision in his favour or invite him to attend a hearing of the Tribunal. The letter under the heading "What is a hearing and why is it important" told the Applicant that:
A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence can include:
· what you tell the member at the hearing
· information or documents you give the Tribunal
· information or documents you ask others to give the Tribunal
The letter went on to tell the Applicant that there were phone numbers upon which he could call. The letter went on to say:
For assistance in your language, please contact the Translating and Interpreting Service (TIS) on 131 450.
A copy of this letter is set out on pages 60 and 61 of the Court Book. The Tribunal wrote again to the Applicant on 23rd March 2006. A copy of that letter is set out on pages 62 and 63 of the Court Book.
The Tribunal told the Applicant that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.
The Tribunal's letter invited the Applicant to attend a hearing on the morning of Thursday 27th April 2006. The letter asked the Applicant to complete a response to hearing invitation form and return it to the Tribunal. The Applicant completed the form and it was returned to the Tribunal. On 4th April 2006 the Applicant indicated that he wished to attend a hearing and would require an interpreter in the Mandarin language.
The Applicant did not attend the hearing. It appears that no message was received by the Tribunal to the extent that he was not able to attend. The Applicant has since told the Court that he was sick that day. The Tribunal made the decision to proceed to determine the matter without taking any further action to enable him to appear before the Tribunal using its power under s.426A of the Migration Act.
The Tribunal noted at page 76 of the Court Book that the Tribunal was satisfied that the Applicant was aware of the invitation. The Tribunal went on to say:
The applicant failed to contact the Tribunal to seek a postponement of the hearing or to provide any reason why he could not attend at the scheduled time.
The Tribunal considered the Applicant's claims and evidence, such as there were, on pages 75 and 76 of the Court Book.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons, which are necessarily brief, are set out on pages 76 and 77. The Tribunal accepted that the Applicant was a national of the People's Republic of China. The Applicant had submitted a copy of his passport with his application for a protection visa. However, the Tribunal found that the Applicant had given only very vague details regarding his reason for having a well-founded fear of persecution, namely, his practice of Falun Dafa or Falun Gong.
The Tribunal noted that he provided no details of a number of matters. The Tribunal went on to say that it would have wished to explore the details of certain events with the applicant and to test the veracity of his claims but as the Applicant did not appear before the Tribunal the Tribunal was unable to do so. The Tribunal went on to find on page 77 of the Court Book:
Given the general nature of the claims and the fact that the Tribunal has been unable to explore further and test the veracity of the applicant's claims, the Tribunal is not satisfied that the applicant has been or is a practitioner of Falun Dafa. The Tribunal is not satisfied on the material before it that the applicant was questioned by police in December 1999 in relation to his involvement in Falun Dafa and that the had to report to police regularly after that. The Tribunal is also not satisfied that the applicant allowed a friend to print Falun Dafa material at his home and that he was detained and sentenced to a period of detention as a result. The Tribunal is not satisfied that the applicant has been or is a person of interest to the police in China.
The Tribunal was not satisfied that the Applicant had experienced serious harm amounting to persecution for a Convention reason or that he 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 the Applicant a protection visa.
Application for judicial review
The Applicant sought a review of that decision by means of an application filed on 9th June 2006. He filed an amended application on 25th August. In that amended application he sets out three grounds. First, he claims that the Tribunal did not observe procedures required by the Migration Act and Migration Regulations. The second ground is that the decision was an improper exercise of the power conferred by the Migration Act and Regulations. There is a further allegation that the decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the Refugee Review Tribunal. The third ground is that the Applicant says:
I did not receive any response or letters from my free lawyer who authorised by RRT to give me free law advice so I have to say the RRT failed to carry out its statutory duty and failed to review my application.
The First Respondent opposes the Applicant's application and I have read the First Respondent's amended outline of submissions. The first point that the First Respondent makes is that the assertions in the amended application are unparticularised. It is further submitted that there is no substance to any of the Applicant's complaints.
The Respondent Minister submits that the Tribunal could not grant the Applicant a protection visa unless it was satisfied that the criteria for the grant of a protection visa were met (see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15]- [16]). The Respondent notes that when the Applicant failed to appear the Tribunal was entitled to make a decision under s.426A without taking any further action to enable the Applicant to appear. I am referred to the decision of S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at [26] where the Full Court said that the applicant -
cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity.
The First Respondent's submissions also addressed the grounds in the Applicant's original application and for completeness I will consider those. Those original grounds contain an allegation that the Tribunal failed to carry out its statutory duty to review the application, that the Tribunal was biased and did not act in a bona fide manner and used illogical or irrational reasoning. There are no particulars of any failure to carry out the Tribunal's statutory duty. There is no evidence whatsoever that the Tribunal was biased or acted in otherwise than a bona fide manner. The Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 sets out at [43] – [48] a useful exposition, with respect, of principles to be observed in matters where there is an allegation that the Tribunal did not act in good faith. The Full Court said at [43]:
An allegation of bad faith is a serious matter involving personal fault on the part of the decision‑maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved.
The Full Court also pointed out at [44] -
that the circumstances in which the Court will find an administrative decision‑maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
With respect, I agree and I am satisfied that that principle applies in this case. The fact is that the Applicant did not attend the Tribunal hearing. He was invited to attend in ample time and indicated that he wished to attend. He told the Court today that he had developed an illness due to his unfamiliarity with the food in this country. I have no reason to doubt that explanation. The Applicant said that he stayed at home and rested for the day rather than attend the Tribunal hearing.
He made no effort to contact the Tribunal either on that day or subsequently.
I note that the Tribunal did not make the decision on the day of the hearing, which was 27th April. The Tribunal waited until 3rd May to sign the decision and the Tribunal noted that the Applicant had not contacted the Tribunal to seek a postponement of the hearing or provide any reason why he could not attend at the scheduled time.
In my view, the Tribunal exercised its discretion under sub-s.426A (2) in an appropriate manner. It allowed a reasonable time for the Applicant to contact the Tribunal if he chose to do so explaining that he was sick so that another hearing could be appointed. The Applicant did not do so. In my view, the Tribunal complied with s.425 by inviting the Applicant to attend a hearing and complied with s.426A in making a decision to decide the matter without enabling the Applicant to appear on a further occasion.
The Applicant has not made out any jurisdictional error. I am mindful of the fact that the Applicant is not legally represented. He claims that the Tribunal failed in its duty in that he did not hear from the lawyer on the legal advice panel operated by the Refugee Review Tribunal. I note that from the Court file a referral was made to a member of the panel on 27th July. It is not part of the Refugee Review Tribunal's function to provide free legal advice for applicants seeking to review its decisions. The fact that it does so is an indication of the Tribunal's policy of assisting applicants before it in litigation before the Court. There is no error on the part of the Tribunal if for some reason the Applicant was not able to avail himself of the legal advice offered.
The Applicant is unrepresented in the proceedings today. As has been set out in Yo Han Chung v University of Sydney [2002] FCA 186 at [31] – [34], where an applicant is unrepresented the Court is required not only to consider the arguments put by the Applicant but also independently consider whether an arguable case based on the material could be made out. I have considered that matter and I am unable to find any arguable case. I certainly agree with the First Respondent's submission that s.424A has no application in the situation where an applicant was unsuccessful because he had provided insufficient detail and evidence in support of his claims (see SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 per Allsop J at [11] – [13]).
There is no jurisdictional error. Because no jurisdictional error has been made out, the decision is a privative clause decision as defined by
sub-s.474(2) of the Migration Act. Consequently the order is not subject to the declaration sought by the Applicant or an order in the nature of prohibition sought by the Applicant. The application must be dismissed with costs.
The Applicant has been wholly unsuccessful in his claim and in my view there is no reason why costs should not follow the event.
The amount sought, namely, $2,400.00, is an appropriate figure in the circumstances and I propose to make the costs order that is sought.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 21 September 2006