SZJBB v Minister for Immigration & Anor - [2006] FMCA 1748

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJBB v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1748

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of China – applicant claims to be a Falun Gong practitioner – where applicant did not attend Tribunal hearing – where applicant claims default by migration agent – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.425, 426A, 474(2)

Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 172
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287

Applicant:

SZJBB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1928 of 2006

Judgment of:

Scarlett FM

Hearing date:

14 November 2006

Date of Last Submission:

14 November 2006

Delivered at:

Sydney

Delivered on:

14 November 2006

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Migration Review Tribunal is removed as a party to the proceedings.
The title of the Second Respondent is Refugee Review Tribunal.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1928 of 2006

SZJBB

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 affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on

20^th June 2006. The Tribunal affirmed the decision of a delegate of the Minster not to grant the applicant a protection visa. The applicant seeks a declaration that the decision of the Refugee Review Tribunal is null and void and a writ of certiorari quashing the decision.
The application seeks a writ of certiorari directed towards the first respondent Minister rather than the second respondent, the Tribunal, but I presume that this is just an oversight.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 11^th December 2005. He applied for a protection (class XA) visa on 23^rd December 2005 but it was refused on 2^nd March 2006. He then applied to the Refugee Review Tribunal for review of that decision. The applicant lodged his application for review at the Sydney registry of the Refugee Review Tribunal on

10^th April 2006. He did not provide any telephone numbers in his application and did not nominate anyone as his adviser. I note that a migration adviser, Grace X Chen completed the interpreter’s declaration in section G of the application for review. She was not, however, nominated to act as the applicant’s authorised recipient.
The applicant submitted a copy of the delegate’s decision record with his application but did not submit any other documents. The Tribunal wrote to the applicant at his nominated address for correspondence on 24^th April 2006 informing him that it had considered the material before it in relation to his application but was unable to make a decision in his favour based on that information alone.

Accordingly, the Tribunal invited the applicant to attend a hearing to give oral evidence and present arguments in support of his claims.

The hearing was scheduled for 26^th May 2006.
The Tribunal did not receive any response to the hearing invitation. The applicant had not provided any telephone number upon which he could be contacted. The applicant did not attend the Tribunal hearing on the scheduled date. The Tribunal decided to use its power under s.426A of the Migration Act to make its decision on the review without taking any further action to allow the applicant to appear before it.

The Tribunal signed the decision record on 31^st May 2006. A copy of the Tribunal’s decision record appears at pp.55 to 60 of the Court Book.
The Tribunal noted the applicant’s claim that he feared that he would be arrested, detained and persecuted as a dissident and because he’s an active Falun Gong practitioner. The Tribunal in its findings and reasons set out at pp 59 and 60 of the Court Book accepted that the applicant was a national of the People’s Republic of China.

The Tribunal noted that the applicant returning to China because he was a Falun Gong practitioner and because of his dissident political opinions. The Tribunal stated that the applicant’s claims lacked detail and noted that the applicant had not provided any details of (a) his Falun Gong history, principles or practice, (b) when, where or how often he practised Falun Gong, (c) his interrogation, investigation or detention by the Public Security Bureau or (d) his practice of Falun Gong in Australia.
The Tribunal stated that it had put the applicant on notice that it was unable to make a decision in his favour on the material it had before it. But he did not provide any further information or attend the hearing to give oral evidence. The Tribunal stated:
Given the lack of detail, the Tribunal is unable to make findings of fact in relation to the applicant’s claims. As the Tribunal is unable to make findings of fact in relation to the applicant’s claims, it follows that the Tribunal is unable to find that the applicant has a well-founded fear of persecution for a Convention reason arising from his claims.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and affirmed the decision not to grant the applicant a protection visa.
The applicant filed an application in this Court on 12^th July 2006 accompanied by a brief affidavit to which he annexed a copy of the Tribunal decision. I note that his application names the Refugee Review Tribunal or the Migration Review Tribunal as second respondent and I will make an order removing the Migration Review Tribunal as a party.
Although I made directions at the first Court date on 21^st August 2006 that the applicant may filed an amended application by 25^th September 2006 and was to file an outline of submissions 14 days before the hearing, no amended application or outline of submissions has been forthcoming.
The grounds of the application are:
(1) I am a citizen of China. If I go back to China I will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of refugees.
(2) Member of the RRT failed to understand my claims and failed to consider relevant matters. Further particulars to be provided.
(3) Migration agent misled me. I did not attend scheduled hearing of RRT.
(4) The respondent refused to grant my protection visa without any proper grounds and proper investigation.
The applicant told the Court that when he first arrived in Australia he found a migration agent. The agent did not have qualifications as a lawyer. He said that what she put into his application for a protection visa was not consistent with his experience. At the time he did not know the language or the law. He asked the agent to do everything for him. The applicant asked the Court if he could have the chance to hire a lawyer to deal with his case from the beginning. I pointed out to him that he had left that request rather late as the matter was now listed for final hearing.
The applicant said that he was not a Falun Gong practitioner but he just helped Falun Gong people keep their books after the crackdown by the Communist Party. After he read a book that he had found he saw that Falun Gong came from the same background as Buddhism.

He advised that his wife’s brother had distributed Falun Gong pamphlets and was arrested and says that if he returns to China probably he will face persecution as well. The applicant said that his failure before the Refugee Review Tribunal as all the agent’s fault and seeks another chance to go to the Tribunal.
I think it is fair to say that the applicant has not shown any jurisdictional error either in his application or in his submissions to the Court. His first ground, which says that he will be at risk of suffering persecution if he were to return to China, is a statement relating to his case but is not a ground of review.
The applicant’s second ground is that the Tribunal failed to understand his claims and failed to consider relevant matters. That ground also said that further particulars would be provided. But no further particulars have been provided. The Tribunal decision summarised the applicant’s claims and there does not appear to me to be any failure on the Tribunal’s part to understand what those claims were. It is submitted by Ms Nanson for the respondent Minister, and I believe correctly, that the Tribunal’s conclusion was open to it for the reasons that it gave.
The applicant was put on notice that the Tribunal had considered the material before it in relation to his claims but was unable to make a favourable decision on that information alone.
The third ground is that the applicant says that his migration agent misled him so that he did not attend the scheduled hearing.

The application for review by the Refugee Review Tribunal does not nominate a migration agent to act for the applicant and just provided a residential address as the address for service of correspondence.

There is no evidence before the Court to show that that correspondence was returned unclaimed. There is no evidence before the Court to show that the applicant was misled or otherwise misadvised by a migration agent so that he did not attend the Tribunal hearing.
Even if the applicant had a migration agent who misled him, that would not constitute jurisdictional error on the part of the Tribunal. I refer to the recent decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 in the judgments of Allsop and Graham JJ.
The applicant also submitted that the respondent refused to grant his protection visa without any proper grounds and proper investigation.

If by the respondent the applicant means the Refugee Review Tribunal, there was no obligation on the Tribunal to conduct its own inquiries.

It is patently clear that the reason why the Tribunal affirmed the delegate’s decision was due to lack of evidence on the part of the applicant. The Tribunal had written to the applicant saying that there was not enough material to make a decision in his favour. That is why the Tribunal invited the applicant to attend a hearing under s.425 of the Migration Act.
The applicant did not attend, so the Tribunal was left with no more information than it had before and it had already found that that information was insufficient to enable it to be satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
As has been pointed out in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811, and also in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the applicant failed to accept the opportunity to attend the Tribunal and provide further evidence, the inevitable consequence was the rejection of his application. That is the situation here. The findings that the Tribunal made, that is, that the evidence was insufficient, were entirely open to the Tribunal on the scant information that there was. Perhaps if the applicant had attended the Tribunal hearing the result may have been different.
I am not satisfied that any reason has been shown as to why the applicant did not attend the hearing and I am certainly not satisfied that any jurisdictional error has been shown. I am mindful of the fact that the applicant is not legally represented. He asked today for a chance to obtain legal representation to deal with his case from the beginning.

It must be obvious that the time to obtain legal advice is when one is commencing legal proceedings, not in the middle of a final hearing.
Nevertheless, I have read through the decision myself independently of the submissions of either party in order to satisfy myself that no other jurisdictional error appears. I am not able to find any. As there is no jurisdictional error, the decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. Consequently, the application will be dismissed with costs.
To my mind, this is a matter where an order for costs should be made in favour of the first respondent. The amount is $3,300.00 which is an appropriate figure.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 23 November 2006