SZJDT v Minister for Immigration - [2007] FMCA 544

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJDT v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 544

MIGRATION – Application to review decision of Refugee Review Tribunal.

Migration Act 1958 (Cth) s.424

Minister for Immigration & Multicultural &Indigenous Affairs v VSAF of 2005 [2005] FCAFC 73
SJSB v Minister for Immigration & Multicultural &Indigenous Affairs [2004] FCAFC 225
SZEEU v Minister for Immigration & Multicultural &Indigenous Affairs (2006) 150 FCR 214
VAF v Minister for Immigration & Multicultural &Indigenous Affairs (2004) 206 ALR 471

Applicant:

SZJDT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2157 of 2006

Judgment of:

Barnes FM

Hearing date:

2 April 2007

Delivered at:

Sydney

Delivered on:

2 April 2007

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr G Johnson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The name of the first respondent be altered to Minister for Immigration and Citizenship.
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2157 of 2006

SZJDT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REFUGEE REVIEW TRIBUNAL

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 4 July 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, who claims to be a national of the People's Republic of China, arrived in Australia in February 2006 and applied for a protection visa. In a statement attached to his protection visa application he claimed to be a Falun Gong practitioner and to be at risk in China by reason of his activities in China.
His application was refused by a delegate of the first respondent and he sought review by the Tribunal by application lodged on 10 April 2006. In that application he provided a residential address and a different address for correspondence. He answered “no” to the question as to whether or not he had an adviser authorised to act for him in relation to the application. He provided a statement to the Tribunal, again claiming to be a member of Falun Gong who had practised for many years, that he had been summoned by a local Chinese court, a local police station and feared persecution because of his activities in China.
The Tribunal wrote to the applicant on a number of occasions, by letters addressed to the address for correspondence provided in the review application. In particular, in the material before the Court is a letter dated 1 May 2006 inviting the applicant to attend a hearing on 5 June 2006 and warning the applicant that if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice.
The Tribunal recorded in its reasons for decision that the applicant did not return the response to hearing invitation form provided with that letter and did not attend for a hearing on the date or time specified. In those circumstances, pursuant to section 426A of the Migration Act 1958 (Cth) the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
Before turning to that decision I note that the Tribunal wrote again to the applicant by letters addressed to his address for correspondence by two letters dated 2 May 2006 and although these letters each commence:
This correspondence is addressed to you as the authorised recipient of the review applicant -
it is apparent that these letters are addressed to the named applicant at the correspondence address provided in the application for review. The first of these letters requested that the applicant provide information (under s.424) and the second requested his comment on particular information and explained its relevance to the review (under s.424A). In each case the applicant was advised that if he did not respond by 25 May 2006 the Tribunal may make a decision on the review without further notice.
As indicated, the Tribunal in fact decided pursuant to section 426A of the Act to make its decision on the review without taking further action to enable the applicant to appear before it after his non-appearance at the scheduled Tribunal hearing. The Tribunal found that as the applicant did not attend the hearing his claims could not be tested and on the written material before it there was nothing to support the applicant’s claims, other than his unsubstantiated assertions, and there were insufficient particulars in a number of respects to enable the Tribunal to establish the relevant facts. The Tribunal had not been able to explore the details of the applicant’s claims or their truthfulness because he did not attend a hearing.
The Tribunal found therefore it was not satisfied that any of the applicant’s claims were true; in particular, that he was a Falun Gong practitioner in the People's Republic of China, that he was involved in organising Falun Gong activities or possibly attracting new members, that he was summoned by the local Court and local police station, possibly under strict surveillance with his phone calls illegally monitored and deprived of human freedom. The Tribunal was not satisfied on the evidence before it that the applicant faced a real chance of persecution or had a well-founded fear of persecution for a Convention reason should he return to the People's Republic of China.
The applicant sought review by application filed in this Court on 7 August 2006. While the grounds might be seen in one sense as merely challenging the merits of the Tribunal’s decision, because of the manner in which they are formulated and because the applicant is self‑represented, I asked him for further information in relation to his grounds. The first involves a claim that he provided a certified copy of a Falun Gong membership card (which is described) and also a translated letter from a member of the Falun Gong Association in China and that the Tribunal did not accept the fact.
There is no such membership card or letter on the material before the Court and no reference to such material in either the delegate’s decision or the decision of the Tribunal. When asked what documents he referred to, where and when they were submitted, the applicant was unable to assist.
Similarly, the second ground in the application is a claim that the applicant continued to practise Falun Gong since his arrival in Australia and that the Tribunal did not accept this. When asked where and how he put this claim to the Tribunal, the applicant indicated that he had asked his lawyer to tell the Tribunal. I note that there is nothing in the application to the Tribunal to suggest that the applicant had a lawyer, migration agent or other authorised recipient acting for him and again, there is no evidence that any such claim was put either to the department or the Tribunal.
In those circumstances any proposition that might be implied that the Tribunal had such material or failed to have regard to aspects of the applicant’s claims in such respects has not been established. Insofar as the applicant seeks merits review, merits review is not available in these proceedings.
The written submissions for the respondent address a number of issues. The respondent relied on affidavits of Jonathan Willoughby-Thomas sworn on 29 March 2007 and Laura Ghazi sworn on 30 March 2007 in relation to notification of the applicant of the invitation to a hearing and of the request for information under section 424 and request for comment under section 424A of the Migration Act.
Before turning to that material I also note that as is suggested in the respondent’s submissions, contrary to the date of notification of the Tribunal decision provided in the application for review filed on 7 August 2006, it appears that at the directions hearing it was clarified that the application was within time, having regard to the time of notification of the Tribunal decision. There was no suggestion in the proceedings before me that the application was out of time or that it was necessary to consider the operation of section 477 of the Migration Act. I have proceeded on that basis.
The letters sent to the applicant under sections 424 and 424A of the Act were sent by one of the methods described in section 441A and in compliance with the applicable provisions in relation to each of those provisions. It is apparent on the material before the Court that the prescribed periods were observed and that the letters of 2 May 2006 which requested comment or information by 25 May 2006 each provided the appropriate period of time within section 441C(4) of the Act and 441A of the Act.
Similarly, and this was the material relied on by the Tribunal, the invitation to the hearing dated 1 May 2006 complied with section 425A of the Act, in that it was sent by a method specified in section 441A and in compliance with section 425A(3) and regulation 4.35D. The applicant was given more than the prescribed period of notice. Based on the affidavit material before the Court I am satisfied that no issue is raised in relation to compliance with the provisions of the Migration Act as to notification to the applicant in these respects. Indeed I note that no issue is taken by the applicant in relation to either deemed notification or receipt of any of this correspondence from the Tribunal.
Accordingly, given the non-appearance of the applicant at the scheduled Tribunal hearing, the Tribunal was entitled to proceed as it did under section 426A to make a decision on the review without taking any further action to enable the applicant to appear before it. I note in that respect that the Tribunal considered the circumstances in which it notified the applicant of the hearing and his failure to return the response to hearing invitation form or to attend the hearing.
In any event, although the Tribunal did not make its decision on this basis, as the written submissions for the first respondent pointed out, as the applicant did not respond to either of the invitations under section 424 or 424A of the Act within the time provided, section 424C was applicable so that the Tribunal was not obliged to take any further action to obtain the additional information or the comments and moreover, by reason of sections 425(2)(c) and 425(3), the applicant was not entitled to appear before the Tribunal. Again, for completeness, I note that in fact the Tribunal decision was not made until after the time originally scheduled for the hearing had passed.
The respondent’s submissions also address the application of section 424A. As submitted, the Tribunal’s evaluation of the evidence as being insufficient to satisfy it is not information to which the obligation in section 424A of the Act applies; see in this respect VAF v MIMIA (2004) 206 ALR 471 and SZEEU v MIMIA (2006) 150 FCR 214 at 18 per Moore J and 205 to 207 and 223 per Allsop J. Moreover, absent satisfaction that the criteria for the protection visa were fulfilled in the circumstances of this case the Tribunal had no alternative but to refuse the application and no jurisdictional error is established in it proceeding in that manner; see SJSB v MIMIA [2004] FCAFC 225 and MIMIA v VSAF of 2005 [2005] FCAFC 73.
As no jurisdictional error has been established, the application must be dismissed. The Minister seeks that the name of the first respondent be altered to Minister for Immigration and Citizenship and it is appropriate that that name change be recorded and seeks costs in the sum of $5,000 which is an appropriate amount having regard to the nature of this and other similar matters.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 13 April 2007