SZJLR v Minister for Immigration - [2006] FMCA 1941

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJLR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1941

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong – did not attend Tribunal hearing – consent forwarded by agent – no arguable case – application dismissed at show cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.425(2)(b), 426A(1), 476, 477

Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142
Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152

Applicant:

SZJLR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2818 of 2006

Judgment of:

Smith FM

Hearing date:

20 December 2006

Delivered at:

Sydney

Delivered on:

20 December 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms K Rose

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $1,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2818 of 2006

SZJLR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 3 October 2006 seeking an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”). The application concerns a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 March 2004 and handed down on 23 March 2004, in which the Tribunal affirmed a decision of a delegate made on 23 May 2003 refusing to grant a protection visa to the applicant.
The application was returnable at a first court date before me on 25 October 2006. The applicant attended and had the assistance of a Mandarin interpreter. I made orders allowing him to file an amended application and any evidence by 8 December 2006, after receiving a referral for free legal advice and a bundle of relevant documents. The applicant was warned that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has received legal advice, but has not filed an amended application or any submissions. Nor has he filed any evidence explaining either why he did not attend a Tribunal hearing, or the long delay after the Tribunal’s decision before he commenced proceedings for judicial review. As I shall discuss below, he today gave an unsworn explanation for his non‑attendance.
In respect of the delay, the Minister’s representative has informed me today that she does not have evidence which would establish the incompetence of the application under s.477 of the Migration Act, in particular to establish that the applicant had “actual notification” of the Tribunal’s decision on a date earlier than the statutory time limit. I have therefore today addressed only the question of whether the application raises an arguable case in relation to its substantial merits.
The applicant arrived in Australia in March 2003 and employed a person who was then a migration agent, Mr Jack Meng, to lodge an application for a protection visa on 19 March 2003. The application attached a statement explaining why the applicant sought protection in Australia against return to the People’s Republic of China.
The applicant claimed that he feared persecution because he was a Falun Gong practitioner. The applicant referred to the crackdown by the Chinese government, and claimed that he had then been forbidden to sell his chickens and eggs at the market to make a living. He claimed to have been forced to “sign a confession against my will that I would never practise Falun Gong any more”. He claimed:
In the last four years, I have been living in constant fear. Although I did not dare to practise Falun Gong in public, I was required to go to the local police station to report my life regularly. Some of my relatives and old friends did not contact me as before because they were afraid of being implicated by me.
The applicant claimed he had continued to meet Falun Gong practitioners in private, and had “managed to obtain a valid passport and a valid visa to come to Australia”.
No details of these claims were provided to the Department nor to the Tribunal, and no corroboration was ever provided.
The applicant again employed Mr Meng to bring an application for review, which was filed on 19 June 2003. This gave Mr Meng’s address as the applicant’s mailing address and requested that correspondence should be sent to that address. It authorised Mr Meng “to act on my behalf in relation to this case”.
The Tribunal sent to the applicant at that address a letter dated 9 December 2003, with a copy addressed to Mr Meng at the same address. Another copy was sent to a hotel which had been given as the applicant’s residential address, but this was returned unclaimed. The letter informed the applicant:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter invited the applicant to attend a hearing on 22 January 2004 to present oral evidence and arguments in support of his claims. It warned the applicant that if he did not attend the Tribunal could make a decision on his case without further notice, and requested that he complete and return a “Response to Hearing Invitation” form.
This form was returned to the Tribunal on 5 January 2004. It has a signature in Chinese character which appears similar to the signature of the applicant on other documents, but the applicant in unsworn evidence today denied that it was his signature. The form told the Tribunal that the applicant did not want to come to the hearing, and that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The applicant in unsworn statements told me that he was informed by Mr Meng of the invitation to attend the hearing. He said Mr Meng asked him whether he wanted to go or not. The applicant asked Mr Meng: “Do I need to go?” Mr Meng said: “It’s up to you. If you don’t want to go, forget about it”. The applicant told me, in effect, that he was busy at the time and decided not to go. He now regrets that decision, and considers that Mr Meng failed to give him appropriate advice about the importance of attending the hearing. Although this evidence was given in an unsworn form, I am prepared to assume that it was true. However, as I shall explain, I do not consider that it suggests an arguable ground of jurisdictional error.
In its statement of reasons, the Tribunal referred to receiving the consent, and said that it proceeded to make a decision accordingly. I note also that the Tribunal’s decision was not handed down until after the date of the appointed hearing. In my opinion, the Tribunal was in the circumstances authorised both by s.425(2)(b) and s.426A(1) of the Migration Act to proceed to make a decision without taking any further steps.
The Tribunal referred to the absence of essential details from the applicant’s claims, and said:
Overall, in view of the insufficient information and lack of detail contained in the applicant’s claims, the Tribunal is unable to be satisfied that the applicant has been persecuted for a Convention reason in the past, or that there is a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future.
I have considered the procedures and reasoning of the Tribunal and cannot see any arguable jurisdictional error affecting its decision.
Assuming that at a final hearing the applicant would be able to present evidence which persuaded me to accept his explanation for his absence from the Tribunal’s hearing, I do not consider that would provide him with an arguable jurisdictional error. There is now a body of authority binding on this Court that negligent or even fraudulent advice given by an agent of which the Tribunal had no notice, cannot provide grounds for setting aside a Tribunal decision made in the present circumstances (see Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 and cases cited). The applicant does not deny that he authorised his agent to inform the Tribunal that he did not wish to attend the hearing (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152).
The applicant’s application to this Court contains as its grounds:
1.The Tribunal did not observe Migration Act 1958 properly to making the decision.
2.The Tribunal failed to consider my claims, because I absented the Tribunal hearing.
However, no particulars of how these contentions could be given substance as jurisdictional errors are provided, and in my opinion they do not raise an arguable case. I consider the Tribunal was plainly aware of the claims that had been made by the applicant, but was unable to be satisfied by them. I can see no requirement of the Migration Act which the Tribunal arguably failed to observe.
Considering all the material before me, I am not satisfied that the applicant has raised an arguable case for the relief claimed, and I consider that it is appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 12 January 2007