SZJMF v Minister for Immigration - [2007] FMCA 2029

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJMF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2029

MIGRATION – Review of RRT decision – where applicant did not attend Tribunal hearing.

Migration Act 1958 (Cth), s.426

Applicant:

SZJMF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2864 of 2006

Judgment of:

Raphael FM

Hearing date:

30 November 2007

Date of last submission:

30 November 2007

Delivered at:

Sydney

Delivered on:

30 November 2007

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Mr Mitchell

Solicitors for the Respondent:

Blake Dawson

ORDERS

Application dismissed.
Applicant to the First Respondent's costs assessed in the sum of $3300.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2864 of 2006

SZJMF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the People's Republic of China who arrived in Australia on 28 March 2006. On 24 April 2006 he applied to the Department of Immigration & Multicultural Affairs for a protection (Class XA) visa. That application was declined by a delegate of the Minister on 22 May 2006. On 26 June 2006 the applicant applied for review by the Refugee Review Tribunal.
On 11 July 2006 the Tribunal wrote to the applicant 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 on that information alone. The Tribunal invited the applicant to a hearing on 28 August 2006. The applicant indicated in a response to hearing invitation form [CB 65] that he wished to come to the hearing but when the hearing took place he did not attend.
On 28 August 2006 the Tribunal determined to affirm the decision under review and handed that decision down on 19 September 2006, having exercised its discretion under s.426 of the Migration Act1958 (Cth) (“the Act”) to deal with the application in the absence of the applicant.
The applicant's grounds for claiming that he was a person to whom Australia owed protection obligations can be found in a statement at [CB 27]-[29]. He claimed that he was a truck driver in a construction engineering company where he had worked since 1991. The company was a public owned entity that was privatised in 2004. Following the privatisation, the treatment of workers, including the applicant, deteriorated.
The applicant and some others formed an independent union to negotiate with the owners of the company and when that failed they made a complaint to their local authority. They thought at first that this complaint would have some effect, but it did not [CB 28]-[29]:
“On 18 October 2005, six key members of the union met in my home secretly. We did the preparation for our upgrade appeal. We wrote a new letter and accused F City Council of "no-action". In the evening police broke into my home and arrested all of us. They said they had monitored the union for a long time because the independent worker’s union is outlaws (sic) in China.
We were sent to F National Security Bureau for questioning. Secret police there tortured me both physically and mentally. They forbid me eating food and drinking until I had to admit I planned and organised anti-government crimes which created a great threat to public security and social welfare. I signed the affidavit but I thought it should not be valid because I was forced. I even did not have a chance for fair justice. On 2 November 2005 I was transfer (sic) to F Detention Camp and a camp police stated I was sentenced to 2-year labour reform.
I did not want to spend my life in prison. I contacted my families and asked for help. My wife and my parents gathered all [their] savings and borrowed money from other relatives to rescue me. They spent RMB 150,000 Yuan bribing a high rank official in F government. With his help I had a chance of a 4-month medical release and was released on 5 December 2005. He also suggested me to escape overseas and I thought it would be safe for him if I was out of China.”
The Tribunal considered the applicant's claims and noted that he did not provide details about a number of matters, including what the affidavit said or about any Court case that was conducted leading to his sentence, and expressed concern that there were not sufficient details about how the applicant obtained the money needed to bribe the official nor who the official was. The Tribunal felt that it would need to question the applicant to ascertain the depth of his knowledge of and commitment to the union and would wish to question the applicant on his written claims.
I can see a number of matters that the Tribunal would need to question the applicant about from the decision of the delegate because, for example, at [CB 54] that decision states:
“I find the applicant's claim, that he began working at F No. 2 Construction Company as a truck driver in August 1991, lacks credibility. He states " … because I had some driving skill, I was trained to drive a truck at that time." However, the applicant does not explain how he had gained his driving skills. In addition the applicant was born on 3 November 1975, which means that when he started work as a truck driver (already with ‘some driving skill’) he was still only 15 years old. The applicant does not explain how he obtained a driver's licence; Country Information indicates that the minimum age for a driver's licence for China is 18 years.”
The Act provides that if the Minister is satisfied that a person has fulfilled the requirements for a particular visa he must give the person a visa; equally, if he is not satisfied that the person has fulfilled those requirements he must not give a visa. The Tribunal here made it clear that it was not satisfied that the applicant had fulfilled the requirements for obtaining a protection visa of the class requested.
Given the fact that the applicant did not attend the hearing and the Tribunal was unable to question him on the matters referred to above, the decision is unsurprising. The applicant admits that he had received the invitation to the hearing and tells me today that at the time he was in Canberra and that he had a back problem which prevented him from attending. There is no indication that he ever told the Tribunal that or sought to have the hearing adjourned. Whilst this is unfortunate, it is the fault of the applicant and not of the Tribunal. There is no ground put forward why the Tribunal erred in the exercise of its discretion to deal with the matter under s.426.
In the application filed on 6 October 2006 the applicant states that the decision was an improper exercise of the power conferred by the Act and involved an error of law. I commenced the hearing today by asking the applicant how he felt that the Tribunal had made an error of law in the way in which it came to its decision, but the applicant told me that he was unable to say.
The second matter raised in the application was that the procedures required by the Act and Regulations were not observed. I am not told what procedures the applicant refers to but it seems to me, from a reading of the Tribunal decision, that none stand out as having been missed. The third matter raised by the applicant was that there was no evidence to justify the making of the decision. There was no evidence of any substantive character other than the applicant's statement, and that is why the decision was made.
Finally, the applicant says:
“The Tribunal failed to carry out its decision in a bona fide manner. The Tribunal decision is 7 pages long. The “Findings and Reasons” are contained in 1.5 pages. The RRT misrepresented my evidence.”
It would be a sad day if brevity in decisions founded jurisdictional error. No particulars are provided of the lack of bona fides alleged against this Tribunal and none are immediately apparent.
On 8 March 2007 the applicant filed an amended application. In that document he says:
“I did not receive any letter from legal advisor. There are more evidens to be provided after receiving legal advises [sic].”
The applicant was granted access to legal advice pursuant to the Minister's scheme. The name of the barrister who was asked to provide that advice can be found in the file. The form entitled "Confirmation that advice has been given and tax invoice" is not completed and it is possible that the barrister concerned did not communicate with the applicant or was unable to communicate with the applicant and did not provide the advice. But the provision of legal advice is a privilege not a right. The failure of the system, distressing as it might be, does not found a jurisdictional error on the part of the Tribunal nor should it, in the circumstances of this particular case, commend this Court to grant the applicant an adjournment.
The second matter raised by the applicant was that the decision involved an error of law. I believe I have dealt with this already. The third matter is that the Tribunal ignored the truth that it would be dangerous if the applicant returned to China. The Tribunal did not ignore that matter; it considered it, but was unable to be satisfied that this would occur.
It follows from the above that I am unable to find that there are any grounds upon which the Tribunal made an error of law in the way in which it came to its decision.
The application is dismissed. The applicant shall pay the respondent’s costs assessed in the sum of $3300.00

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 5 December 2007