SZJPZ v Minister for Immigration
[2007] FMCA 274
•28 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJPZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 274 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of the People’s Republic of China – applicant claims to be a Falun Gong practitioner – applicant failed to attend Refugee Review Tribunal – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 426A, 427, 441C, 474, 477 |
| Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NALQ v Minister for Immigration & Multicultural Indigenous Affairs [2004] FCAFC 121 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 |
| Applicant: | SZJPZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3212 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 February 2007 |
| Date of last submission: | 28 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms McWilliam |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the first respondent is changed to Minister for Immigration & Citizenship.
The application is dismissed.
The applicant is to pay the first respondent's costs fixed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3212 of 2006
| SZJPZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 15th September 2006 and it was handed down on 5th October. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection
(class XA) visa. The applicant seeks a review of that decision.
The background to this matter is that the applicant is a citizen of the People's Republic of China. He arrived in Australia on 19th April 2006 and he applied for a protection visa on 8th May. On 3rd June 2006 a delegate of the Minister refused his application for a visa. On 4th July in that year the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. The application gave as the applicant's address for correspondence a mail drop address in Pitt Street, Sydney. The applicant did not provide any other written information with his application.
The Tribunal wrote to the applicant on 28th July 2006. The letter, or at least its relevant parts, informed the applicant that the Tribunal 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. Accordingly, the Tribunal invited the applicant to attend a hearing at
11:00 amon 30th August 2006. The letter contained this warning to the applicant:
Important information about your hearing. The Tribunal will only change this hearing date for good reason. If you think you might be unable to attend the hearing you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing it can make a decision on your case without further notice.
The letter included a response to hearing invitation form and asked the applicant to complete it and to return it to the Tribunal. That form was not returned to the Tribunal.
The next thing that happened was that on 29th August 2006, the day before the hearing, the applicant forwarded a faxed message to the Tribunal. The relevant parts of the message said this:
My boss just told me that I have to go to work tomorrow because he could not find another worker to replace me. He said I will be free next Tuesday. Can I ask you to postpone the hearing to next Tuesday?
The Tribunal replied to the applicant by express post the following day. The letter noted that the Tribunal received the applicant's facsimile request at 4:50 pm the day before. The letter went on to say:
Under s.426A of the Migration Act this Tribunal has the discretion not to grant you another hearing. The Tribunal has considered your request and at this stage is not disposed to grant you another hearing as it appears that you are simply avoiding the hearing for the following reasons: you have not provided any evidence to substantiate your claim, that you are not able to attend the hearing due to last-minute work commitments.
An invitation for the hearing was sent on 28th July 2006 requesting you to advise the Tribunal whether you were coming to the hearing on 15th August 2006. No reply was received from you. You provided the Tribunal with less than 24 hours' notice to postpone the hearing. The hearing was set down for 11:00 am and would have taken no more than two hours, plus travel time. The Tribunal will consider your request for another hearing if you provide the following: information as to the nature of your work, place of work and the days you work, letter from your employer on company letterhead explaining why you were required to work on 30th August 2006 and why you were only advised the day before by your supervisor that you had to work, name and contact details, including telephone number of your supervisor, so that he or she can be contacted by the Tribunal.
The Tribunal did not receive a reply to that letter. The Tribunal went on to deal with the application and the decision was signed on
15th September 2006.
A copy of the Tribunal decision record appears on pages 69 through to 75 of the Court Book. The Tribunal set out the applicant's claims and evidence on pages 72 and 73. The findings and reasons, which are necessarily brief, appear on pages 73 and 74. The Tribunal found that the applicant was a citizen of the People's Republic of China based on the copy of his passport which appeared on the file. The Tribunal noted that the applicant had provided a general statement about the mistreatment of Falun Gong practitioners in China and has asserted that he is one.
The Tribunal said that the applicant had provided only limited details about his practice and has made no claims that any harm had befallen him in China for reasons of his alleged practice of Falun Gong.
The Tribunal said that the applicant has simply asserted that such harm would befall him in the future if he returns. The Tribunal went on to say this:
In short, his application is devoid of details and it lacks substance. The applicant was put on notice in writing by the Tribunal that it was unable to make a decision in his favour of the basis of the material before it. The applicant did not send any materials for his claim[1].
[1] Court Book page 74
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention and affirmed the decision not to grant the applicant a protection visa.
The applicant sought judicial review from this Court by means of an application and an affidavit filed on 2nd November 2006.
The application does not set out any particular orders which the applicant seeks, but I am more than satisfied that the applicant would seek the usual relief by way of orders in the nature of certiorari and mandamus.
I note that he applies for an order that the time for making the application be extended under s.477 of the Migration Act, but it does not appear to me that he requires any order extending the time as his application on its face appears to have been filed with the Court within the time prescribed by s.477.
The applicant sets out one ground, saying:
The RRT decision was affected by jurisdictional error in that the RRT failed to give the applicant an opportunity to appear before the Tribunal.
The particulars of that ground are:
The applicant was asked to attend a hearing on 15th August 2006 but the applicant could not go due to his work commitments.
He asked the Tribunal to postpone the hearing to the next Tuesday. The Tribunal rejected his claim on no reasonable grounds.
There is of course an error in the particulars in that the date of the hearing was not 15th August but 30th August 2006. 15th August was the date by which the Tribunal asked the applicant to complete and return the response to hearing invitation. Nothing turns on that error, in my view.
The applicant has made some submissions or assertions in the affidavit which he filed on 2nd November in support of his application. In that affidavit he says the following:
(1) I would like to apply for judicial review of the RRT's decision on my application for a protection visa because the RRT's decision contains jurisdictional error.
(2) RRT denied me procedural fairness in that it did not give me an opportunity to appear before the Tribunal.
(3) I wish the Court can make an order requiring the RRT to reopen my case.
The applicant has not filed any other documents in these proceedings, but he attends Court and told the Court that he had not attended the hearing because he could not take the day off from his work.
He conceded that he had not told his employer that the hearing before the Tribunal was important.
I have had the benefit of reading through the written submissions prepared on behalf of the first respondent Minister by Ms McWilliam of Counsel. The written outline, a copy of which was translated by the interpreter to the applicant immediately prior to the hearing, is a thorough and comprehensive document that sets out the background and procedural history to the matter and summarises the Tribunal's statement of reasons.
The submission asserts that the nature of the Tribunal's obligation is defined in s.425 of the Migration Act and the letter inviting the applicant to a hearing was sent by post in accordance with s.441C(4) of the Act. Ms McWilliam submits that as the Tribunal had received no response to the letter inviting the applicant to a hearing it was entitled to proceed to make a decision under s.426A of the Act. I should comment, however, that had the applicant actually attended on the date of the hearing, then he should still have been heard.
Ms McWilliam makes the relevant point that the fact that the Tribunal received a request to adjourn the hearing the day before its scheduled date does not alter the fact that the Tribunal complied with its obligation under s.425 of the Act. In my view, that submission is correct.
Counsel for the respondent Minister goes on to submit that the Tribunal has the power to exercise its discretion to adjourn a hearing under both s.426A(2) and s.427(1)(b) of the Act, but is not bound to do so.
She submitted that as the Tribunal had requested substantiation from the applicant for his reason for not attending and did not receive any documentation to that effect, that it was within its rights to hand down its decision in accordance with s.426A of the Act. I am referred to the decisions of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [13] and the decision of the Full Court of the Federal Court in NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [35]. Ms McWilliam also submits that there does not appear to be any other discernible jurisdictional error in the Tribunal's statement of reasons.
I summarised the import of Counsel's submission to the applicant and invited him to reply. He submitted to the Court that he really cannot go back to China. In my view, it is clear that the Tribunal complied with s.425 of the Migration Act by inviting the applicant to attend a hearing and in doing so within the time prescribed. It is not correct for the applicant to say that the Tribunal did not give him an opportunity to appear before the Tribunal. The Tribunal did give the applicant the opportunity to appear. The applicant did not take the opportunity to appear, claiming that he had to work that day.
It is surprising that an applicant would not understand the significance of attending a hearing by the Refugee Review Tribunal. This is an applicant who is seeking protection in Australia. He is claiming to be a refugee. He is claiming that he cannot return to his own country because of a fear that he will be persecuted because of his membership or practice of Falun Gong. When the applicant is given an opportunity to attend before the Refugee Review Tribunal to put his case, he chooses not to attend because he said he cannot get the time off work. It is hardly surprising that the Tribunal approached that request delivered by fax only a few minutes before 5:00 pm the day before the hearing with a considerable degree of scepticism.
The Tribunal asked the applicant to provide some substantiation.
The letter of 30th August, which I have already read onto the record, can be found in full at pp.55 and 56 of the Court Book. In my mind, it was not unreasonable for the Tribunal to tell the applicant of its reluctance to grant him another hearing because of the circumstances of his request for an adjournment. The Tribunal also acted reasonably, in my view, by setting out that it would consider his request for another hearing if he were to provide certain further information about his work and some substantiation from his employer confirming that he was required to work on the day of the hearing and was only advised the day before.
This material was not provided to the Tribunal. In my view, the Tribunal's request for further information was a reasonable request and made the situation quite clear to the applicant. The applicant had already been placed on notice by the Tribunal s.425 letter of 28th July that the Tribunal would only change the hearing date for good reason. I have been referred, as I indicated earlier, to two decisions of the Full Court of the Federal Court of Australia. The earlier of the two,
NALQ(supra), is an appeal from a Federal Magistrate. At paragraph 35 of the decision their Honours Ryan, French and Nicholson JJ say:
The Tribunal, having made the reasonable requirement that some evidence be produced to support the request for an adjournment, did not render the s.425 invitation illusory by proceeding to the hearing on the appointed day in the absence of the appellant.
Their Honours went on to say later in that same paragraph:
Nothing in the Tribunal's approach reflected a failure to provide a real opportunity to the appellant to be heard. There was nothing in its approach to this matter therefore that was in breach of s.425 however construed nor was there any procedural unfairness on the part of the Tribunal.
In VSAF of 2003 (supra) the Full Court of the Federal Court comprising their Honours the Chief Justice and Sundberg and Bennett JJ at paragraph 13 of the decision referred with approval to the decision in NALQ and quoted a part of paragraph 35 which I have already read out.
It needs hardly be mentioned that the decisions of the Full Court in NALQ and VSAF of 2003 are binding on this Court and I propose to follow them.
The Tribunal decision itself refers to the paucity of the information provided by the applicant about his claims to have been a Falun Gong practitioner in China. The Tribunal noted at p.74 of the Court Book that the applicant had made no claims that any harm had befallen him in China because of his claimed practice of Falun Gong. He had simply asserted that such harm would befall him in the future if he were to return. The Tribunal's description of the applicant's application as being devoid of details and lacking in substance appears to me to be an accurate description.
It is noteworthy that not only did the applicant not attend the hearing, the Tribunal pointed out, again at p.74, that the applicant did not send any material to support his claim. The letter to the applicant of
28th July 2006, which is the Tribunal's standard form s.425 letter, asked the applicant to provide any further documents, saying – and a copy of this appears on p.53 of the Court Book –
Send us any new documents or written arguments you want the Tribunal to consider. Please note any documents or arguments you send should be in English or translated by a qualified translator.
In my view, the Tribunal has correctly identified the other option that is available to an applicant in having a decision considered. The Tribunal does not just invite the applicant to attend a hearing; the Tribunal invites the applicant to provide further written information. It is open to the applicant to take either of those steps or both of them.
The applicant in this case had been made aware that the information that he had provided to the Tribunal was insufficient to allow the Tribunal to make a decision in his favour. He neither attended the Tribunal, nor provided any further information. The Tribunal correctly identified that failing. It is hardly surprising in the circumstances that the Tribunal affirmed the delegate's decision.
This matter has been the subject of consideration by the Federal Court in a number of matters including SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306, also SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811, particularly at [16] and [17], and also NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287.
I am mindful of the fact that the applicant is not legally represented in these proceedings. The only ground provided in his application has not been substantiated. There is no breach of s.425 or s.426A of the Migration Act. I have read the Tribunal's decision and supporting material with a view to ascertaining whether or not there is any arguable case for any other jurisdictional error. I note that Ms McWilliam of Counsel at paragraph 17 of her written submissions submits that there does not appear to be any other discernible jurisdictional error in the Tribunal's statement of reasons. With respect, I agree with that submission. There is certainly no breach of s.424A of the Migration Act. The Tribunal did not rely on any information to affirm the delegate's decision. The Tribunal did not have any information that would allow it to be satisfied that the application should succeed.
On the basis of the paucity of the material before the Tribunal, it appears to me that the Tribunal had no choice but to refuse the application. There is no jurisdictional error. The Tribunal's decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act and under the provisions of s.474(1) of that Act, the decision is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account. It follows that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $3,500.00. The first thing that a Court must do in considering a costs application is consider whether it is appropriate to make an order for costs. Once the Court has decided that question in the affirmative, then, and only then, should the Court consider the quantum of costs? In my view, this is an appropriate matter for an order for costs. The applicant has been wholly unsuccessful in his claim and there is no reason why the successful first respondent should not be entitled to a costs order.
The amount sought, $3,500.00, which is inclusive of Counsel's fees, is, as I have already commented, a modest sum. It is well within the scope provided by the Rules and this is a matter where I can indicate that I found Counsel's submissions to be most helpful. I propose to order that the applicant pay the Minister's costs in the sum of $3,500.00.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 March 2007
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