SZJQB v Minister for Immigration - [2007] FMCA 1193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQB v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1193

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – failure of applicant to appear before Refugee Review Tribunal – whether the Refugee Review Tribunal complied with its statutory obligations under ss.425 and 425A of the Act – applicant nominated authorised recipient.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 91S; 425; 425A; 426A; 441A(5)(a); 441C(5); 441G(1); 441G(2); 474; pt.8 div.2
Migration Regulations 1996 (Cth), reg.4.35D

Applicant:

SZJQB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3217 of 2006

Judgment of:

Emmett FM

Hearing date:

23 July 2007

Date of last submission:

23 July 2007

Delivered at:

Sydney

Delivered on:

24 July 2007

REPRESENTATION

Applicant appearing on his own behalf

Solicitors for the Respondent:

Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3217 of 2006

SZJQB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 September 2006 and handed down on 3 October 2006.
The Applicant was born on 22 May 1969 and claims to be from the People’s Republic of China (“the PRC”) and President of the “China and Taiwan Peace Association” and of Christian faith (“the Applicant”).
On 15 April 2006, the Applicant arrived in Australia, having legally departed from the PRC on a passport issued in his own name and a subclass 456 (Temporary Business) visa.
On 15 May 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs under the Act.
In his protection visa application, the Applicant claimed that he feared persecution because of his affiliation with the association “China and Taiwan Peace Association” and as a result of his actions in arguing and campaigning for acceptance of Taiwan. In December 2004 the Applicant claimed that he was detained for 3 months after being questioned and charged by police. One year of his sentence was suspended on account of his young daughter.
On 10 July 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 8 August 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 21 September 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 3 November 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

On 28 August 2006, the Tribunal invited the Applicant to come to a hearing on 13 September 2006. The Applicant did not attend that hearing or provide any further documents.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“The Tribunal noted that the applicant’s claims were unsubstantiated and it was not prepared to accept them in the absence of oral evidence from the applicant. In view of the limited evidence before it, the Tribunal found that it could not be satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention (CB 66.8).”

The proceeding before this Court

The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that he relied upon the grounds identified by him in the application filed on 3 November 2006.
The grounds of the application are expressed to be as follows:
“RRT has made a jurisdictional error by not giving me a hearing. The RRT has not sent me any letter nor any fax to my authorised representative. No phone has been made by RRT to the numbers given to RRT.”
The Applicant stated that he did not receive an invitation to come to a hearing before the Tribunal and that he relied entirely upon his migration agent.
In his application for review filed with the Tribunal on 8 August 2006 the Applicant nominated an authorised recipient with a post office box address and a fax number. The Applicant confirmed that the signature on the application was his, although the form was completed by his agent.
On 28 August 2006, the Tribunal sent an invitation to the facsimile number provided in the application form to the Applicant’s authorised recipient. The facsimile stated that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in the Applicant’s favour on this information alone. The facsimile went on to invite the Applicant to come to a hearing on

13 December 2006 and informed the Applicant that if he thought he may be unable to attend the hearing he must contact the Tribunal immediately, because if he did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice. The facsimile provided a “Response to Hearing Invitation” form and requested the Applicant to complete and return that form to the Tribunal by 4 September 2006. The facsimile also invited the Applicant to send to the Tribunal any new documents or written arguments it wished the Tribunal to consider.
The Tribunal’s checklist prepared prior to the hearing on 6 September 2006, being part of the Court Book marked Exhibit 1R, disclosed that there had been no response to the Tribunal’s invitation. A case note in Exhibit 1R made on 12 September 2006 stated the following:
“The applicant has not responded to the hearing invitation faxed to his A/R on 28 August 2006 (Fax no. 02 9747 4987). The member requested I call the A/R and make enquiries as to whether or not they planned to attend the hearing. I called the A/R on 0423 942 154 and was advised that the number dialled had been disconnected. I attempted to ring the applicant on the phone number provided 02 9747 4987; however the phone rang out on several occasions. I noted that the phone number of the applicant on the application form is put down as being the same number of the A/R’s fax. In addition the A/R’s mobile and the applicant’s mobile are noted as being the same.”
In deciding to proceed to make its decision without taking any further action to enable the Applicant to appear before it, the Tribunal noted the terms of its facsimile to the Applicant dated 28 August 2006 inviting the Applicant to come to a hearing on 13 September 2006. The Tribunal noted the invitation was faxed to the Applicant’s authorised recipient. The Tribunal also noted the attempt to contact the authorised recipient in accordance with the file note referred to in paragraph 23 above in these Reasons. The Tribunal also noted the attempt to contact the Applicant on the telephone number provided in the application, however, there was no answer. The Tribunal noted that the mobile telephone number provided for both the Applicant and his authorised recipient was the same and that the Applicant’s landline was the same as the authorised recipient’s facsimile number. The Tribunal proceeded to exercise its discretion pursuant to s.426A of the Act to proceed to make its decision on the review without taking any further step to enable the Applicant to appear before it.
There is no evidence before this Court to suggest that the invitation faxed by the Tribunal on 28 August 2006 was sent other than in accordance with the statutory regime.
Section 441A(5)(a) of the Act allows for the invitation to be sent to the Applicant’s last fax number provided to the Tribunal by the authorised recipient. Section 441C(5) of the Act provides that, where the invitation is sent in accordance with s.441A(5)(a) of the Act, the person is taken to have received that document at the end of the day in which the document is transmitted by fax.
Section 441G(1) of the Act provides that if an Applicant identifies an authorised recipient then the Tribunal must give the authorised recipient any document it would have otherwise given to the Applicant. Section 441G(2) deems that any document given to the authorised recipient in accordance with s.441G(1) of the Act is given to the Applicant.
The invitation date 28 August 2006 provided a period of notice to the Applicant of his hearing that was at least the prescribed period of 14 days provided by for regulation 4.35D of the Migration Regulations 1996 (Cth).
In the circumstances, the faxed invitation dated 28 August 2006 complied with the statutory requirements of ss.425 and 425A of the Act. Accordingly it was open to the Tribunal to exercise its discretion pursuant to section 426A of the Act to proceed to make its decision on the review without taking any further actin to enable the Applicant to appear before it.
In accordance with Exhibit 1R, it is clear that the Tribunal faxed the invitation to the Applicant’s authorised recipient and also attempted to contact by telephone both the authorised recipient and the Applicant. The Tribunal file note disclosed that the authorised recipient’s mobile was disconnected and the Applicant’s telephone number “rang out on several occasions”.
Accordingly the ground referred to by the Applicant in the application filed 3 November 2006 is not made out.
Otherwise, the Tribunal considered the claims made by the Applicant in support of his protection visa application. No other material was provided to the Tribunal. The Tribunal accepted that the Applicant is a national of the PRC. However, the Tribunal noted there was no documentary evidence in support of the Applicant’s claims beyond his own written statement. The Tribunal noted that it was unable to ask the Applicant questions about his claims, particularly where he had provided no evidence of the association he claimed to have founded. The Tribunal noted that because the Applicant did not attend the hearing his claims remained “unclarified and questions unanswered”.
The Tribunal concluded on the evidence before it that it was not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention if he were to return to the PRC in the foreseeable future. That conclusion was open to the Tribunal on the material before it and for which it provided reasons. It is for the Applicant to satisfy the Tribunal that he meets the criteria set out in s.32 for a protection Visa. If the Tribunal is not so satisfied then s.65(1)(b) of the Act mandates that the decision maker, in this case, the Tribunal, must refuse the visa.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 3 November 2006, is dismissed with costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 23 July 2007