SZJXG v Minister for Immigration - [2007] FMCA 642

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJXG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 642

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 Republic of Korea claiming fear of persecution for reasons of his political opinion – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 425, 426A, 474

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811
SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 251
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134

Applicant:

SZJXG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3851 of 2006

Judgment of:

Scarlett FM

Hearing date:

11 April 2007

Date of Last Submission:

11 April 2007

Delivered at:

Sydney

Delivered on:

11 April 2007

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondents:

Mr Mitchell

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,000.00 and I will allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3851 of 2006

SZJXG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 15^th November and handed down on 5^th December 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection

(Class XA) visa.
The applicant seeks orders setting aside the Tribunal decision and remitting his application to the Tribunal for reconsideration.

The applicant also seeks an order directed to the delegate's decision but that is not a matter with which the Court has power to deal.
The background to this matter is that the applicant is a citizen of the Republic of Korea. He arrived in Australia on 3^rd May 2006.

He applied for a protection (Class XA) visa on 7^th June 2006.

A delegate of the Minister refused his application on 25^th August 2006 and on 15^th September in that year he applied to the Refugee Review Tribunal for a review of the delegate's decision.
His claim is that he is a former member of a workers union who was seriously hurt by his employer and by the Korean government because of his fight for workers' rights. He claimed to have been threatened and attacked by gangsters in December 2004 and in February 2006.
The applicant's application was not accompanied by any other document. He did not claim to be represented by any migration agent and gave as his address for correspondence a residential address in a south western suburb of Sydney. The Tribunal wrote to the applicant on 15^th September, the day it received his application, at that address. That letter acknowledged receipt of his application and advised him that he may be invited to attend a hearing of the Tribunal.
On 25^th September 2006 the Tribunal wrote to the applicant at that same address inviting him to attend a hearing on 31^st October 2006. On 31^st October the Tribunal received by fax a notice of change of contact details. A copy of that document appears on page 50 of the Court Book.
The new address given for the applicant was a post office box in a northern suburb of Sydney. The Tribunal wrote to the applicant that same day at that post office box number saying relevantly as follows:
The Tribunal sent you a letter to your nominated address for service on 25^th September 2006 inviting you to attend a scheduled hearing on Tuesday 31^st October 2006 at 1 pm. You did not attend the Tribunal for this hearing. The Tribunal received a change of contacts details form from you on 31^st October 2006. The Tribunal has scheduled another hearing and you are now invited to come to give oral evidence and present arguments in support of your claims.
The letter advised the applicant that his new hearing was scheduled for 1:00pm pm on 14^th November 2006. The applicant did not attend that hearing. The Tribunal proceeded to exercise its power under s.426A of the Migration Act to make its decision on the review without taking any further action to enable the applicant to appear before it. A copy of the Tribunal's decision record can be found at pages 57-63 of the Court Book.
The Tribunal considered the applicant's claims and evidence on pages 60 and 61 of the Court Book. The Tribunal noted that in his application for review to the Tribunal the applicant submitted no additional information. The Tribunal's findings and reasons can be found on pages 61-63 of the Court Book.
On the basis of the evidence including the applicant's passport, the Tribunal accepted that the applicant is a national of Korea.

The Tribunal went onto note that the applicant had set out fairly detailed claims of harm but noted that there had been no opportunity for the Tribunal to test those claims by asking the applicant questions at a hearing. The Tribunal went onto say this:
A number of questions therefore remain unanswered and the claims have not in the Tribunal's view been made out.

For example, the most serious claim of harm relates to an incident in 2006 when he was beaten and threatened by four strangers, even though his alleged union activity which he implies was the reason for this attack appears to have concluded in August 2004 and there would appear to have been no reason for him to be pursued two years later.[1]
[1] See Court Book at 61-62
The Tribunal was not satisfied that the applicant had suffered persecution in the past or that he had a well founded fear of persecution within the meaning of the convention if he were to return to Korea in the foreseeable future. Accordingly, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.
The applicant commenced proceedings for judicial review of the Tribunal decision by filing an application and an affidavit in support on 21^st December 2006. The applicant filed an amended application on 27^th March 2007. In the amended application he sets out three grounds for review. Those grounds are as follows:
a)The Tribunal failed to review the applicant's application.
b)The RRT made jurisdictional errors regarding this case.
c)I have not received my green book and am awaiting legal advice.
The applicant attended Court on the hearing and, after a preliminary matter where it was necessary to ascertain the applicant's identity, the hearing proceeded. I am satisfied that the person who appears before me today is the applicant in these proceedings although some confusion arose in that a citizen of the Republic of Korea sought an interpreter in the Mandarin language. The applicant has however produced identification by means of a bankcard and I am satisfied that he is the applicant in these proceedings.
The applicant claimed in an oral submission to the Court that the Tribunal fell into error by not giving him sufficient notice of the Tribunal hearing. He told the Court that the time was too short being only 14 days. He said that he was not in Sydney at the time. He told the Court that he was somewhere in Canberra and the time was too short for him to travel to Sydney for the hearing. It was put to him that the distance from Canberra to Sydney was not great and that a person would normally be able to travel from Canberra to Sydney within 14 days. The applicant explained that he had an injury and it was not easy for him to walk. No further submissions were made.
I have read the written submissions prepared by counsel for the respondent Minister, Mr Mitchell. Those submissions are detailed and comprehensive and in my view contain an accurate of the summary of the facts of the matter and set out the law to be applied.
On considering the Tribunal decision it is clear that the Tribunal was satisfied that the evidence before it was insufficient to enable the Tribunal to reach the required state of satisfaction that the applicant met the criterion set out in sub-s.36(2) of the Migration Act for a protection visa. It will be recalled that under s.425 of the Migration Act the Tribunal has an obligation to invite the applicant to attend a hearing if the Tribunal is unable to make a decision in the applicant's favour on the information that it has before it.
The Tribunal's letter to the applicant of 31^st October in fact said so:
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.
As is so often the case where an applicant does not attend the Tribunal hearing the Tribunal finds itself in a position in the absence of further information that it cannot grant the application. This situation has been discussed in many cases including SZDXC v Minster for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306, SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 and NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287.
In my view the Tribunal complied with the requirements of ss.425 and 425A when it invited the applicant to a hearing. The Tribunal wrote to the applicant on 25^th September 2006 inviting him to attend a hearing on 31^st October. The period of notice given was more than that prescribed by reg.4.35D which requires 14 days of notice after the date of receipt which is deemed to be seven working days after the date of the information. I am satisfied that the Tribunal complied with s.425A and therefore complied with s.425.
I am referred by counsel for the Minister to VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 at [14] which is a decision of the Full Court of the Federal Court of Australia and is of course binding on this Court. The Tribunal had no further obligations in respect of procedural fairness of common law in respect of the invitation and it was entitled to make its decision under s.426A when the applicant did not attend.
The Tribunal exercised its discretion to send a second invitation to the applicant once it had received the notice of change of contact details. It is well established that the prescribed period of notice does not apply for the further invitation. See SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] 144 FCR 251 at [29].
In that case Conti J said:
In my opinion in circumstances where the Tribunal decides to re-schedule a contemplated hearing at the behest explicitly or implicitly of an applicant, s.425A does not apply in relation to the notice of a re-scheduled hearing at least insofar as concerns the period of the reviewed notice.
The decision in SZDQO (supra) is a decision on appeal from this Court and I am bound to follow it. I am satisfied that the applicant's claim that he received insufficient notice of the re-scheduled hearing has not been made out.
The Tribunal did review the applicant's application. The Tribunal was not satisfied about the applicant's claims due to the porosity of information before the Tribunal. In that circumstance the Tribunal was required to affirm the decision under review. I refer to SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15].
I should remark in passing that an applicant cannot be heard to complain when the Tribunal advises the applicant of a hearing at the address for correspondence given by the applicant. The fact that an applicant chooses to absent himself from that address is entirely a matter for the applicant and cannot lead to a finding of jurisdictional error on the part of the Tribunal. There is no jurisdictional error that I can discern.
I am mindful of the fact that the applicant is not legally represented. He claimed at the hearing not to have received a copy of the respondent Minister's outline of submissions which I am told was forwarded to him at his address for service. A further copy was provided to him and translated by the interpreter. I have read through the decision and the supporting material mindful of the fact that the applicant is not legally represented. I cannot discern any arguable case for a jurisdictional error and I am satisfied that there is none. In the absence of jurisdictional error the Tribunal's decision is a privative clause decision as defined by sub-s.2 of s.474 of the Migration Act. A privative clause decision is final and conclusive and is not subject to orders in the nature of certiorari or mandamus. The application will be dismissed.
There is an application for costs on behalf of the respondent Minister in the sum of $4,000.00. The applicant says he does not have the funds available to meet that order. That is not a reason for the Court not to make an order for costs in favour of a successful party. The amount of $4,000.00 which is sought is well within the scale of costs provided by the Curt rules. I propose to order that the applicant is to pay the first respondent's costs in the sum of $4,000.00 but I will take into account what he says about his financial situation and allow four months to pay.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 27 April 2007