SZJXS v Minister for Immigration & Anor

Case •

[2007] FMCA 1749

•

3 October 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJXS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1749

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa to the applicant – where applicant did not attend Refugee Review Tribunal hearing – where applicant claimed not to have been advised in writing of the Tribunal hearing – no error found.

PRACTICE & PROCEDURE – Judgment – set aside judgment.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A(4), 441C(4), 474(2)
Migration Regulations 1994 reg.4.35D
Federal Magistrates Court Rules 2001 r.13.03A, 16.05
NABK v Minster for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
SBSC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 77
Applicant: SZJXS
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3895 of 2006
Judgment of: Scarlett FM
Hearing date: 3 October 2007
Date of Last Submission: 3 October 2007
Delivered at: Sydney
Delivered on: 3 October 2007

REPRESENTATION

The Applicant: Appeared in person
Solicitors for the Applicant: Nil
Solicitors for the Respondents: Ms McDonald
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. Order 1 made on 19 July 2007 is set aside.

  2. The application filed on 22 December 2006 is listed for final hearing today.

  3. The application is dismissed.

  4. The applicant is to pay the first respondent’s costs fixed in the sum of $800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3895 of 2006

SZJXS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. The path that this application has taken to reach finality is slightly unusual. The applicant originally applied to the Court on


    22nd December 2006 for judicial review of a decision of the Refugee Review Tribunal. The application was initially listed for final hearing on 7th August 2007. Due to unavailability of the Federal Magistrate before whom the matter was scheduled to be heard at that time, arrangements were made to bring the matter forward to 19th July.

  2. Whilst the Court records show that both parties were informed, and indeed the lawyers for the Minister appeared on 19th July, the applicant did not appear. The Court dismissed the application under the provisions of r.13.03A of the Federal Magistrates Court Rules.


    The applicant appeared at Court on the original hearing date, 7th August 2007, only to find that his matter had been dealt with previously.


    He immediately made application under the provisions of r.16.05 to have the decision of 19th July 2007 set aside. That application was listed before me for hearing today.

  3. In the circumstances I took the decision to grant the application to set aside the earlier judgment and on ascertaining the parties were in a position to deal with the substantive application to finality today listed the application for review final hearing and heard submissions from the parties. Now is time to hand down a judgment.

  4. The applicant asks the Court to remit his application for review of the decision of the delegate refusing him a protection visa to the Refugee Review Tribunal. He claims that he never received advice from the Tribunal inviting him to a hearing and the Tribunal decision was based on a lack of information and that he was not offered a fair assessment of his case.

  5. The background to this matter is that the applicant is a citizen of the People's Republic of China. He arrived in Australia on 10th June 2006 and applied for a protection (Class XA) visa on 26th June 2006.


    His application for a visa was refused on 23rd August 2006. So the applicant then on 29th September in that year applied to the Refugee Review Tribunal for a review of the delegate's decision.


    The application to the Tribunal was not accompanied by any other document. In the application the applicant gave his residential address and a post office box number at a suburban post office and his postal address. He still has that postal address today.

  6. The Tribunal wrote to the applicant at the postal address on 3rd October 2006 acknowledging his application. The Tribunal wrote again on


    6th October 2006 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 attend a hearing on 2nd November 2006. The Tribunal did not receive any response to that hearing invitation and the applicant did not attend the Tribunal at the time on the day when the application was listed for hearing. The Tribunal noted that fact and made the decision to proceed to decide on the review without taking any further action to enable the applicant to appear before it under s.426A of the Migration Act. The Tribunal signed its decision that same day and handed its decision down on 28th November 2006.

  7. A copy of the Tribunal decision record can be found in the Court Book at pages 65 through to 70. In its decision the Tribunal noted that the applicant came to Australia to seek protection because he feared persecution if he returned to China because of his involvement in an underground church. He claimed to have experienced inhuman treatment in China. He claimed to have been illegally detained for 14 days in September 2004 and escaped from China under the fear of being arrested again. The Tribunal in its findings and reasons pointed out that the applicant had been put on notice that the Tribunal was unable to make a favourable decision on the information before it and had not provided any further information in support of his claims despite ample opportunity to do so. The Tribunal noted that the applicant did not give the Tribunal the opportunity to explore aspects of his claims and a number of relevant questions were unanswered.

  8. The Tribunal set out that it would like to have asked him about certain matters, including:

    For example, I would have wanted to satisfy myself that the applicant is indeed, as claimed, a Christian.  I would have wanted to obtain more information about the consequences for him of the treatment he received as a result of his claimed membership of an underground church.  I would have wanted to inquire as to what happened to him between his claimed detention in 2004 and his departure for Australia two years later in 2006.[1]

    [1] See Court Book at 69

  9. The Tribunal noted that because it was unable to inquire into those matters it was not satisfied that the applicant was a Christian of any kind or that he had been detained for that or any other reason or that he was beaten or that there was a real chance of such things happening to him if he should return to China in the foreseeable future.

  10. Accordingly, the Tribunal did not accept that there was a real chance of the applicant suffering harm amounting to persecution in China for reasons of his religion or his real or imputed political opinion or for any other Convention reason and found that the applicant did not have a well-founded fear of persecution in China for a Convention reason. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.

  11. The Tribunal's decision was handed down on 28th November 2006 and a copy was forwarded to the applicant at his same postal address.


    The applicant told the Court that he had received that letter but none of the others. The applicant then applied to the Federal Magistrates Court for review of the Tribunal decision and the application has been considered on its merits today.

  12. The grounds given by the applicant in his application were that he had never received the notice or acknowledgment letter from the RRT or any other letters regarding his review application, that the only letter he received from the RRT was the final decision. He said he was supposed to have a hearing, but he never received any notice. He also claimed that he was not offered a fair assessment of his application which meant that it was made on a lack of good grounds and he is entitled to seek a review of that decision.

  13. The applicant told the Court that he had not received those letters even though he still retained the same post office box. When asked if he could give an explanation he said that it was probably due to a friend of his who is a gambler and he speculated that person might have taken away his letters, but he did not have any evidence of that fact.


    He indicated that he would have allowed that person access to his post office box to take letters. The applicant claimed that he did not think it was fair that the Tribunal did not give him an opportunity to submit his claims by way of a hearing and asked the Court to remit his application to the Refugee Review Tribunal for reconsideration on humanitarian grounds.

  14. I explained to the applicant that was not possible. The Court is given limited powers under the Migration Act and that the Court could only set aside a decision of the Refugee Review Tribunal if it was satisfied that the decision was affected by jurisdictional error.

  15. The respondent Minister, Ms McDonald, solicitor, relied on a written outline of submissions that had been prepared at the previous hearing, but also read an affidavit of Jonathon Willoughby-Thomas sworn on 13th July 2007. Mr Willoughby-Thomas is the District Registrar of the Refugee Review Tribunal and set out in his affidavit his knowledge of the Tribunal's usual procedure in respect of sending s.425 letters. Those are the letters of invitation to a hearing. He annexed to his affidavit a copy of the front cover of the Tribunal file, a copy of the applicant's application for review, a copy of the s.425 letter sent to the applicant and dated 6th October 2006, and a printout of the hearing screen from the Tribunal's electronic case management system in respect of the applicant's file. The attached printout shows the date of the hearing invitation letter and the date of despatch of the letter. It can be seen from the printout at annexure D that the letter was despatched on the same day, 6th October 2006.

  16. Mr Willoughby-Thomas deposed that based on the information from the Tribunal's file and the case management system, that he believed that on 6th October 2006 the Tribunal prepared a letter inviting the applicant to a hearing on 2nd November. That letter was despatched by ordinary prepaid post on 6th October 2006 to the applicant's postal address.

  17. It is unfortunate that the applicant did not attend the hearing. It is clear that the reason why the Tribunal did not grant the application for review was due to the inadequacy of evidence before it. This was brought about by the fact that the applicant neither attended the hearing, nor submitted any additional written evidence. The Tribunal clearly considered the material before it, which was essentially the applicant's statement accompanying his application for a protection visa. It is hardly surprising that the information was not sufficient for the Tribunal to be satisfied. The Tribunal had in fact sought to inform the applicant of the fact in its letter inviting the applicant to a hearing.

  18. There is no jurisdictional error because the applicant failed to receive the notice of invitation to hearing (see NABK v Minister for Immigration & Multicultural & Indigenous Affairs[2]). The fact that the invitation was not received is of no legal significance (see SBSC v Minister for Immigration & Multicultural Affairs[3]). The Tribunal invited the applicant to a hearing, as it was required to do under s.425 of the Act. The Tribunal complied with the requirements of s.425A in that the invitation gave the applicant notice of the date, time and place of the hearing, contained a statement about the effect of s.426A and gave the applicant sufficient notice, and in fact more than was prescribed by reg.4.35D. The invitation was dispatched to the applicant's last address for service which is the postal address the applicant uses today.

    [2] [2002] FCAFC 184 at [16]

    [3] [2006] FCAFC 77 at [16]

  19. I am satisfied that the Tribunal complied with s.425A and s.425 of the Act. I am satisfied that the Tribunal exercised its discretion under s.426A of the Migration Act accordingly. The Tribunal had no other means of contacting the applicant other than his address. No telephone number was provided. The Tribunal clearly complied with the requirement of s.441A(4) of the Act and dispatched the invitation within three working days. Section 441C(4) deems the applicant to have received the letter seven days after.

  20. The Tribunal considered what information there was, but, as so often happens in the case that an applicant does not attend the hearing, the Tribunal was not satisfied that the applicant met the requirements for a protection visa and affirmed the decision of the delegate not to grant a visa.

  21. I am mindful of the fact that the applicant is not legally represented.


    I have looked independently at the Tribunal decision and supporting information and I am unable to discern any arguable case of jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. Consequently, it is not subject to orders in the nature of certiorari or mandamus or prohibition. It follows that the application will be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  17 October 2007


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

1

SZJXS v Minister for Immigration and Citizenship [2008] FCA 409