SZKAF v Minister for Immigration

Case •

[2007] FMCA 2092

•

10 December 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKAF v MINISTER FOR IMMIGRATION [2007] FMCA 2092
MIGRATION – Review of decision of the Refugee Review Tribunal – no appearance before the Tribunal – Tribunal complied with statutory requirements of notice – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.36(2), 65, 422B, 425A, 426, 441A(4), 441C(4)
Migration Regulations 1994 (Cth), reg.4.35D
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16]
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5]
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZEZI v Minister for Immigration and Multicultural Affairs [2005] FCA 1195
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
Applicant: SZKAF
Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
File number: SYG 83 of 2007
Judgment of: Nicholls FM
Hearing date: 10 December 2007
Date of last submission: 10 December 2007
Delivered at: Sydney
Delivered on: 10 December 2007

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Appearance for the Respondents: Mr Moloney
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

  2. The application made on the 10 January 2007 is dismissed.

  3. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 83 of 2007

SZKAF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

  1. This is an application made under the Migration Act1958 (Cth) (“the Act”) on 10 January 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 24 November 2006 and notified to the applicant on 14 December 2006, which affirmed the decision of a delegate of the first respondent to refuse to grant a protection visa to the applicant.

Background

  1. The Minister has filed in this matter a bundle of relevant documents which I will refer to as the Court Book (“CB”).  The applicant is a citizen of the People’s Republic of China who arrived in Australia on 16 July 2006 and applied for a protection visa on 11 August 2006 (reproduced at CB 1 to CB 28, with annexures).  On 30 August 2006, a delegate of the respondent Minister refused to grant a protection visa, and on 26 September 2006 the applicant applied to the Tribunal for review (CB 39 to CB 42).

Applicant’s claims to protection

  1. The applicant’s claims to protection in Australia are set out relevantly in answers to questions in her protection visa application and in particular at CB 18 to CB 21.  The claims as set out are that the applicant was a practitioner of Falun Gong, she came to the attention of police and she was taken to a police station where she was asked to cease practising Falun Gong.  Following her claimed refusal to do so, she claimed that she received bad treatment at the police station where she was detained for two months. 

  2. The applicant claimed that following her release she was warned that if she did not cease practising she would be imprisoned.  The applicant’s fears are that if she were to return to China she would be taken to a police station and would be slapped on her face and legs, as she claimed had happened to others from her village.

The Tribunal

  1. Following receipt of the application for review, the Tribunal wrote to the applicant by letter dated 26 September 2006 and said to have been sent by post to the applicant (CB 43 to CB 44), and in that letter the Tribunal set out the process by which it was going to conduct the review.  In particular, that letter set out the importance of a hearing because it was described as the opportunity to give the Tribunal evidence in support of the application.

  2. By letter dated 17 October 2006 the applicant was given notice by the Tribunal that on the material before it, the Tribunal could not make a decision in her favour, and accordingly she was invited to attend a hearing which was scheduled for 15 November 2006.  I note from the material (CB 47), and from the Tribunal’s own decision record, but also with reference to the application for review, that the letter was sent to the applicant’s last notified residential address and address for correspondence, which were one and the same.

  3. The Tribunal stated that it received no response to the letter, nor was the letter returned unclaimed.  The applicant did not attend the hearing before the Tribunal on the date and the place that had been scheduled for it, nor did the Tribunal receive any communication from the applicant in the nature of any application for a postponement or even explanation for her failure to attend.

  4. In those circumstances, the Tribunal stated that it proceeded to make a decision without taking further action to enable the applicant to appear before it.  Any plain reading of the Tribunal’s decision record reveals that the Tribunal found the applicant’s claims to be general and lacking in detail and clarity. The Tribunal noted that the applicant had provided no material details such as how and when she started practising Falun Gong.

  5. The Tribunal found that given this lack of detail in the applicant’s application, and that the applicant had not taken the opportunity of appearing before the Tribunal, it was not able to be satisfied that the applicant was a Falun Gong practitioner either in China or Australia. Nor was the Tribunal satisfied that the applicant had ever been detained, nor that the authorities in China suspected her of being a Falun Gong practitioner.

  6. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution for a Refugees Convention reason were she to return to China. It therefore affirmed the decision that was the subject of the review. 

Application to the Court

  1. In her application to the Court, the applicant puts forward the following as grounds of the application:

    “1.I am a Falun Gong member.  I arrived in Australia with a Chinese passport.  But it was very difficult to get this passport and leave China.  Falun Gong members helped me and I also borrowed money from my friends.  I spent money RMB 100,000 to get this Chinese passport.  If I did not pay the money to the officer of China I could not get this passport.

    2.I did not attend the RRT hearing on 15 November 2006. Because I did not read and write English.  I just kept the letter from the RRT.  I did not know how to talk and give new documents to the RRT so I lost the chance to give evidence at the RRT hearing.

    3.So I think the RRT decision’s is unfair.”

    [Errors in original]

Hearing before the Court

  1. When this matter was called on 24 October 2007, on which date it had originally been set down for hearing, the applicant did not appear.  It subsequently transpired, following the provision of a medical certificate from a medical practitioner, that the applicant had been hospitalised following a car accident and on medical advice, was to be hospitalised for between six to eight weeks.  The matter was therefore adjourned for hearing today, that is 10 December 2007.  

  2. At the hearing today the applicant appeared in person.  She was assisted by an interpreter in the Mandarin language. Mr S Moloney appeared for the first respondent.

  3. The applicant confirmed that she was ready to proceed with the hearing today and asked the Court to consider the following:

    1)That she had not been able to organise materials to provide to the Tribunal because she had only been in Australia for a short time, but that she had been a Falun Gong victim in China.

    2)That in November 2002, a niece went to Beijing to attend a demonstration and that while there jumped from a building and committed suicide, or rather that is what they had been told.  That she did not say anything about her death because of her fear of security authorities in China but that when her husband died she decided to leave China, and she came to Australia with her son because in Australia there is a belief in human rights.

    3)She emphasised that she did not know much about process in Australia and could not obtain documents.  The applicant recounted that she had been involved in a car accident.

    4)When the Court put to the applicant that she had not attended the hearing before the Tribunal, the applicant responded that it was very hard to find a job and that she was sick at the time with a very high temperature. 

    5)That now that she is severely injured she cannot go back to China. 

  4. I note also that I have before me today the respondent’s outline of submissions and I did have regard to those submissions in addition to the other material that was put before the Court. 

Consideration

  1. Turning firstly to the process relating to the invitation to the hearing before the Tribunal.  As noted above, that letter (reproduced at CB 45) reveals that it is dated 17 October 2006 and it states that it was sent by post and it notified a date scheduled for the hearing as 15 November 2006.

  2. While there is no additional evidence before the Court relating to the actual posting of the letter, I am satisfied in the circumstances by what appears on the face of the letter and indeed the applicant’s statement both in her protection visa application and before the Court today, that she did receive the letter. I am satisfied that the letter was sent pursuant to s.441A(4), within three working days of the date of the letter, and was sent to the applicant’s residential address which was also the address for service. Pursuant to s.441C(4), the applicant is taken to have received the letter seven working days after the date of the letter and I note the notation at CB 46, that the letter was posted on “17/10/06”. But in any event, seven working days after the date of the letter is 26 October 2006.

  3. The statute requires a period of notice to be given to the applicant for the hearing and, with reference to reg 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”), this is 14 days. Such notice period would have expired on 11 November 2006. The letter therefore, I am satisfied, complied with the requirements of s.425A, including the required reference to s.426.

  4. The applicant says that she received the letter but did not attend because she did not read or write English.  But in that regard I note that from the material that is before the Court, the letter included multilingual advice, and I note what is set out at CB 46.  But notwithstanding any claimed language difficulties in this regard, and even without reference to this multilingual advice, the applicant did find a way of making an application for a protection visa.

  5. When this was refused and I note that this was notified to the applicant by a letter from the Minister’s Department dated 18 August 2006, the applicant was able to also arrange, notwithstanding her claimed language difficulties, to make an application to the Tribunal in a timely fashion.  Nor is there anything in any of the material to show that the applicant notified the Tribunal in her application of any particular difficulties that she had in understanding any correspondence that might have been sent to her or in being unable to arrange assistance.

  6. I should just note that to the extent that the applicant now has put to the Court that at the time that it was very hard to find a job and that she was sick with a very high temperature, there is nothing in the material before the Court to show that the applicant notified the Tribunal of this difficulty nor did the applicant claim today that she made any attempt to do so. 

  7. The Tribunal, in all the circumstances, complied with the relevant statutory requirements. It invited the applicant to a hearing. In its letters it explained the importance of the hearing in the process of review. It met all the requirements in terms of notification and prescribed periods. In all, on what is before me today, the Tribunal was entitled to proceed pursuant to s.426A of the Act to make a decision without taking any further action to enable the applicant to appear before it.

  8. As I explained to the applicant during the course of the hearing today the statutory requirement imposed on the Tribunal, with reference to ss.65 and 36(2) of the Act, is that the Tribunal much reach a requisite level of satisfaction that in effect the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention, in which circumstance if it can be so satisfied the visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 (“SJSB”) at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (“NAST”) at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF of 2003”)).

  9. I can only agree with submissions made by the Minister in this matter that the Tribunal’s decision was based on a lack of detail in the applicant’s claims, and that when this is combined with the applicant’s failure to attend at the hearing, the Tribunal did not have the opportunity to test the applicant’s claims, nor even to put to the applicant its concerns regarding any of these claims.  In particular, in terms of their vagueness and lack of clarity.

  10. I agree with the Minister’s reliance on what Allsop J said in SZEZI v Minister for Immigration and Multicultural Affairs [2005] FCA 1195 in this regard. On the material that is before the Court, the Tribunal was entitled to make the finding that it did. As noted above, the Tribunal is required by statute to reach a requisite level of satisfaction as to whether protection obligations are owed to the applicant, and if such a positive state of satisfaction is not reached then this requires that the applicant be refused (SJSB, NAST, VSAF of 2003).

  11. I also note per VSAF of 2003, that the relevant statutory regime requires the protection visa to be rejected in the absence of a positive finding of satisfaction.  In her application to the Court, the applicant says that the Tribunal’s decision is unfair.  I cannot agree. 

  12. There is no unfairness where the Tribunal has complied with the relevant procedure as set out by the relevant statute. I note also that this is a case to which s.422B of the Act applies making the requirements set out in Division 4 of Part 7of the Act the exhaustive statement of the natural justice hearing rule of course absent bias Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]). But even if this were to be considered as against procedural fairness, and fairness as expressed at general law, I cannot see that what the Tribunal has done can be said to be unfair.

  13. The Tribunal received the application, it explained to the applicant the process by which the review would be conducted, and it told her of the importance of the hearing and invited her to a hearing. The applicant put no difficulties whatsoever that she now claims that she had, to the Tribunal. As was described by the Full Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 in similar circumstances, the Tribunal’s decision was the inevitable consequence of the applicant’s failure to attend the hearing.

  14. That the applicant now claims that she did not have time to organise materials is not a sufficient explanation as to why she did not go to the hearing.  That she did not have any materials plainly would not have prevented her from going to the hearing.  In regard to the applicant’s claims relating to her niece, these were plainly not put to the Tribunal, nor explained, and it cannot assist the applicant before the Court today as these are precisely the type of matters that should have been put to the Tribunal and could have been put to the Tribunal at the hearing.

  15. As I explained to the applicant during the course of the hearing today, the appropriate place to have pursued her claims to protection, that is her claims to be a refugee, was before the Tribunal, and not before this Court, which cannot assist the applicant by providing her with a protection visa.  Nor can this Court conduct any type of merits review such as to substitute a different decision for that of the Tribunal.

  16. The applicant herself concedes in the application that she lost the chance to give evidence at the Tribunal hearing.  There is nothing in the material before the Court today nor, unfortunately for the applicant, is there anything in what she has said today that reveals jurisdictional error on the part of the Tribunal. 

Conclusion

  1. I cannot discern jurisdictional error on what the applicant has put before the Court nor otherwise. Accordingly the application to the Court is dismissed.

  2. I note for the record that there was absolutely nothing said about a migration agent being involved in this matter, prior to my delivering judgment. During the course of the hearing today, I gave the applicant two specific opportunities to make her submissions to the Court, to say whatever she wanted to say to the Court, and nothing was said by the applicant in relation to a migration agent.  I also note from the material before the Court that there is nothing in the application for review notifying the Tribunal of any involvement by a migration agent. In fact, in answer to the question at CB 40 as to whether there is an adviser to act for the applicant, the applicant has answered “no”. Nor is there anything else before the Court to support any involvement by a migration agent as asserted by the applicant at this very, very late stage today.

  3. In relation to the issue of costs, it is of course the applicant’s right to come to this Court.  It is the applicant’s right to come to this Court and to assert that the Tribunal has made an error of law. But with the exercise of this right comes consequences and obligations. One of these is that if an applicant is unsuccessful before the Court, then in this case the successful party, the Minister, is entitled to seek some recompense for any legal costs that have been incurred in responding to an application brought by the applicant.

  4. Now the applicant has asserted that she does not have money, that she cannot work, and I note in this regard that she has been injured in a car accident, a fact that has been attested to by a medical practitioner. I also accept what the applicant has said to the Court that her son only works for a limited number of hours and that plainly she has financial difficulties.

  5. But taking all of these circumstances into account what I am left with is that it was the applicant who decided to pursue this matter in the way that she did before this Court. As unfortunate as the applicant’s car accident is, and the applicant does have the Court’s sympathy in that regard, I do not see that fact, nor a lack of funds, as being sufficient reasons not to make the costs order that the Minister has sought.

  6. As to the amount, I note that the amount is commensurate with the amount set out in the relevant schedule to the rules of this Court.  I do take the view that I am not bound by what is set out in that schedule, but I am satisfied in all the circumstances, and using what is set out in the schedule as a guide, that while the amount sought is at the upper end of the scale (in fact at the top), nonetheless it is a reasonable amount, bearing in mind the work that has been done by the Minister’s legal representatives. I will therefore make the order in the amount sought.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  14 December 2007

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

0