SZKAR v Minister for Immigration
[2007] FMCA 1070
•27 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKAR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1070 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a citizen of People's Republic of China claiming fear of persecution as a Falun Gong practitioner – where applicant did not attend the hearing of the Refugee Review Tribunal – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 |
| Applicant: | SZKAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 125 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 June 2007 |
| Date of last submission: | 27 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The applicant is to pay the first respondent's costs fixed in the sum of $2,200.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 125 of 2007
| SZKAR |
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 Tribunal signed its decision on 29th November 2006. The Tribunal handed down its decision on 19th December 2006 affirming the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant did not attend the Tribunal hearing. By his application filed on 15th January 2007 the Applicant seeks an order setting aside the Tribunal's decision on the grounds:
a)That jurisdictional error has been made.
b)That he has been denied procedural fairness.
c)That the Tribunal did not give him a letter for explaining any doubts.
Background
The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 16th June 2006 and applied for a Protection (Class XA) visa on 26th June 2006.
The application for a visa was refused on 29th August 2006. On 29th September in that year the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. In that application the Applicant gave his residential address in a suburb of Sydney. It is the same residential address that appeared on his application to this Court for judicial review. He nominated that address as his address for correspondence. He did not provide any other material to the Tribunal with his application for review.
The Tribunal wrote to the Applicant on 20th October 2006 at the address given on his application. The letter said:
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.
We now invite you and any persons listed below to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.
The letter went on to tell the Applicant that the hearing was listed for 1:00pm on 16th November 2006. The Applicant did not attend the hearing. The Tribunal handed down its decision on 19th December 2006. A copy of that decision can be found at pages 60 through to 66 of the Court book.
In that decision the Tribunal noted the Applicant's claims and evidence. It noted that the Applicant had visited Singapore and Malaysia in 2005 and had seen people practising Falun Gong. When he returned to China he started practising Falun Gong and eventually he and his brother, who also practised, came under notice of the police. In March 2006 his brother was detained by the police. He left China to seek protection.
The Tribunal noted that no further information or evidence was provided with the review application and noted that it had written to the Applicant at his residential address and that the Applicant did not appear before the Tribunal on the appointed day.
The Tribunal proceeded to exercise its power under s.426A of the Migration Act to make the decision on the review without taking any further action to enable the Applicant to appear before it. I note that the hearing date was set as 16th November, but the Tribunal did not sign its decision until 29th November. The Tribunal did note at page 64 of the Court book that the Applicant did not contact the Tribunal to explain his non attendance.
The Tribunal’s findings and reasons
The Tribunal found on the basis of the Applicant's evidence that the applicant was a national of China. As far as his substantive claim is concerned the Tribunal noted that the Applicant's claims were general and lacked detail in certain respects. The Tribunal noted the Applicant's claim to have learnt about Falun Gong and obtained a new understanding of it, but had not provided any particulars of that.
The Tribunal noted the Applicant's claims to have practised in China in company with other people, and noted that the Applicant did not detail how he lived his life after his brother was taken away by the police in March 2006, or whether he still feared he would be gaoled in China, or how else he might be persecuted in the future.
The Tribunal noted the Applicant's claims about himself and his brother were merely assertions which the Tribunal had not had the opportunity to explore by obtaining oral evidence and arguments at hearing. The Tribunal was not satisfied on the evidence before it that the Applicant practised Falun Gong in China alone or with anyone else, or that his brother practised Falun Gong and was arrested and gaoled.
The Tribunal was not satisfied that there was a real chance that the Applicant would be persecuted in the reasonably foreseeable future for a Convention reason if he were to return to China, and affirmed the decision not to grant the applicant a Protection (Class XA) visa.
Application for judicial review
In the Applicant's application filed on 15th January 2007, the Applicant sets out three grounds. He alleges jurisdictional error, but has provided no particulars of any jurisdictional error. He alleges a denial of procedural fairness. He told the Court that the Tribunal did not give him a chance and said that he did not attend the hearing because when he got the letter inviting him to the hearing it was too late, he had moved and the letter went to his old address.
The Applicant did not explain how it was that the address that he gave to the Tribunal for the purpose of his review application and the address that he gave on his application to this Court on 15th January were the same address. He conceded that he did not tell the Tribunal that he had changed his address, nor had he contacted the post office to ask them to forward on any mail. He said that the Tribunal did not give him a chance because he got the letter too late. He also said that he expected more time to stay here in Australia, and pointed out that he had broken his leg and he says his back in an accident on 28th March.
I note that the Applicant's leg is in plaster and that he walks on crutches, and he has told the Court that he will be in plaster until
28 July. I originally listed this matter for final hearing on 8 May 2007, but due to the Applicant's hospitalisation for his injuries I adjourned the proceedings until today.
The Applicant has not provided any grounds which go towards jurisdictional error. He did not attend the hearing, and it is an almost inevitable result when people do not attend the hearings of the Tribunal that the Tribunal fails to be satisfied that they have met the criteria for a visa. This is particularly so when the Tribunal has written to the Applicant advising that on the material before it the Tribunal is unable to be satisfied that the Applicant meets the criteria for a visa. (See SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 also SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 and NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287).
There is no breach of s.425 of the Migration Act. The Applicant was invited by the Tribunal to attend a hearing, and the invitation was sent to the address that he himself gave to the Tribunal. The Tribunal scheduled the hearing, even though the Applicant did not reply, and noted that the Applicant did not attend the hearing at the time it was required.
The Tribunal did not make its decision on the spot. The hearing was scheduled for 16th November 2006 and the Tribunal made its decision on 29th November 2006. The Tribunal noted that the Applicant had not contacted the Tribunal after the hearing to explain why he did not attend. In my view, the Tribunal has complied with the requirements of s.426A of the Migration Act, and no jurisdictional error appears there.
The reason why the Tribunal was not satisfied that the Applicant met the requirements for visa was because of the lack of information provided. It is up to an applicant to provide evidence to the Tribunal showing that the Applicant meets the criterion for a protection visa under sub-s.36(2). The absence of material meant that the Tribunal was not satisfied, and in the circumstances the Tribunal had no alternative but to affirm the delegate's decision not to grant a protection visa.
The Applicant is not legally represented in these proceedings, although he did have the benefit of advice from a barrister under the Legal Advice Scheme which operates. In fact Mr Terrence Ower, barrister, wrote to the Court confirming that he had not only conferred with the Applicant but advised the Court that the Applicant had broken his leg, and provided a copy of a medical certificate. Mr Ower's letter told the Court that the Applicant would be unable to attend the hearing on 8th May. Mr Ower's letter also advised the Court of a change in the Applicant's contact details. That letter from Mr Ower, dated 4th May 2007, appears to be the first indication that the Court has received of a change in the Applicant's address.
I am satisfied that the Applicant has received proper legal advice from a legal practitioner, but he has not of course been legally represented today.
My reading of the decision, independently of either the Applicant's submissions or the Respondent's submissions, does not indicate to me that any arguable case for any jurisdictional error can be made out.
As there is no jurisdictional error the decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. As a result, no orders in the nature of certiorari or mandamus or prohibition are available. The application will be dismissed. I note that I have previously made an order changing the title of the First Respondent to Minister for Immigration & Citizenship.
There is an application for costs on behalf of the Respondent Minister. The Applicant has been wholly unsuccessful in his claim, and this is a clear case for a costs order in favour of the successful party. The amount sought is $2,200.00, which is an appropriate figure and well within the scale envisaged by the Federal Magistrates Court Rules. The Applicant is not working at the moment, and indeed he will not be out of plaster until 28th July. That is a matter I will take into account when assessing time to pay, and in the circumstances, whilst I propose to make an order for costs in the amount of $2,200.00, I will allow four months to pay.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 6 July 2007
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