SZKCF v Minister for Immigration
[2007] FMCA 849
•10 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKCF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 849 |
| MIGRATION – Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – application for a show cause hearing under r.44.12 of the Federal Magistrate Court Rules 2001 (Cth) – application dismissed. |
| Judiciary Act 1903(Cth), s.39B Migration Act 1958 (Cth), ss.91X, 425, 426A, 476 Federal Magistrate Court Rules 2001 (Cth), r.44.12 |
| Murphy v Minister for Immigration [2004] FCA 657 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZKCF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 258 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 10 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Fujian interpreter |
| Solicitors for the First Respondent: | Ms Z McDonald of DLA Phillips Fox |
ORDERS
The name of the first respondent is amended to read ‘Minister for Immigration & Citizenship’.
The application to show cause is dismissed pursuant to r.44.12(i)(a) of the Federal Magistrate Court Rules 2001 (Cth).
The application filed on 29 January 2007 is dismissed.
The applicant to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $2,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 258 of 2006
| SZKCF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Proceedings
This matter was brought before the Court by the applicant, seeking an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act (Cth) (“the Act”). Both sides appeared. The applicant is a self-represented litigant and had the assistance of an interpreter. I believe it is the parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated I would later publish my written reasons for those orders.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZKCF”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 29 January 2007 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 4 December 2006 and sent to the applicant on 22 December 2006.(CB 85) It affirmed a decision of the delegate of the first respondent made on 2 August 2006, refusing to grant the applicant a Protection (Class XA) visa.
The first respondent filed a response on 5 February 2007, opposing the application for an order to show cause on the ground that:
The application filed on 29 January 2007 alleges a breach of section 425 of the Act. As no particulars are provided, the First Respondent opposes it on the basis that no reasonable cause of action is shown.
Background
The Tribunal decision of D Buljan, reference 060758594, contains the following background information:
2.The applicant who claimed to be a citizen of the Peoples Republic of China arrived in Australia on 27 of April 2006. On 24 May 2006 he lodged an application to the Department of Immigration & Multicultural Affairs (the Department) an application for a protection (Class XA) visa. On 2 August 2006 the delegate refused to grant the applicant a protection visa and notified the applicant of the decision and his review rights by letter posted the same date.
3.The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention.
4.On 5 September 2006 the applicant applied to the Tribunal for a review of the delegate’s decision.(CB 89)
The applicant’s statement accompanying the protection visa application claims:
Before I came to Australia, I was once persecuted by the Chinese government for my religious beliefs, so I am not willing to return to China and wish apply for a protection visa in Australia.
My parents had been Christians for the whole life. I was influenced by my parents religious beliefs since I was a little boy. I have often heard them talking about the Jesus Christ. Also my mother often read me the stories of the bible.
The living standards in China at that time are very low. We were living a very poor life. But because we had the Jesus Christ in our mind, we never hard at all.
When I was about 10, my mother took me to her church formally for the first time. Since then I attended the church every week sometimes with my parents and other times by myself.
Among the church members I got to know Ms Merien Chen in 1987. She was also studying in the same middle school as me. We were very happy to know each other.
During the time we were both studying in the same middle school and whenever possible, we would be together to discuss the holy bible in and after the school. We were pleased to have such an opportunity.
After we graduated from our middle school Ms Merien Chen and I both had a job in the bank. We were staying more and more. We came to and off work together. We discussed the holy bible and went to church together.
I remember in February 1995 Ms Merien Chen took me to her house to be a guest. There I knew a lot of Christian friends. Merien told me that that was actually her father’s church. I was introduced to know Merien’s father. On that day I joined their church. I was very welcome to be one of them by other church members.
Soon after that I found I fell in love with Merien. In January 1997 I proposed to her and we got married in May 1997. After we married we were living a very happy life.
We continued to undertake our activities for the church. We printed the Holy bible that we brought in China from overseas and spread extensively. Every day we had some new members recruited into our church.
But one day in January 06, while there was a church meeting on the way, suddenly a few police raided the church. A few of us were taken to the police station. The police accused me of engaging in illegal activities. We were obtained for three weeks. During my detention I was badly harmed.
My family later paid the fines before I was released.
I could not figure out why our religious activities were subjected to such a strict punishment by the government.
After the incident, the church decided to send me to overseas to prevent me from being further persecuted by the government. With the help of these friends I successfully escaped from China.(CB 27-28, copied without alteration or correction)
Tribunal’s findings and reasons
A summary of the Tribunal’s reasons is contained in the first respondent’s written submissions and I adopt paragraphs 10 to 13 for the purposes of this judgment:
10.The Tribunal consider the applicant’s claims however was of the view that they were very general and lacked detail in significant aspects. The Tribunal noted that little detail had been provided on the following:
10.1his religious denomination and whether the religious group he belonged to was registered or unregistered church of faith;
10.2.the number of followers from his church;
10.3the manner of recruitment for new members or who was approached or the number or new recruits;
10.4the source of the imported version of the bible that he claimed his church distributed;
10.5the number of individuals that were taken to the police station in January 2006 or their specific roles;
10.6the accusation made against him by the police;
10.7specific incidents of harm suffered by him during his claimed detention;
10.8where he was held during his detention; and
10.9how much his family had to pay in fines to have him released.
11.The Tribunal found that it was unable to be satisfied on the limited information before it that the applicant was a Christian or that he was subject to detention by the Chinese police or government for reasons of his religion.
12.The Tribunal found that it was unable to be satisfied the applicant had ever suffered serious harm for reason of his religion or any other Convention reason.
13.The Tribunal concluded that it was not satisfied that the applicant faced a real chance of facing persecution in China for any Convention related reason.
Application for review of the Tribunal’s decision
On 29 January 2007, the applicant filed an application for review in this Court under s.39B of the Judiciary Act setting out the following ground:
Section 425(1) of the Migration Act, which says the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issue arising in relation the decision under review.
Submissions and reasons
The applicant appeared for first directions on 7 March 2007. At that time, I said that his application faced difficulties as the material before the Court indicated that he had been invited to, but failed to attend, his Tribunal hearing. The only ground of review is that the Tribunal was obliged under s.425 of the Act to invite him to a hearing.
I pointed out to the applicant that this contradicted the material in the decision. I said that I would provide him with time to prepare submissions to the Court explaining the contradiction. I also indicated that this issue had to be resolved before the application could proceed to a final hearing. A Court Book was prepared and filed in these proceedings before the first Court date.
The first respondent’s submit that there is nothing in the way the Tribunal conducted its review, nor anything on the face of the decision record, that could establish an arguable case for the relief sought. Due to the applicant’s failure to attend the hearing, the Tribunal could not be satisfied of his claims on the material before it. SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15]-[16], concluded that a legislative scheme which requires a positive state of satisfaction as to whether protection obligation exist, mandates a refusal if a state of satisfaction is not reached. The first respondent submits that, in these circumstances, the Tribunal had no alternative but to affirm the decision under review.
Ms McDonald, for the first respondent, submits that the Tribunal complied with ss.425 and s.425A of the Act when it sent the hearing invitation to the applicant on 19 September 2006.(CB 57-58) The hearing invitation was properly sent to the applicant at his nominated address for service.(CB 48.7) The invitation also gave the prescribed notice of the date, time and place the applicant was scheduled to appear. It is submitted that although the invitation was returned unclaimed, there is no error on the part of the Tribunal which complied with its obligation under the Act: Murphy v Minister for Immigration [2004] FCA 657 at [69] per Spender J. As a result, the applicant was taken to have been notified of the hearing seven working days after the invitation was sent.
Ms McDonald submits that s.426A of the Act provides that if an applicant is invited to a hearing under s.425 and does not appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The Tribunal decision shows that it did so proceed to make its decision.(CB74.4) Accordingly, the first respondent submits that there was no breach of s.425.
I invited the applicant to make oral submissions and to reply to the first respondent’s written submissions. He declined to make any submissions other than stating that he did not receive the hearing invitation. With the assistance of the interpreter, I invited him to refer to the Court Book at 14 where his address is recorded. The applicant to confirmed that he was still resident at that address. I note that this address also appears in his Tribunal application. Also contained in the Tribunal application is a Pitt Street, Sydney, address for correspondence. When I asked the applicant about this address, he said to the Court that he knew nothing about it and could not comment. I then invited the applicant to look at his declaration of 22 May 2006 in the original visa application, and to his declaration of 4 September 2006 in the Tribunal application. The applicant confirmed that the signatures on both documents are his. Initially, the applicant stated that he had not received any assistance in completing his protection visa application. This was later abandoned when I queried the applicant about the origin of two addresses, one a post office box in Haymarket and one the Pitt Street address.
Although the hearing invitation was sent to both Pitt Street and his residential address, the applicant maintained that he had not received either copy. I further note that a number of migration applicants before this Court have their addresses recorded as mail boxes at 422 Pitt Street, 460 Pitt Street and finally at 266 Elizabeth Street, Surry Hills. This could be due to the closure of the first premises and the demolition of the second. However many of those applicants maintain that no knowledge of these mail boxes even though the addresses appear on their applications. Regardless, it seems an unidentified third party collects and distributes correspondence to various applicants. Many are unable to meet to critical filing dates in response to correspondence sent to the addresses.
The Court Book contains copies of correspondence returned. No change of address form was filed by the applicant.
Conclusion
Despite the issue of receipt of the hearing invitation sent to his nominated address for receipt of documents and his residence, the applicant persisted with the claim that he had not received notification of the Tribunal hearing. I am satisfied that the Tribunal has complied with the provisions of the Act and that no jurisdictional error occurred. Consequently, the applicant’s application that the respondent show cause should be dismissed. The application filed on 29 January 2007 should also be dismissed.
I am satisfied that an order for costs should be made in his matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,100.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 1 June 2007
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