SZKEI v Minister for Immigration and Anor (No.2)
[2007] FMCA 2061
•14 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKEI v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 2061 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – where applicant did not attend Tribunal hearing – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 426A, 474, 474(1) |
| SZKEI v Minister for Immigration & Anor [2007] FMCA 112 |
| Applicant: | SZKEI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 424 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 November 2007 |
| Date of Last Submission: | 14 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| The Applicant: | Appeared in person |
| Appearance for the Respondents: | Ms Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 424 of 2007
| SZKEI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of the People's Republic of China. She asks the Court for orders setting aside the decision of the Refugee Review Tribunal refusing her the grant of a protection visa. She also asks for a writ of mandamus returning her application to the Tribunal to be determined according to law. In addition, she asks for a writ of prohibition preventing the Minister from taking any actions in reliance upon the Tribunal's decision.
The background to this matter is that the applicant arrived in Australia on 13th October 2005. She applied to the Department of Immigration and Multicultural Affairs for a protection (Class XA) visa on
18th November 2005. The department has since been renamed the Department of Immigration and Citizenship. On 3rd February 2006 her application for a visa was refused by a delegate of the Minister.
The applicant then applied to the Refugee Review Tribunal for a review of that decision. The Tribunal received her application on
8th March 2006. In the application the applicant set out her residential address in a suburb of Sydney. She also provided a mailing address which was a box at 460 Pitt Street, Sydney. She did not provide any telephone numbers with her application, nor did she nominate any migration agent or any other person to be an authorised recipient of correspondence on her behalf.
The Tribunal wrote to the applicant at her mailing address on
16th March 2006. That letter invited the applicant to attend a hearing of the Tribunal on 13th April 2006. The applicant sent a response to that hearing invitation indicating that she did wish to attend the hearing.
In the response she indicated that she would need an interpreter in the Mandarin language. The applicant did not, however, attend the hearing. The Tribunal noted that the applicant had not attended and did not contact the Tribunal to explain why she failed to attend.
The Tribunal noted that the applicant had not provided any telephone number or facsimile number in her application for review.
The Tribunal then decided to exercise its powers 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 the Tribunal. The Tribunal handed down its decision on 11th May 2006. A copy of the Tribunal decision record can be found at pages 50 through to 55 of the Court Book. The Tribunal considered the applicant's claims and the evidence before it in a brief summary that appears on page 52 and 53 of the Court Book. The Tribunal noted the applicant's claim that she was a Falun Gong member and had suffered persecution by the Chinese authorities when she was in China. The Tribunal noted her claim that after Falun Gong was banned the applicant still continued to practice. She claimed that in March 2003 she was arrested and detained by the police. She claimed that her husband used his savings to secure her release from police custody, but he was very angry and asked her for a divorce. She claimed that the police again arrived when she was practising Falun Gong at another person's home at the end of 2004. She applied for a passport and travelled to Australia where she claimed protection.
The Tribunal's findings and reasons are set out on page 53 through to 55 of the Court Book. The Tribunal noted the applicant's claims but was not satisfied that the evidence before it was sufficient to find in her favour. The Tribunal said:
On the basis of the information before it the Tribunal cannot be satisfied that the applicant is or was a Falun Gong practitioner and that she was persecuted and/or feared persecution in her country for her Falun Gong activities and left China for that reason.[1]
[1] See Court Book page 54
The Tribunal then set out various parts of the applicant's claim upon which it could not be satisfied and found that it was not satisfied that the applicant could not or would not return to China because she feared persecution there at the time of the hearing or in the reasonably foreseeable future due to her Falun Gong activities or practice.
The Tribunal went on to explain why it made this finding, saying:
The reason that the Tribunal cannot be satisfied about the above matters is that the applicant's claims are essentially untested assertions and are unclear and lacking in detail in important respects.[2]
[2] See Court Book page 54
The Tribunal then set out a number of matters about why it was unclear about the applicant's claims. The Tribunal went on to find:
There is no persuasive evidence before the Tribunal that enables it to be satisfied that there is a real chance that the applicant will face serious harm for the purposes of the Convention, either now or in the reasonably foreseeable future, if she returns to her country.[3]
[3] See Court Book page 55
The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant has commenced proceedings for judicial review of the Tribunal decision. The applicant filed an application and an affidavit on 9th February 2007. The applicant filed an amended application on 17th May 2007. In that amended application the applicant sets out three grounds of review:
(1)The Tribunal made a decision on my application based on some wrong information, not evidence and materials. The decision was biased. The “Country Information” was hearsay.
(2)The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. The Tribunal did not consider my application in accordance with s.424A of the Migration Act 1958.
(3)By the time I got to the Tribunal for the hearing, the receptionist told me that my hearing was over and I could leave. I did not know what was going on and listened to what she said. However, my application was refused within a short time without a hearing.
The applicant attended Court today and made oral submissions to the Court. In answer to a question from the Bench as to why she believed that the Tribunal decision showed bias the applicant said that the Tribunal member made her decision on no grounds and with no reasons. She said that the Tribunal relied upon irrelevant information. She reiterated her claim that the Tribunal did not comply with the provisions of s.424A of the Migration Act and said that the Tribunal did not inform her of the reasons why the Tribunal made that decision. She said she was not given the opportunity to comment on the reasons and therefore she had lost the opportunity to have her application reasonably decided. Therefore, she said, the Tribunal did not comply with the Migration Act.
The applicant went on to say that whether the decision was in her favour or not the Tribunal member was required to inform her of the reasons. She told the Court that she had lost the opportunity to explain her case. In answer to a question from the Bench as to why she did not attend the Tribunal hearing the applicant said that she looked at the time wrongly and saw the wrong time. She conceded that she did not ask the Tribunal for another hearing, although she did say that she had asked one of her friends to write to the Refugee Review Tribunal for her.
In reply Ms Johnson, solicitor for the Minister, told the Court that there was no information upon which the Tribunal relied that fell within the scope of s.424A of the Migration Act. She also said that an opportunity to give evidence was provided to the applicant when she was invited to attend a hearing before the Tribunal. No evidence had been produced to show that the applicant had contacted the Tribunal to explain her failure to appear.
In considering the application before the Court today I advised the applicant at the commencement of the proceedings that the Court could only set aside a decision of the Refugee Review Tribunal if the Court was satisfied that the decision was affected by jurisdictional error.
The applicant's claims that the Tribunal decision was affected by jurisdictional error are set out in the three grounds in her application. Whilst the first ground said that the Tribunal made a decision based on wrong information and not evidence, my reading of the decision shows that the Tribunal did not grant the application because it was not satisfied that the evidence was sufficient to show that the applicant met the requirements for a protection visa.
The applicant claims that the decision was biased. A claim of bias is a serious allegation and it must be strictly alleged and proved. There is no evidence that the Tribunal member was in any way biased. Certainly there is nothing in the Tribunal decision which would indicate any bias on the part of the Tribunal member. The applicant also claims that the country information relied upon by the Tribunal is hearsay. Whether or not country information is hearsay, the situation is in this case that the Tribunal did not rely upon any country information. The only country information to which the Tribunal referred was in very general terms and this was favourable to the applicant's case.
The Tribunal said:
The Tribunal accepts that there is sometimes persecution of Falun Gong practitioners by PRC authorities, including persecution in relation to practice at home where that is brought to the attention of police or party officials.[4]
[4] See Court Book page 54
That information, if such it be, was not information that was the reason or part of the reason for affirming the delegate's decision. It was country information in those general terms which would be favourable to the applicant's case and, in any event, is not caught by the operation of s.424A of the Migration Act.
As to the applicant's second ground, that the Tribunal failed to notify her of the reasons for affirming the decision and did not comply with s.424A of the Migration Act, there is no information that the Tribunal referred to as a reason or part of the reason for affirming the delegate's decision that falls within the scope of s.424A of the Migration Act. Consequently, there is no breach of s.424A of the Migration Act.
As to the applicant's third ground, that she arrived at the hearing too late and was told that the hearing was over, that may well be the case, but even taken at its highest does not establish any error on the part of the Tribunal. Although the applicant said that she asked one of her friends to write a letter to the Tribunal for her, there is no evidence that the applicant contacted the Tribunal on the day of the hearing or at any time between 13th April and 11th May 2006. It would have been open to the applicant to contact the Tribunal by telephone or letter in the days immediately after the hearing. The applicant could have contacted the Tribunal and explained the reasons why she missed the hearing and asked for another hearing.
In the circumstances where the Tribunal did not receive any message from the applicant after the hearing, I am satisfied that the Tribunal complied with the requirements of s.426A of the Migration Act when it proceeded to make its decision. There is no evidence that the applicant was not given opportunity to attend the Tribunal and explain her case. The Tribunal wrote to the applicant on 16th March 2006 and invited her to attend the hearing. The applicant received that letter and replied to it, saying that she was going to attend. As it turned out, she failed to do so.
Unfortunately, this is another example of a case where a person was invited to attend the hearing of the Refugee Review Tribunal and did not do so. It is not surprising in the circumstances that many applicants who fail to attend the hearing of the Tribunal are unsuccessful in their proceedings before the Tribunal.
I am aware that the applicant is not legally represented, but my reading of the Tribunal decision and the supporting material does not indicate any arguable case for jurisdictional error. I am satisfied that there is no jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as set out in s.474 of the Migration Act. Under sub-s.474(1) a privative clause decision is not subject to orders in the nature of certiorari or mandamus or prohibition. It follows that the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister. The amount sought is $3,000.00, which I consider appropriate in the circumstances. I propose to make the order sought.
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: 5 December 2007
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