SZKET v Minister for Immigration

[2008] FMCA 142

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKET v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 142

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 – applicant a citizen of China – alleged fraud of migration agent – no evidence of fraud – no jurisdictional error.

Migration Act 1958 (Cth), ss.417, 424A, 477

Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105; (2007) 159 FCR 565 followed

Applicant: SZKET

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 458 of 2007

Judgment of: Scarlett FM

Hearing date: 4 February 2008

Date of Last Submission: 4 February 2008

Delivered at: Sydney

Delivered on: 4 February 2008

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $1700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 458 of 2007

SZKET

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant is a citizen of China. He asks the Court to set aside a decision of the Refugee Review Tribunal that was made on 11 September 1998. The applicant claims that the decision should be set aside because the Tribunal failed to comply with the provisions of s.424A of the Migration Act and that the decision was also affected by a fraud by his migration agent.

2. The background to this matter is that the applicant arrived in Australia in 1997.  He applied for a protection visa on the basis that if he were to return to China he would be persecuted because of his political views and for the fact that he had applied for protection in Australia.  He claimed that he had been an anti communist for a long period of time and had supported the pro democracy movement in China and participated in political demonstrations.

3. The delegate of the Minister refused the application for protection visa.  The applicant then, on 11 June 1997, applied to the Refugee Review Tribunal for a review of the delegate's decision.  The application was prepared for him by a migration agent.  In the application, the applicant provided his home address in a suburb of Sydney and provided an address for service which was Post Office Box K464 Haymarket, New South Wales, which is the post office box of the migration agent. 

4. The migration agent provided his name and address on the application, and the application indicated that the applicant wished copies of the correspondence from the Tribunal to go to his advisor.  The Tribunal wrote to the applicant on 17 June 1997, acknowledging receipt of his application and wrote again on 24 July 1998 inviting him to attend a hearing on Thursday, 10 September 1998. 

5. Both of those letters were sent to the post office box of the migration agent.  The migration agent wrote to the Tribunal on 10 August 1998, advising that the firm no longer acted for the applicant and asked that all further correspondence be forwarded to the address given for the applicant on the application for review.  A copy of that letter can be found at page 53 of the Court Book. 

6. The Tribunal then wrote a letter to the applicant at his home address in Sydney being the address that appeared on the application for review.  That letter, again, invited the applicant to attend the hearing on Thursday, 10 September 1998.  A copy of that letter can be found at pages 54 and 55 of the Court Book.  I note that a pen notation appears on the letter beside the applicant's name and address being, "RP2698977".  This would be appear to be the number of a registered post envelope.

7. The applicant replied to the invitation to the hearing on 14 August 1998.  In that document he indicated that he wished to attend the hearing and would like an interpreter in the Mandarin language.  He gave the same residential address in a suburb of Sydney as appeared in his application for review.  It was the same address as the address which the Tribunal had used when it wrote to him on 11 August 1998. 

8. The applicant attended the hearing on 10 September 1998.  He attended and gave evidence.  A copy of the Tribunal decision and Reasons for Decision can be found at pages 59 through to 67 of the Court Book.  The Tribunal noted that the applicant attended the hearing on 10 September and gave oral evidence.  The Tribunal set out the applicant's claims and on pages 64 and 65 of the Court Book there appears a summary of the applicant's evidence of the Tribunal hearing.

9. The Tribunal's findings and reasons can be found at pages 65 through to 67 of the Court Book.  The Tribunal found:

   I accept that the applicant may not like China's ideology or its political system, but that does not take him within the terms of the convention definition.  He was never persecuted for his political opinions and, in my view, he was not a high or even a low level political activist[1].

   [1] See Court Book page 65

10. The Tribunal accepted that the applicant may have participated in pro‑democracy demonstrations, but did not accept that he would be a person that interested the authorities.  The Tribunal did not accept the applicant's claims about the activities in which he said he had participated.  The Tribunal went on to note that it did not accept the explanation that he gave that his first legal advisor had failed to include everything in his application which he had written out in Chinese. 

11. The Tribunal says:

    I do not accept the applicant's explanation that he did not understand English, or that his legal advisor had omitted important details.  The form contained accurate information about when and where the applicant went to school and where he lived.  I find it implausible that a legal advisor submitting a claim for refugee status would neglect to include mention of his client's arrest and political activities such as that described by the applicant at the Tribunal hearing.  The applicant, moreover, claimed at the hearing that he consulted somebody in Chinatown about the statement used to accompany his protection visa.  Finally, his application for a review of the department's decision was made in June 1997 which means he had over a year to amend his initial application[2].

    [2] See Court Book page 66

12. The Tribunal did not accept the applicant's claim that he feared persecution for the conventions reasons and was obliged to pay a sum of money to buy a false passport in order to escape from China.  The Tribunal, because of the Tribunal's problems with the applicant's credibility, was not satisfied that the applicant had a well founded fear of persecution for a convention reason at the time of the hearing, or in the reasonably foreseeable future.  The Tribunal affirmed the decision not to grant a protection visa.

13. The Court Book shows that the Tribunal wrote to the applicant on 11 September 1998 at his address in that same suburb of Sydney that he had used before.  The letter contained a copy of the Tribunal decision and reasons.  A copy of that letter appears on page 59 of the Court Book and, again, it appears that it may well have been sent by registered post.  The letter bears the notation, beside the applicant's name and address, "RP4513738".

14. No further steps appeared to have been taken by the applicant until, as he told the Court today, he was apprehended and placed in the Immigration Detention Centre at Villawood in 2005. On 24 August 2005 he appointed another migration agent to act for him, and on 12 September that year the agent lodged a s.417 application for him with the Minister.

15. The Minister notified the applicant on 14 December 2006 that the Minister would not exercise the powers under s.417 of the Act. The applicant then commenced proceedings in this Court on 13 February 2007. On 18 June 2007, at a show cause hearing, the application was dismissed by this Court as having no jurisdiction under the provisions of s.477(1) of the Migration Act. The applicant sought leave to appeal on 26 June 2007, and on 7 November 2007 Jacobson J granted leave to appeal, heard the appeal, allowed the appeal, set aside the first order made on 1 June, and remitted the application for hearing.

16. The basis of that decision was that the decision of this Court was handed down before the decision of the Full Court of the Federal Court in Minister of Immigration & Citizenship v SZKKC[3]. Jacobson J noted that that case was authority for the proposition that s.477 of the Act requires actual notification of the written statement required by s.430. I note that on 7 November, his Honour ordered that the matter should be dealt with in the Federal Magistrates Court as a matter of some urgency, and on 17 December 2007 the application came before me and I listed it for hearing today.

    [3] (2007) 159 FCR 565; [2007] FCAFC 105

17. Dealing now with the applicant's submissions. First of all, he claims that the Tribunal fell into error by failing to comply with s.424A of the Migration Act and also failed to comply with s.424 of the Act. It appears that there has been some confusion in that both references should be to s.424A, but in any event, s.424A of the Act does not apply because it had not come into force at the time of the Tribunal hearing in 1998.

18. Section 424A did not commence operation until 1 June 1999, and certainly did not bind the Tribunal at its hearing on 10 September 1998. That ground must fail. The second ground which was not argued in the application that has been argued in the applicant's submissions, is that there is a fraud by the migration agent. The applicant claims that the migration agent no longer acted on his behalf before he filled out the communication for him to attend the hearing. The applicant claims that the migration agent changed his postal address without notifying him.

19. The applicant says in his submission:

    The fact that a document is given to the authorised representative does not prevent the document being given to the applicant as well.  The requirement that the communication is to be given to the authorised representative is reinforced by the structure of the Act which makes it clear that if an authorised representative has been appointed then that is the person referred to in the various procedural provisions of the Act such as ss.494B and 494C, which set out the methods by which documents may be given to a person. 

    It is, therefore, not sufficient that the notification be sent to the applicant care of the authorised representative or that a letter addressed to the applicant be copied to the authorised representative, nor would it appear sufficient that the envelope containing the letter addressed to the applicant may have actually been addressed to the authorised recipient.

20. It is hard to see how any of that is relevant.  The applicant was invited to attend the hearing whilst the migration agent was still acting for him.   The original invitation letter was sent on 24 July 1998 to the applicant care of the migration agent.  The applicant, it will be remembered, attended the hearing and he told the Court that he had been informed by the migration agent.  The migration agent did not advise the Tribunal that he was no longer acting until 10 August 1998.  He advised the Tribunal to use the applicant's home address which also appeared on the application.

21. That is what the Tribunal did on 11 August 1998 when, for more abundant caution no doubt, he wrote to the applicant and invited him again to attend the hearing on 10 September 1998.  The applicant obviously received that letter because he replied four days later indicating that he wished to attend and wanted a Mandarin interpreter.  He gave his same address on his reply.  He attended the hearing and gave evidence.  The Tribunal wrote to him at that same address and sent him a copy of the decision.

22. The applicant claims the Tribunal did not notify him. All the evidence appears to be to the contrary. The applicant claims that there has been fraud by the migration agent. There is no evidence of any fraud, indeed, it is hard to see what the fraud is alleged to be. The applicant claims that he never received a copy of the Tribunal decision, although the Court Book suggests that it was sent to him by registered post on 11 September 1998. He claimed he knew nothing until he was taken into detention seven years later in 2005. He then engaged a migration agent, who brought a s.417 application which was unsuccessful.

23. There is no evidence which supports the applicant's explanation of the delay of seven years from the time he attended the Tribunal hearing until the time he was apprehended seven years later in 2005.  If the Court were satisfied that a jurisdictional error had been made out, the unexplained delay of seven years would be sufficient to deny relief on discretionary grounds. 

24. It is not necessary, however, to consider that matter any further because I am not satisfied that any jurisdictional error appears in the Tribunal decision. The decision was made on credibility grounds after the applicant had attended the Tribunal and given evidence. This is not a case of an applicant being deprived of an opportunity to attend a hearing. He got one. The Tribunal just did not believe him. There could not have been a breach of s.424A of the Act because it was not in force.

25. There is, in my view, no suggestion that the applicant was taken by surprise that the Tribunal did not accept his evidence. The credibility of the applicant's evidence was what the case was all about. I am mindful of the fact that the applicant is not legally represented. My reading of the Tribunal decision discloses no jurisdictional error. The Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. It is not, therefore, subject to challenge and, in my view, the application should be dismissed. I will hear submissions on costs.

26. There is an application for costs on behalf of the first respondent Minister.  The applicant has been unsuccessful in his claim, and to my mind this is a suitable matter for a costs order.  The amount of $1700 which is sought is to my mind well within the scale.   

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  13 February 2008