SZKGT v Minister for Immigration
[2007] FMCA 788
•18 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 788 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – merits review – application for reinstatement – whether RRT failed to properly notify applicant of hearing. |
| Migration Act 1958 (Cth), ss.65; 65(1)(b); 426A |
| Applicant: | SZKGT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG713 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 18 May 2007 |
| Date of last submission: | 18 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2007 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Ms N. Johnson, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG713 of 2007
| SZKGT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex-Tempore
This is the applicant's application for reinstatement filed on 5 April 2007. That application seeks an order setting aside the order made by this Court on 22 March 2007 dismissing the applicant's application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) filed on 1 March 2007.
In support of his application the applicant filed an affidavit, sworn on 5 April 2007, on the same day (“the Affidavit”), and this follows:
“1. I didn’t receive the notice for the scheduled directions hearing and didn’t receive a copy of my FMC application back I filed with the FMC registry in Sydney.
2. My FMC judicial review application was forwarded to DIAC directly by FMC registry and wasn’t served by me.”
The applicant also tendered a letter dated 6 March 2007 from Sparke Helmore Lawyers addressed to the applicant and marked exhibit 1A. That letter enclosed the first respondent's notice of appearance and further informed the applicant about the pending directions hearing in the following terms:
“We act for the respondent, the Minister for Immigration and Citizenship, in this matter.
We enclose, by way of service a copy of a Notice of Appearance filed in the Federal Magistrates Court on 6 March 2007.
Please note that the Court is unable to publish your name and will therefore refer to your matter using the non-publication name of ‘SZKGT’.
…
DIRECTIONS HEARING
Please note that if you do not attend the scheduled directions hearing in your matter we will seek orders from the Court under Rule 13.03A(c) of the Federal Magistrates Court Rules to have your application dismissed and for you to pay the Minister’s legal costs (emphasis added).
Please note that the name of the Minister has recently changed to “Minister for Immigration and Citizenship”. Please ensure that future references to the Minister reflect this change. We will seek to formalise the name change with the Court at the next appearance.
If you have any queries, please contact us.”
The applicant was cross‑examined about the matters in the Affidavit, particularly his evidence that he did not receive a copy of the Federal Magistrates Court application from the Registry.
The cross‑examination commenced with the first respondent's solicitor, Ms Johnson, asking direct and simple questions about the filing of the applicant's application on 1 March 2007.
The first question sought confirmation from the applicant that the application referred to in the Affidavit was indeed the application filed on 1 March 2007. The applicant answered affirmatively.
The second question asked of the applicant, “Did you attend the Registry on 1 March to file the application?”, to which the applicant responded “yes”. When asked what happened when he attended the counter to file his document, the applicant then said that the application had been sent. When it was put to the applicant that he had just said that he attended the Registry, the applicant answered, “Which documents?” and was generally unresponsive. He was then asked “So you did not attend the Registry on 1 March 2007?”, and the applicant responded, “You mean to pick up the application form?”. The applicant was then asked, “Did you send the application form by mail?”, and the applicant responded, “Yes, I asked a friend to send it for me”. This was the first mention by the applicant, either orally or in writing, of reliance on any friend in the filing of his application.
The applicant was then cross‑examined as to who it was he had asked to send his letter and what steps he had taken to inform himself about any court hearing date. The applicant was unable to identify when he asked his friend to send the application to the Court and ultimately confirmed that he had taken no step between when he said he asked his friend to send the application to the Court and when he received notification from the first respondent that his application had been dismissed to find out when his matter may be coming before the Court.
None of this evidence was referred to by the applicant in the Affidavit, and at the outset of giving oral evidence, the applicant was asked if there was any further amendment or addition he wished to make to the Affidavit, to which he answered “no”.
Exhibit 1A, sent to the applicant on 6 March 2007, clearly refers to a scheduled directions hearing and, despite having received that letter, the applicant's evidence is that no step was taken be by him to make any inquiry from any person as to when his matter may be before the Court.
The applicant relied solely on his evidence that he did not receive notice of the scheduled directions hearing from the Court or anyone else. That is not an adequate explanation, and for that reason alone the applicant's application for reinstatement ought be dismissed.
However, I do have regard to the application filed by the applicant on 1 March 2007 in considering whether or not that application raises a serious question to be tried or, indeed, an arguable case. The grounds of the applicant's application are as follows:
“1. The Tribunal didn’t provide me with specific reasoning for refusing my review application.
2. The Tribunal was mistaken in deciding I was not a genuine refugee.
3. The Tribunal didn’t properly consider my claims.
4. I was not able to attend the scheduled hearing and was not given another opportunity to substantiate my claims.”
None of the specified grounds contain any particulars and no evidence has been provided in support of any of the contentions raised in the grounds.
Ground 1 complains that the Tribunal did not provide the applicant with reasons for refusing his review application. It is plain that the Tribunal did give reasons for its decision and that they were ultimately received by the applicant. In any event, without any further particularisation or evidence the ground is otherwise not a proper ground of judicial review.
Ground 2 states that the Tribunal is mistaken in its decision that the applicant was not a genuine refugee. Such a ground would appear to seek merits review which this Court cannot undertake.
Ground 3 alleges that the Tribunal did not properly consider the applicant's claims. Again, the applicant has not identified any claim that was not considered by the Tribunal.
Ground 4 states that the applicant was not able to attend the Tribunal hearing and was not given another opportunity to substantiate his claims. Again, this ground is not accompanied by any particulars or evidence. The ground does not reveal any reason as to why the applicant was unable to attend, nor does it allege any error on the part of the Tribunal in relation to the Tribunal's compliance with the statutory requirements involved in the making of its decision, including the conduct of its review.
On 24 October 2006 the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter informed the applicant of the date, time and place of a scheduled hearing, being more than five weeks from the date of the letter. The letter also informed the applicant that the Tribunal would only change the hearing date for good reason and that if the applicant thought he may be unable to attend the hearing he must contact the Tribunal immediately, but if he did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice.
On 26 October 2006 the Tribunal received from the applicant a response to hearing invitation indicating that he did wish to attend a scheduled hearing. However, he did not, in fact, attend.
On 2 January 2007 the applicant wrote to the Tribunal stating that he had lodged his review application on 13 October 2006 and had not received a decision on his application so far. The terms of that letter are set out here has follows:
“I lodged a review application on 13/10/2006 and haven’t received a decision on my application yet so far. Since I don’t speak English, could you please advise my friend, [Name], on [telephone number] if a decision has been sent to me? Alternatively you may email me with an update on my application to [email address].
Your kind help would be greatly appreciated.”
As stated above, the applicant does not assert any error on the exercise of the Tribunal's discretion pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”) in deciding to make its decision on the review without taking any further action to enable the applicant to appear before it. The applicant's decision refers in detail to the claims made by the applicant in support of his allegation of a fear of persecution in the People’s Republic of China (“the PRC”) by reason of being a Falun Gong practitioner.
The Tribunal identified various aspects of the applicant's claim that it would have explored with the applicant at a hearing and ultimately was not satisfied on the material before it that the applicant had ever been a Falun Gong practitioner or had ever had any involvement with the Falun Gong. The Tribunal found the applicant's claims concerning his Falun Gong involvement to be brief and lacking in detail, and did not provide a sufficient basis for the Tribunal to be satisfied as to their accuracy.
The Tribunal was not satisfied that the applicant faced a real chance of harm amounting to persecution from the PRC authorities because of his involvement with Falun Gong in the PRC and was not satisfied the applicant has a well-founded fear of persecution for a reason related to the Refugees Convention as amended by the Refugees Protocol should he return to the PRC in the reasonably foreseeable future.
Section 65 of the Act requires a decision maker such as the Tribunal to consider a valid application, and if it is satisfied that the criteria for being a refugee had been met, then it is to grant the visa. However, s.65(1)(b) states that if the a decision maker such as the Tribunal is not so satisfied, then that decision maker must refuse to grant the visa.
A fair reading of the Tribunal’s decision and the applicant's application does not identify any serious question to be tried in respect of any jurisdictional error on the part of the Tribunal in the making of its decision, including the conduct of its review, nor has the applicant satisfied the Court that he has any arguable case or any case with reasonable prospects of success. In those circumstances, even if I were persuaded that the applicant's explanation was adequate, there would be, in my view, no utility in making the order sought by the applicant.
Accordingly, the applicant's application for the setting aside of the order of this Court made on 22 March 2007 dismissing the applicant's proceeding, commenced by application filed on 1 March 2007, is dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 30 March 2007
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