SZKHX v Minister for Immigration
[2007] FMCA 882
•22 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 882 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – applicant a citizen of China – claim of fear of persecution because of religious belief in Falun Gong - where Applicant did not attend the RRT hearing – no reviewable error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.424A, 425, 426A, 474. |
| Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 followed SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 referred to. |
| Applicant: | SZKHX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 780 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 May 2007 |
| Date of last submission: | 22 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Mafessanti |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the title of the First Respondent is changed to Minister for Immigration & Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 780 of 2007
| SZKHX |
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. Unfortunately, it is yet another case where an applicant claims to have been the victim of an unscrupulous or incompetent migration agent.
The Tribunal signed its decision on 3rd November 2006 and handed its decision down on 28th November 2006. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. The Applicant has attended Court today to seek a review of that decision.
Background
The background to this matter is that the Applicant is a citizen of the People's Republic of China. She arrived in Australia on 7th May 2006 and applied for a Protection (Class XA) visa on 2nd June in that year. The Applicant claims a fear of persecution in China as a Falun Gong practitioner.
A delegate of the Minister refused the application for a visa on 31st August 2006. The Applicant then applied to the Refugee Review Tribunal for a review of that decision on 28th September 2006. No additional documentation was supplied to the Tribunal, apart from the application itself. The application form provided a mobile telephone number for the Applicant and provided her then residential address in Australia. The Applicant did not nominate any person as the Applicant's authorised recipient. The Applicant, in her application, gave her then home address as her address for all correspondence. What the Applicant says, however, is that she had in fact instructed a migration agent to act for her. She told the Tribunal that she paid 80,000 RMB in Chinese currency to this person. Presumably, it was this person who prepared her application for review.
The Tribunal wrote to the Applicant on 29th September, acknowledging her application. The letter informed the Applicant that a Tribunal Member may either make a decision in her favour or invite her to attend a hearing of the Tribunal. The letter also told the Applicant that the Tribunal Member may also write to her for more information or ask her to comment on information that the Tribunal already had. The letter went on to tell the Applicant about the purpose of the Tribunal hearing and why it was important.
The Tribunal wrote two letters to the Applicant on 10th October 2006. The first letter was a letter which appears to have been written in order to comply with the requirements of s.424A of the Migration Act. The text of the letter, where relevant, is as follows:
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
The information is as follows: The statement of your claims attached to your primary application contains largely material cut and pasted from texts available on the Internet. There is little information on your practice of Falun Gong and none regarding persecution you have suffered in China before coming to Australia.
This information is relevant because it could be the reason, or part of the reason, for the Tribunal not to give any weight to your claims.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 2 November 2006.
If you do not give comments by 2 November 2006, the Tribunal may make a decision on the review of your case without further notice.
The Applicant has told the Court today that she passed this letter on to her migration agent. It is clear that the Tribunal did not receive any comments on the information in the letter by 2nd November or on any other date.
The other letter that the Tribunal sent to the Applicant on 10th October 2006 was an invitation to attend a hearing. The letter began:
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.
The letter invited the Applicant to attend a hearing at 10:00am on 3rd November 2006. The Tribunal did not receive any reply to that letter either. The Tribunal record shows that a Tribunal officer prepared what is known as a "No‑reply Checklist". The case note, which appears at page 54 of the Court book, is dated on 24th October 2006. The comment by the officer is as follows:
No‑reply checklist done. I rang the number provided by the applicant and her flatmate answered. He spoke some English, so he interpreted for the applicant and he reminded her that her hearing will be held next Friday. He said she will be attending the hearing and will require a Mandarin interpreter. He said he will help her complete the RTHI and send it back to us as soon as possible.
I should note that the initials "RTHI" stand for "Response To Hearing Invitation", which is a standard form document that the Tribunal sends to applicants who are invited to attend a hearing.
The Applicant told the Court that she had received a telephone call from the Tribunal about the hearing. She said that she passed on the letter inviting her to the hearing to her migration agent. She said that the migration agent told her that she was not required to attend the hearing.
The Applicant did not attend the hearing. It is hardly surprising that the Tribunal did not grant her application. The Tribunal decision record can be found at pages 60-66 of the Court book. The Tribunal noted that the Applicant did not reply to the Hearing Invitation, even though a Tribunal officer telephoned the Applicant on 24th October and passed the message that the Applicant was expected at a hearing on 3rd November.
The Tribunal exercised its power under s.426A of the Migration Act, once the Applicant did not appear before the Tribunal on 3rd November, to make its decision on the review without taking any further action to enable the Applicant to appear before it. The Tribunal also noted, at page 65 of the Court book, that the Applicant did not reply to the letter to her of 10th October 2006 inviting her to comment on certain information. The Applicant did not reply, even though the letter warned her that, if she did not give comments by 2nd November, the Tribunal may make a decision on the review of her case without further notice.
The Tribunal’s findings and reasons
The Tribunal, in its findings and reasons, noted the Applicant's claims but, in effect, was not satisfied that the Applicant had provided sufficient information to satisfy the Tribunal that she complied with the requirement for a protection visa. Accordingly, the Tribunal affirmed the decision of the delegate not to grant the Applicant a visa.
The application for judicial review
The Applicant commenced proceedings in this Court, seeking judicial review of the Tribunal decision, on 7th March 2007. She filed an application and an affidavit. She has since filed an amended application on 11th May 2007. Curiously, the amended application is annexed to an affidavit.
The Applicant has told the Court that she is illiterate in her own language. I am now informed that the Applicant says she is illiterate in English, not in Chinese, and the reason for that, of course, is that she does not speak English.
The affidavit - and, in fact, her earlier affidavit as well - does not comply with r.15.27(2) because it does not contain a certification that a translation of the affidavit and oath or affirmation must be read or given in writing to the person in a language that the person understands, and that the translator has certified, in or below the jurat, that he or she has done so. There is nothing in either affidavit to indicate that the Applicant does not speak English, although that is clearly the case. Nevertheless, I propose to accept the documents, notwithstanding this failure to comply with the rules.
The Applicant did obtain legal advice from a barrister under the pilot legal advice scheme. The amended application, which, in my view, does comply with the rules and does not need to be annexed to an affidavit, shows that it was settled by a barrister under that scheme. It is not necessary to mention the name of the barrister.
The amended application seeks a writ of certiorari to quash the decision of the Refugee Review Tribunal. It seeks a writ of mandamus addressed to the Tribunal, requiring it to hear and determine the Applicant's application according to law. It also seeks a writ of prohibition to issue to the First Respondent, the Minister, to prevent any action being taken in reliance upon the Tribunal decision.
The application also contains an application for interlocutory relief - in other words, an application for an interim order. This was not sought when the Applicant appeared before this Court on the First Court Date, which was on 26th March 2007. The interim order that is sought, under the heading "Application for Interlocutory Relief", says this:
The applicant claims that these proceedings should be stayed or no orders made in relation to the hearing of the appeal, pending the outcome of the appeal against the decision of the full Federal Court in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142.
I should make it clear that, in the circumstances, it would have been inappropriate for the Court to stay those proceedings, as sought by the Applicant. Whilst I am aware that the High Court of Australia has granted special leave to appeal in the case of SZFDE (supra), I am not aware that the appeal has been heard. It is certainly not the case that the appeal has been decided. It is inappropriate for a trial Court to speculate on the outcome of an appeal to the High Court of Australia which has not even yet been argued. The fact remains that the Full Court of the Federal Court has made a decision in SZFDE, and that decision is binding on the Federal Magistrates Court. Unless and until the decision in SZFDE is overturned by the High Court, it remains binding on the Federal Magistrates Court.
In my view, the Court must follow the decision in Minister for Immigration & Multicultural Affairs v SZFDE, as it is relevant to these proceedings. That decision is directly relevant as can be seen from the grounds of the application that appear in the amended application prepared by counsel for the Applicant. I will quote those grounds in full:
(1) The decision of the Tribunal dated 3 November 2006 and received by the Applicant on 22 February 2007 ("the decision") was vitiated by jurisdictional error, for the reason that the discretion to make a decision on the review, without taking further action to enable the applicant to appear before it, miscarried in circumstances when:
(a) the Applicant had received advice from her Migration Agent that she was not required to appear at the hearing;
(b) the Applicant had accepted that advice in good faith, relying on the skill and care of the Migration Agent;
(c) the advice of the Migration Agent was given in circumstances of flagrant incompetence;
(d) the advice of the Migration Agent was not given with skill and care;
(e) the Applicant's failure to appear was not voluntary;
(f) the Applicant's failure to appear would not have occurred but for the flagrant incompetence of her Migration Agent;
(g) the Tribunal denied procedural fairness to the Applicant by exercising the discretion to make a decision on the review without taking further action to enable the Applicant to appear before it.
(2) The decision was vitiated by jurisdictional error for the reason that the Applicant was denied procedural fairness in the circumstances described in (1).
The Applicant has not filed a written outline of submissions but attended Court today and made oral submissions. Her submissions went to two issues:
i)factual matters relating to her claimed practice of Falun Gong; and,
ii)her claim that she had paid a sum of money to a migration agent who had failed her by advising her not to attend the hearing.
The Applicant told the Court that she had not made any complaint against the migration agent to the Migration Agents Registration Authority or to any other body. She did not provide any details of this alleged migration agent in her amended application but mentioned that she had a copy of the migration agent's advertisement with her. She had the person's name and mobile telephone number.
The solicitors for the Respondent have filed a written outline of submissions in which they refer to the decision in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142. In particular, Ms Mafessanti, solicitor, refers the Court to paragraphs [236] and [237] of the decision.
The Applicant may well have been deceived by a purported migration agent. If so, she, unfortunately, has wasted her money. The Applicant has provided no evidence that she was the victim of an unscrupulous or incompetent migration agent. She has made these claims, which are no more than bare assertions, in an amended application. Annexing the amended application to an affidavit, particularly an affidavit that does not comply with the Court rules, does not elevate those claims to the status of evidence. In any event, even if the Applicant was able to substantiate a claim that she had been deceived or otherwise failed by a migration agent, in my view, this would not be sufficient to show any jurisdictional error on the part of the Refugee Review Tribunal.
There is no evidence that the Tribunal was in any way aware that the Applicant was represented by a migration agent. The application for review referred to the Applicant's residential address and the Applicant's mobile telephone number. All correspondence was forwarded to the address given to the Tribunal by the Applicant. The Applicant said that she passed all this correspondence on to the migration agent. The Tribunal telephoned the Applicant several days prior to the hearing, to see if she planned to attend. The Applicant concedes that the Applicant telephoned her to say that she had to attend a hearing. The Tribunal records show that the person to whom the Tribunal officer spoke indicated that the Applicant was going to attend and needed a Mandarin interpreter. In my view, the Tribunal was entitled to believe that the Applicant was going to attend the hearing that was scheduled.
When the Applicant did not attend the hearing, without any explanation whatsoever, the Tribunal was entitled to exercise its discretion under s.426A of the Migration Act to proceed to a decision on the review without taking further action to enable the Applicant to appear before it.
Ground 1(e) of the Applicant's amended application claims that the Applicant's failure to appear was not voluntary. I do not accept that. It is clear, from what the Applicant has told the Court today, that she chose not to attend the hearing. She knew it was on. She told the Court that she received the telephone call and was even given the address of the Tribunal. She said she even passed on the address of the Tribunal to the migration agent. The Applicant was not able to answer a question from the bench as to why she thought that a migration agent would not know the address of the Refugee Review Tribunal, which would seem to be a basic requirement, but she said that she passed the address on so that the agent would be able to represent her at the hearing. The Applicant's failure to appear at the hearing was not involuntary. She knew it was on and she chose not to attend.
The Refugee Review Tribunal can hardly be held to have committed any jurisdictional error when the Applicant chose to rely on the advice of her purported migration agent rather than attend the hearing which the Refugee Review Tribunal invited her to attend. It is well-established that where the Tribunal writes to an applicant, advising the applicant that it was unable to make a decision in the applicant's favour, on the basis of the information before it, and invites the applicant to attend a hearing, which the applicant chooses not to do, the inevitable consequence, or the almost inevitable consequence, will be the rejection of the application (see SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16]).
I also note that the Tribunal wrote to the Applicant on 10th October 2006, under the provisions of s.424A of the Migration Act, inviting her to comment on certain information. The letter clearly advised the Applicant that, if she did not comment on the information in writing, and in English, by 22nd November, then the Tribunal may proceed to make a decision on the review without further notice. In my view, the Tribunal would have been entitled to decide the matter on 3rd November 2006, under the provisions of s.424C of the Migration Act. What the Tribunal did do was wait until after the time of the scheduled hearing, on 3rd November, before making a decision to decide the review under the provisions of s.426A of the Migration Act.
There is no breach of s.424A or s.425 or s.426A of the Migration Act. The Tribunal gave the Applicant ample opportunity to appear at the hearing, writing to her at the address that she gave in her application, and telephoning her at the telephone number that she gave in her application. The Tribunal can in no way be responsible for the fact that the Applicant chose not to take the opportunities given to her by the Tribunal but to follow the advice of a purported migration agent.
The Applicant is not legally represented, although she had the benefit of having an amended application prepared for her by counsel under the pilot legal advice scheme. I am mindful of the fact that the Applicant is not legally represented. I have read through the decision, independently of the applicant's claims, in order to ascertain whether there is any arguable case for a jurisdictional error not referred to by the Applicant. I am unable to discern any jurisdictional error.
The decision of the Tribunal is a privative clause decision, as set out in s.474 of the Migration Act. Consequently, it is not subject to orders in the nature of prohibition, mandamus or certiorari. The application is dismissed and I will order that the title of the First Respondent is changed to Minister for Immigration & Citizenship.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 6 June 2007
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