SZKIL v Minister for Immigration

Case •

[2007] FMCA 894

•

22 May 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKIL v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 894
MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa –applicant a citizen of China claiming fear of persecution as a Falun Gong practitioner – whether leave should be granted to extend the time for filing an application not made within 28 days of notification.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424A, 425, 477
SZIVA v Minister for Immigration & Anor [2006] FMCA 1494 followed
SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78
SZEGX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 166
SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238
SZBZO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 494
NACB v Minister for Immigration [2003] FCAFC 235
NATC v Minister for Immigration [2004] FCAFC 52
Applicant: SZKIL
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 822 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 Gazi
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. Time for filing application for review of the decision of the Refugee Review Tribunal handed down on 4 January 2007 is extended.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 822 of 2007

SZKIL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. The substantive application before the Court is an application for review of the Refugee Review Tribunal that was handed down on 4th January 2007.  The Applicant, in his application filed on 12th March 2007, seeks an extension of time in which to file his application, on the basis that he did not receive notification of the decision until a later date. 

  2. In the original application, the Applicant says that the date when notification of the decision was received was 4th January 2007. That was the date when it was handed down.  In his affidavit filed at the same time as his application, the Applicant says, at paragraph 3:

    The reason for me to seek this special leave is that the decision from the Refugee Review Tribunal was made on 4 January 2007 and I have not received the notice of decision from the Refugee Review Tribunal until 8 March 2007 and therefore the prescribed time limit for review application to the Federal Court has expired. 

  3. Due to the discrepancy between those two statements, the Applicant was asked to give oral evidence.  After some cross‑examination, the Applicant said that he had first been informed of the nature of the decision on 29th January 2007 but had never received a physical copy of the document. Quite clearly, the Applicant, or someone on his behalf, must have received a copy of the decision, at least by


    12th March, as a copy of it is annexed to his affidavit. 

  4. For the Respondent Minister, Ms Gazi, solicitor, has referred me to the decision of Smith FM in SZIVA v Minister for Immigration & Anor [2006] FMCA 1494. In that decision, his Honour examines the concept of notification in the context of s.477 of the Migration Act in some detail in [24]-[47]. It is clearly set out in [46] that s.477 requires the Court to investigate the date when the applicant to the Court personally received notice of the decision and any accompanying statements. His Honour went on to say:

    The notice required to have been received is notice of the existence and availability to the applicant of the decision and any relevant documents. I do not consider that the language requires the Court to be satisfied in all cases that, in fact, the applicant has received actual physical possession of such documents. If an agent has been employed to receive and advise in relation to decisions, and has communicated and explained the notification to the applicant, I consider that the Court would be able to be satisfied that there has been actual notification. It is enough that a point of time can be located when the relevant documents have passed into the possession or control of the applicant, and the applicant was able, if he or she so desired, to read and take advice upon them.

  5. In my view, with respect, Smith FM has clearly set out the requirement for the Court to be satisfied about notification, and I see no reason to depart from his Honour's reasoning.  I propose to follow the decision in SZIVA and, accordingly, I am satisfied, from the evidence that I have heard today, that the Applicant was notified of the Tribunal decision on 29th January 2007. 

  6. That, of course, leaves the question as to whether, under s.477(2) of the Migration Act, the Court should grant leave to file the application. It is put by Ms Gazi, for the Respondent Minister, that the Court should not grant such leave, even though it would be possible to do so because the application indicates there are no reasonable prospects of success. I am satisfied that, even though the case is a very weak case, it is in the interests of the administration of justice for the application to be heard on its merits, such as they are.

  7. The Applicant is present in Court and has the assistance of an interpreter in the Mandarin language. I have indicated that I would grant leave to extend the time for filing of the application for review. 

Background

  1. The Applicant has made oral submissions to the Court, indicating that he had a well-founded fear of persecution because he was a Falun Gong practitioner, and he left China for that reason and he is not to return for that reason.  He acknowledged that he had not attended the Tribunal hearing but indicated that he had not been notified of the time, date and place of that hearing. He believes that the Tribunal should have allowed him the opportunity to present his case, and he has sought to present photographs and other documents to the Court in support of his application to have been a Falun Gong practitioner.  I indicated to the Applicant that the Court was unable to take fresh evidence, as this evidence had not been before the Tribunal. 

  2. As to the Applicant's failure to attend the hearing, the Applicant had filed an application for review of a decision of the delegate of the Minister to refuse him a protection visa on 25th September 2006.  In that application he gave his residential address and indicated that he wished documents to be forwarded to him at a Post Office Box in Haymarket in the city.  The Tribunal duly wrote to the Applicant at the Post Office Box address. 

  3. The Tribunal wrote to the Applicant on 26th September at that address but the letter was returned to the Tribunal. A Tribunal note dated


    3rd October 2006 indicated that the acknowledgement letter had been opened, placed in another envelope and sent back to the Tribunal. 


    A copy of the envelope addressed to the Tribunal can be found at page 51 of the Court book. 

  4. The Tribunal then, noting that the Applicant had given both a postal and a residential address and that the acknowledgement letter was returned from the postal address, decided that the Applicant's address with respect to his review application would be changed to his residential address. On 3rd October 2006, the Tribunal wrote to the Applicant at his residential address, inviting him to attend a hearing on 23rd November 2006.  No reply was received and the Tribunal file note showed that a movement check was done, showing that the Applicant was still in Australia.  No migration adviser had been nominated and the Applicant had not provided a contact telephone number. 

  5. The Applicant did not attend the hearing and, in the circumstances, the Tribunal decided to exercise its power 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 it.

The Tribunal’s findings and reasons

  1. A copy of the Tribunal decision is set out at pages 63-71 of the Court book. A summary of the claims and evidence can be found on pages 66-68. The Tribunal's findings and reasons, which begin at page 68 of the Court book, noted that the Tribunal was satisfied that the Applicant was a citizen of the People's Republic of China, and was supported in that finding by a certified copy of the Applicant's passport.

  2. The Tribunal noted the Applicant's claims to be a practitioner of Falun Gong and to have been dismissed from his work unit because of his part in the Falun Gong movement, and that his activities had been reported to the authorities.  The Tribunal was not satisfied, in the light of the lack of evidence before it, that the Applicant was a genuine adherent of Falun Gong or that he would face harm in the reasonably foreseeable future, upon return to the People's Republic of China.

  3. Accordingly, the Tribunal was not satisfied that the Applicant had a well‑founded fear of harm for reason of his religion or for any other Convention reason in the reasonably foreseeable future, and affirmed the delegate's decision not to grant the Applicant a protection visa.

The application for judicial review

  1. The Applicant's application sets out three grounds of review: 

    a)First, it is claimed that the Tribunal failed to carry out its statutory duty, in that the Tribunal was required to provide particulars of the information that was the reason, or part of the reason, for affirming the decision, under s.424A of the Migration Act.

    b)Second, the Applicant claims that the Tribunal did not properly consider, in assessing the chance of his persecution and persecuted on his return to China, based on the membership of a particular social group in China. 

    c)Third, the Applicant claims that the Tribunal's satisfaction that he was not a refugee was not based upon reason which provided a rational or logical foundation for this finding.

  2. The solicitor for the Minister, Ms Gazi, submits that the grounds do not set out any jurisdictional error and, indeed, there is no jurisdiction in the Tribunal's decision, either on the bases alleged in the application or on an independent reading of the decision. As to the first ground, namely, a failure to comply with s.424A of the Migration Act, it is submitted that this ground of review is misconceived because there was no information before the Tribunal that ought to have been put to the Applicant under s.424A.

  3. The Tribunal made it clear that the reason for its decision was the fact that the Applicant's claims were unsupported and lacking in detail and that the Tribunal was unable to question the Applicant about his claims because of his non-attendance at the hearing, and, as a result, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution. Such reasoning does not engage s.424A of the Migration Act, and I am referred to the decisions, inter alia, of SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 at [23], and SZEGX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 166 at [10], SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 at [9]-[14], and SZBZO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 494. The submission correctly states the position. There is no information before the Tribunal that needed to have been put to the Applicant under s.424A, and the Applicant's first ground fails.

  4. The second ground is, in my view, an allegation that the Tribunal failed to assess the Applicant's claims against the category of a particular social group, presumably, practitioners of Falun Gong. The Applicant does not identify the particular social group but I am taking it to mean Falun Gong practitioners. The fact is that the Tribunal was not satisfied that the Applicant's evidence was sufficient to enable him to meet the criteria set out in s.36(2) of the Migration act, that the Applicant was a person to whom Australia owed protection obligations under the Refugees Convention and the Refugees Protocol. The fact that the Applicant did not provide sufficient information, either by oral evidence or in writing, led to the Tribunal's lack of satisfaction. The Applicant's second ground, therefore, must fail.

  5. The Applicant's third ground is that the Tribunal's decision was not based upon reasoning which provided a rational or logical foundation for this finding.  Even if the decision did show signs of irrationality or illogicality, and, in my view, it does not, it is well-established that illogicality or irrationality do not, of themselves, constitute jurisdictional error (see NACB v Minister for Immigration [2003] FCAFC 235 at [22]-[29], and NATC v Minister for Immigration [2004] FCAFC 52 at [25]-[27]). The Applicant's third ground fails.

  6. The Applicant is not legally represented and I have conducted an independent reading of the Tribunal's decision and supporting material, in order to ascertain whether an arguable case can be made for some other form of jurisdictional error.  I am unable to discern any.  In my view, the Tribunal was within its rights to write to the Applicant at his residential address when the letter forwarded to the nominated postal address, being a Post Office Box, was returned to the Tribunal.  There is no jurisdictional error there. 

  7. I am unable to discern any jurisdictional error and the Tribunal decision is a privative-clause decision, as defined in s.474(2) of the Migration Act. Consequently, remedies such as certiorari and mandamus are not open to the Applicant in this case. It follows that the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  7 June 2007

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