SZKLS v Minister for Immigration
[2007] FMCA 1736
•15 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKLS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1736 |
| MIGRATION – Whether applicant disadvantaged by not having a copy of the Court Book before the hearing – applicant must establish their case – failure to provide information – failure to attend hearing – assessment of evidence is not information within s.424A. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, 426A, 441A, 474 Migration Regulations 1994 (Cth), reg.4.35D |
| NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 |
| Applicant: | SZKLS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1115 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 15 October 2007 |
| Date of last submission: | 15 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms M. Palmer of Sparke Helmore |
ORDERS
The application is dismissed.
The name of the first respondent is amended to the Minister for Immigration and Citizenship.
The Refugee Review Tribunal is joined as the second respondent.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1115 of 2007
| SZKLS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 15 February 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
On 29 September 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed to fear persecution by the Chinese authorities on the basis of his Falun Gong practice (Court Book “CB” 26).
The application was refused by a delegate of the first respondent on 21 October 2006 (CB 28) and by the Tribunal on review on 15 February 2007 (CB 47).
The matter is now before this Court pursuant to an application for judicial review filed on 4 April 2007.
Issues for determination
The issues before the Court are as follows:
·whether the Tribunal fell into jurisdictional error;
·whether the applicant was denied procedural fairness;
·whether the Tribunal's assessment of evidence is “information” within s.424A.
The application
In his application, the applicant set out three grounds as follows:
(1)Jurisdictional error has been made.
(2)Procedural fairness has been denied.
(3)RRT did not give me the letter to explain doubts.
The applicant re-stated the grounds for his fears in his affidavit filed on 4 April 2007.
The applicant gave oral evidence that he did not receive a copy of the Court Book or the written submissions of the first respondent. The Court notes that both were sent to the applicant at his correct postal address. The written submissions for the first respondent were translated to him today. Having regard to the grounds of the application and the content of the written submissions (which relate mainly to matters of law) the Court finds that the applicant is not disadvantaged by not having a copy of the written submissions before today. The Court finds also that the applicant has not been disadvantaged by not receiving a copy of the Court Book.
Findings of the Court in relation to the grounds in the application and affidavit
Grounds one and two allege jurisdictional error and denial of procedural fairness. For the reasons stated below, the Court finds no breach of s.424A or s.425 and the latter’s attendant provisions. By s.422B, Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule that applied to this matter. A breach of that Division has not been established. No jurisdictional error including a denial of procedural fairness has been established. Grounds one and two are rejected.
Ground three – the reason the Tribunal affirmed the decision under review is that the applicant failed to provide sufficient detail to establish his case. An applicant must establish their case. The Court agrees with the following statement of the Tribunal at CB 51.2:
The claims he made about his circumstances were expressed very briefly, and lacked crucial details. Apart from his own assertions, the Tribunal cannot even be satisfied that he is a member of a political or religious group in China, or that he has suffered harm amounting to persecution. It is unclear from his account whether the reason for any claimed difficulties was his claimed beliefs, or some other reason. Given the limited evidence before it, the Tribunal is unable to establish the relevant facts.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.
The Court approves of the following submissions in another matter:
The reason that the applicant failed to establish this matter, include that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.
The applicant was invited to attend the hearing but declined that invitation (CB 42) after having been alerted to his failure to provide sufficient information (CB 40).
As submitted for the first respondent:
The hearing invitation sent by the Tribunal to the applicant and dated 28 November 2006 (at CB 40-41):
(a)invited the applicant to appear before it to give evidence (s.425);
(b)gave the applicant notice of the specified the day [sic], time and place at which the applicant was scheduled to appear;
(c)was given to the applicant by one of the means specified in s.441A – namely s.441A(4) because it was dispatched within 3 working days by prepaid post to the last address for service nominated by the applicant;
(d)provided a period of notice to the applicant that was at least the prescribed period of 14 days provided for by reg. 4.35D of the Migration Regulations 1994 (Cth)(“the Regulations”); and
(e)contained a statement to the effect of s.426A (regarding the options available to the Tribunal if the applicant failed to appear before it).
The Court accepts those submissions.
When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].
The applicant consented to the Tribunal making a decision without taking any further action to allow or enable the applicant to appear before it (CB 42). The Act authorises this (s.426A), and that is how the Tribunal proceeded. The result is that the Tribunal was not satisfied, on the material before it, that the applicant had a well-founded fear of persecution within the meaning of the Convention. That assessment of the evidence is not “information” within s.424A, nor is the conclusion or observation about the lack of detail provided by the applicant (CB 51.5): SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].
These matters were not required to be put in a letter under s.424A, nor were any other matters; the reason for affirming the decision under review was the lack of detail supplied by the applicant. There was no breach of s.424A. Ground three is rejected.
The assertions of fact in the applicant’s affidavit seek a review of the merits, which is not available. The function of this Court is to decide whether there has been an error of law made by the Tribunal and not review findings of fact by the Tribunal. The affidavit raises no valid grounds for review.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 7 November 2007
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