SZKOQ v Minister for Immigration - [2007] FMCA 1232

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKOQ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1232

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant a citizen of the People's Republic of China who applied for a protection visa under a false name – where applicant did not attend the Tribunal hearing – applicant sent a faxed request for an adjournment and a Freedom of Information request an hour before the scheduled hearing – no reviewable error.

PRACTICE & PROCEDURE – Behaviour of migration agent unreasonable to the point of being reprehensible and irresponsible.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425A, 474

SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78
SZFML v Minister for Immigration & Multicultural Affairs [2006] FCAFC 152
SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 251

Applicant:

SZKOQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1378 of 2007

Judgment of:

Scarlett FM

Hearing date:

17 July 2007

Date of last submission:

17 July 2007

Delivered at:

Sydney

Delivered on:

17 July 2007

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Ms Mitchelmore

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1378 of 2007

SZKOQ

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. The decision was signed on 27^th March and handed down on 5^thApril 2007. The Tribunal set aside the decision of a delegate of the Minister refusing to grant a protection visa and substituted a decision that the protection visa application was not valid and could not be considered.
The Applicant by his application filed on 1^st May 2007 seeks judicial review of that decision. He seeks the following orders:
1)a writ of certiorari quashing the decision; and
2)a writ of mandamus compelling the Tribunal to rehear and redetermine the matter according to law.
I have explained to the Applicant that in order to set aside the decision of the Tribunal the Court must be satisfied that the decision is affected by jurisdictional error. As to the order for a writ of mandamus, which the Applicant seeks, I am not satisfied that if I were persuaded to make such an order, that it would extend to requiring the Tribunal to rehear the application. Any order in the nature of mandamus would require a redetermination according to law. Whether or not the application is reheard is a matter for the Tribunal itself.

Background

The Applicant is a citizen of the People's Republic of China who arrived in Australia on 27^th March 1996. He applied for a Protection (Class AZ) visa on 10^th April 1996. He applied under a false name but on 8^th October 1997 he wrote to the Department advising that he had used a false name because he was afraid he would be arrested or would be punished if he left Australia. He gave his correct name and date of birth.
A delegate of the Minister refused to grant a visa to the Applicant on

5 March 1997. However, because the Department subsequently determined that the letter notifying the Applicant of the decision had been affected by error, the Department renotified the decision to the Applicant on 13^th December 2006. On 19^th January 2007 the Applicant applied to the Tribunal for a review of the delegate's decision. What is noteworthy is that no further documentary evidence was provided to the Tribunal with the application.
The Tribunal wrote to the Applicant on 31^st January 2007 inviting him to attend a hearing on 8^th March. The Applicant completed a Response to Hearing Invitation which was forwarded to the Tribunal by what is clearly the Applicant's migration agent. The Response to Hearing Invitation indicated that the Applicant needed an interpreter in the Mandarin language.
The Applicant attended the hearing on 8^th March. He brought with him a copy of his Chinese passport. At the hearing, however, it transpired that the Applicant told the Tribunal that he was from Fuzhou in China and spoke the Fuzhou dialect. The Tribunal adjourned the hearing to enable a Fuzhou interpreter to attend.
The Tribunal wrote to the Applicant originally on 8^th March inviting him to attend a hearing on 4^th April. However, on 13^th March the Tribunal wrote to the Applicant again. This letter noted the unavailability of the interpreter requested by the Applicant on 4^th April and advised the Applicant that the hearing had been rescheduled to

20 March. On the day of the hearing the Applicant's migration agent sent a fax to the Tribunal. That fax advised that:
The Applicant will not be attending the hearing today at 2.30. He would like the Tribunal to send him a copy of all the relevant documents in relation to his review application. Enclosed please see a completed FOI request form.
The applicant asks the Tribunal to reschedule his hearing to a later time after he receives the documents indicated in the FOI request.[1]
[1] See Court Book at page 61
That request was dated 20^th March 2007, which, as I said, was the date of the Tribunal hearing. The Applicant through his migration agent forwarded a Request for access to documents pursuant to the Freedom of Information Act 1982. In that request, which appears to have been faxed to the Tribunal at 1:36pm on 20^th March, less than one hour before the scheduled time for the hearing, the Applicant requested:
All relevant documents relating to my review application including information that the Tribunal obtained from DIAC.
The Tribunal did not accede to this request for a postponement of the hearing. The Tribunal, noting that the Applicant did not appear, made the decision 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

The decision was handed down on 28^th March 2007. In the decision record, a copy of which can be found in the Court Book at pages 74 through to 79 inclusive, the Tribunal noted the matters that had occurred and noted that the protection visa application lacked critical information relating to the reasons why the Applicant claimed to be a refugee. The Tribunal went on to find:
The applicant therefore failed to comply with the instructions on it as the Act and regulations required. Furthermore, because the completed form contained no "specific claims under the Refugees Convention", a primary criterion for the grant of a protection visa, it therefore failed to provide information necessary to enable the substantive issues raised by the application to be decided. In these circumstances the Tribunal is satisfied that there has not been substantial compliance with the form, within the meaning of s.25C of the Acts Interpretation Act 1901. Therefore, the Tribunal finds that the application is not valid and cannot be considered.[2]
[2] See Court Book at pages 77-78
The Tribunal set aside the delegate's decision refusing to grant a protection visa and substituted a decision that the protection visa application is not valid and cannot be considered.

The application for judicial review

The Applicant in his application for review sets out one ground, namely, that the RRT decision was affected by jurisdictional error because the Refugee Review Tribunal failed to comply with s.425A of the Migration Act. The particulars of that claim is that the Tribunal allegedly acted in breach of s.425A, which provides that:
The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
According to the invitation letter dated 13^th March 2007, the Applicant was required to appear before the Tribunal on 20^th March 2007. The Applicant was given less than 14 days' notice. No other ground is set out in the application and the Applicant did not file any written submissions.
He attended the Court unrepresented and unaccompanied. He maintained his line that the Tribunal did not notify him of the hearing date and time and did not give him sufficient time to attend the hearing. He complained that the Tribunal had all of his documents and personal details, including his passport, and that they had not provided him with copies of all that material.
Counsel for the Respondent Minister, Ms Mitchelmore, tendered a letter to the Applicant's migration agent dated 26^th March 2007 from the Tribunal to the Applicant. The letter related to the Applicant's Freedom of Information Request received on 20^th March 2007 and noted that the Freedom of Information officer released in full all but one folio of the 57 folios requested. The folio which was not released in full was partially released on the basis that it contained material which would involve the unreasonable disclosure of personal information about a person and so was exempt under s.41 of the Freedom of Information Act, but deletions of the exempt material were made and a new copy was released in accordance with s.22 of the Freedom of Information Act. The Applicant, when this was raised with him, appeared to be unaware of that decision.
The Applicant presented no other grounds and my independent investigation of the decision and the supporting material in the Court Book does not suggest to me that any other grounds are arguable.
Counsel for the First Respondent Minister, Ms Mitchelmore, submitted that the Applicant's only ground of review, namely, a failure to comply with s.425A of the Migration Act, had not been made out. She submitted that the Tribunal's letter inviting the Applicant to attend the hearing on 8^th March complied with s.425A, including the notice requirement (see sub-section 425A(3) and reg. 4.35D of the Migration Regulations).
In informing the Applicant of the new hearing date, the Tribunal did not have to recomply with the requirements of s.425A of the Act. She submitted, and I believe correctly, that the case is not dissimilar to SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78, albeit that in that case the hearing was rescheduled before the date of the original hearing because of telecommunications difficulties. In SZEFM Bennett J stated at [12]:
‘Adjourn’ can mean to defer or put off or suspend in respect of something that has already commenced (see Shorter Oxford English Dictionary (fifth edition) and Macquarie Dictionary (revised third edition). It can also mean to defer or postpone to a future meeting of the same body (Macquarie Dictionary).
The appellant has not identified any error in his Honour's reasoning. The letter of 4 June cited the fact that the arranged hearing could not proceed. In effect, it was deferring the hearing and allocating a new hearing date. In context, the expression "your new hearing" referred to a new hearing date, rather than to a new hearing. If the hearing had been adjourned, there was no prescribed time for notification of the adjourned hearing date.
The Full Court discussed that decision of Bennett J in SZFML v Minister for Immigration & Multicultural Affairs [2006] FCAFC 152 and also considered the decision of Conti J in SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 251 in which Conti J held that the notice requirements in sub‑section 425A(3) did not apply to notification of a rescheduled hearing where that rescheduling occurred at the behest of the Applicant. The Full Court concluded at [82]:
It is open to the Tribunal in the conduct of a hearing to adjourn it from time to time. If express authority were necessary it would be provided by s.427. In any event there is an implied incidental power for the Tribunal to do so in order to give practical effect to its obligation to provide a hearing. The power of the Tribunal to reschedule a hearing of which notice has been given is of the same character. Provided the notice of the rescheduling is reasonable there is no requirement, applicable to that procedure, for the application of the minimum prescribed period applicable to the notice required by s.425A.
In my view, it is correct to say that the prescribed period of notice did not apply to the Tribunal's letter to the Applicant notifying him of the change to the hearing date. I am satisfied that the Applicant was given a reasonable period of notice, being seven days. It follows that the Applicant's only ground of review should be dismissed.
It should be made clear, however, that the sequence of events showing the actions of the Applicant's migration agent appear to me to be unreasonable to the point of being reprehensible and irresponsible. The Applicant was represented by a migration agent and had been so represented at least since the filing of the application for review on 19^th January 2007. It was the migration agent who completed the Response to Hearing Invitation in respect of the hearing scheduled for 8^th March. That document dated 1^st March 2007 indicated that the Applicant needed an interpreter in the Mandarin language. A copy of that document appears at page 48.
Indeed in the application for review lodged at the Tribunal on

19 January 2007, the migration agent indicated that he was competent in the English language and the Mandarin language and had faithfully interpreted all of the contents of the form into the Mandarin language to the Applicant and had faithfully interpreted the Applicant's response to all questions in this form into English. That document signed by the migration agent can be found at pages 41 through to 44 of the Court Book.
Notwithstanding these assurances from the migration agent, when the Applicant attended the hearing, not I might point out accompanied by the migration agent, the Applicant told the Tribunal Member that he was from Fuzhou and sought an interpreter in that dialect. That matter is referred to in the Tribunal decision at page 77 of the Court Book. It was the Tribunal that decided then to adjourn the hearing because of the Applicant's request to have an interpreter in that dialect.
It is questionable, to say the least, why it is that on two occasions since 19^th January the Applicant's migration agent had represented to the Tribunal that the Applicant required an interpreter in the Mandarin language, that it was not until the day of the original hearing on 8^th March 2007 that it was the Applicant who informed the Tribunal that he required an interpreter in the Fuzhou dialect. In my view, the behaviour of either the Applicant or the migration agent is called into question. The Tribunal rescheduled the hearing and organised an interpreter in the Fuzhou dialect.
On the day of the hearing, less than one hour before the hearing was scheduled to start, the Applicant's migration agent faxed a memorandum to the Tribunal advising that the Applicant would not be attending the hearing that day at 2:30pm. The Applicant asked the Tribunal to reschedule the hearing to a later time after he received the documents in the FOI request which was made available to the Tribunal at that same time, less than one hour before the hearing. The documents which were requested were:
All relevant documents relating to my review application, including information that the Tribunal obtained from DIAC.
A copy of that document is found at page 63 of the Court Book. It is clear from the letter from the FOI officer of the Department to the migration agent which forms exhibit 1 that there were a significant number of documents, namely, folios 1 to 57, on the Tribunal's file. In my view, the actions of the migration agent in informing the Tribunal that the Applicant would not be attending a hearing that had been adjourned at the Applicant's request and demanding under the Freedom of Information Act virtually all the documents in the Applicant's file is an act of gross irresponsibility. If these documents were so important, one can only ask why the migration agent did not seek these documents prior to the original hearing which was scheduled for 8^th March. If these documents were so important, one can only ask why the Applicant's migration agent did not seek them under the Freedom of Information Act when the application for review by the Refugee Review Tribunal was filed on 19^th January 2007. In my view, the actions by the migration agent were not only irresponsible, but show a monstrous lack of preparation on the part of the migration agent.
In my view, the Tribunal did comply with the Applicant's request. The Tribunal did provide an interpreter who is fluent in both Mandarin and Fuzhou. The Tribunal's hearing record for 20^th March shows that there was such an interpreter present who was fluent in Mandarin and Fuzhou. In fact, it appears to be the interpreter who is here today. It follows that this application will be dismissed. It will be dismissed because there is no jurisdictional error. Because there is no jurisdictional error, it is a privative clause decision as defined by sub‑section 474(2) of the Migration Act. Consequently, the decision is final and conclusive and it is not therefore subject to orders in the nature of certiorari or mandamus which the Applicant seeks.
The application will be dismissed but before I dismiss the application I would indicate that the Court is so dissatisfied with the apparent behaviour of the migration agent, who appears as Mr Lanshan Gao trading as AuVisAsia Education and Trading Co of Suite 227/368 Sussex Street, Sydney, New South Wales 2000, that in my view it is appropriate for a copy of this decision to be forwarded to the Migration Agents Registration Authority. In my view, the authority should investigate the competence of the migration agent to continue to carry on in business.
This is a most appropriate matter for costs in my view and the figure sought, $1,500.00, is an extraordinarily modest figure.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 27 July 2007