SZKPS v Minister for Immigration

[2007] FMCA 1611

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKPS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1611

MIGRATION – Whether s.425 was complied with – whether error as to date on passport was of relevance to Tribunal decision

Migration Act 1958 (Cth), ss.425, 425A, 426, 426A, 441A, 474
Migration Regulations 1994 (Cth), reg.4.35D

SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287

Applicant:           SZKPS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1486 of 2007

Judgment of: Turner FM

Hearing date: 19 September 2007

Date of last submission: 19 September 2007

Delivered at: Sydney

Delivered on: 19 September 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L. Buchanan of Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent fixed in the amount of $3,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1486 of 2007

SZKPS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 10 May 2007 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 16 March 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.

Background

1. On 8 November 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed to fear persecution from the Chinese authorities because of his Falun Gong practices (Court Book “CB” 59).

2. This application was refused by a delegate of the first respondent on 18 November 2006 (CB 30) and by the Tribunal on review on 16 March 2007 (CB 56).

3. The matter is now before this Court pursuant to an application for judicial review filed by the applicant on 10 May 2007.

Issues for determination

1. The issue before the Court is whether the Tribunal complied with s.425 of the Act.

2. An additional issue has been raised in oral submissions as to the import of a passage at CB 59, where the Tribunal recounted details from the delegate’s decision. It is said that the statement is incorrect as the applicant obtained a passport in his own name on 27 November 2002, and not on 21 February 2006, as stated on CB 59. That ground will be considered later in this decision.

The application

1. In his application, the applicant set out one ground as follows:

   The Refugee Review Tribunal committed jurisdictional errors of law in that it failed to comply with Section 425(1) of the Migration Act 1958, which says the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

Findings of the Court in relation to the ground in the application

1. The Court finds that the Tribunal sent the applicant a letter pursuant to s.425 of the Act. That letter (at CB 47):

   ·Informed the applicant that the Tribunal was unable to make a decision in his favour on the information before it, and invited him to attend a hearing in order to submit further evidence and argument in support of his claims: s.425;

   ·Provided the applicant with notice of the specified day, time and place at which the applicant was scheduled to appear: s.425A(1);

   ·Was sent to the applicant by post to the last address for service nominated by the applicant: s.441A(4)(i) (refer to CB 46, received and stamped by the Tribunal on 17 January 2007);

   ·Provided a period of notice to the applicant that complied with the prescribed period of 14 days: reg.4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”); and

   ·Contained a statement to the effect of s.426A regarding the options available to the Tribunal if the applicant failed to appear at the scheduled hearing.

   Accordingly, the invitation complied with the statutory requirements contained in Regulation 4.35D and ss.425(1), 425A, 426, 426A and 441A(4) of the Act. No breach of those provisions occurred.

2. As the applicant did not attend the scheduled hearing (CB 50), the Tribunal was entitled to proceed in accordance with s.426A of the Act. The Tribunal was not obliged to accept the applicant’s claims.

3. 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].

4. It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: SZIGQ (ante) per Downes J at [5].

5. No breach of s.425 has been established. The ground of the application is rejected.

6. The applicant complained at the hearing about a passage at CB 59, where the Tribunal recounted considerations by the delegate and incorrectly stated that the applicant had obtained a passport in his own name on the 21 February 2006. Court Book 29 shows that the passport was actually issued on 27 November 2002. However, that error of date had no impact on the decision of the Tribunal. The reason for the decision of the Tribunal is set out in the last paragraph at CB 60:

   Given the lack of details in the applicant’s claims and the lack of opportunity to explore the details in these claims or their veracity, the Tribunal is not satisfied on the basis of the available evidence that the applicant has been or is a practitioner of Falun Gong.

7. The date of the issue of the passport, therefore, had no relevance to the reasons for decision of the Tribunal. The passage at CB 59 is set out as part of the “Claims and Evidence” and not “Findings and Reasons” of the Tribunal. This ground is rejected.

Conclusion

1. 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.

2. Accordingly, the application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate:  Mary Giang

Date:  27 September 2007