SZKPT v Minister for Immigration - [2007] FMCA 1129

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKPT v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1129

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application- no arguable case – observations on the prudence of the Tribunal in contacting the applicant by telephone prior to the Tribunal hearing.

Migration Act 1958 (Cth), s.426A

Applicant:

SZKPT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1491 of 2007

Judgment of:

Driver FM

Hearing date:

16 July 2007

Delivered at:

Sydney

Delivered on:

16 July 2007

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents:

Ms T Quinn
DLA Phillips Fox

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1491 of 2007

SZKPT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 22 March 2007 and handed down on 12 April 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China and had made claims of persecution based upon his practice of Falun Gong. He arrived in Australia on 3 December 2006 and applied to the Minister's Department for a protection visa on 2 January 2007. A delegate of the Minister refused that application on 1 February 2007. On 15 February 2007 the applicant applied to the Tribunal for review of that decision. The Tribunal was unwilling to make a favourable decision on the basis of the documents. On 22 February 2007 the Tribunal wrote to the applicant inviting him to a hearing on 20 March 2007. He did not respond to that invitation. On 14 March 2007, at the direction of the presiding member, a Tribunal officer telephoned the applicant and asked him whether he would be attending the hearing or not. He was unsure and said he would call back the following day. He did not do so. The applicant did not attend at the scheduled time of the hearing and the Tribunal elected to proceed in his absence pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal proceeded to consider the applicant's claims but found on the limited material before it that it could not be satisfied that the applicant qualified for a protection visa. The Tribunal was concerned in particular about the lack of detail in the applicant's claims.
These proceedings began with a show cause application filed on 9 May 2007. The applicant asserts actual notification of the Tribunal on 16 April 2007. On that basis, I find that the application was filed within time.
The application is supported by an affidavit which I received as evidence. It simply attached a copy of the Tribunal decision. I also have before me as evidence the court book filed on 6 June 2007.
The applicant failed to attend in person this afternoon's hearing at 2.15pm. I received as an exhibit (exhibit R1) a letter written to the applicant on 12 June 2007 reminding him of today's court fixture at John Maddison Tower at 2.15pm. I also note that the applicant attended in person the first court date conducted by me on 7 June 2007. He had the assistance of a Mandarin interpreter. It was at that time that I directed that the matter be listed before me for hearing today at 2.15pm at John Maddison Tower.
I adjourned briefly while the applicant was telephoned on a mobile telephone number he had provided in his application. That was successful. The applicant told me by telephone that he had been told by his migration agent that his court hearing was next Monday. No involvement of a migration agent had previously been disclosed. The applicant was not able to explain why he preferred the advice of his migration agent to what I had told him on 7 June 2007 and what was confirmed in the letter from the Minister's solicitors dated 12 June 2007[1]. He did say that he cannot read English. He cannot recall the name of the migration agent and does not know her address, although he has apparently met her on several occasions on the street somewhere near the Bank of China and light rail tracks in Haymarket. Although the applicant has not, in my view, advanced a plausible reason why he did not attend court in person today, I elected to hear him by telephone.
[1] The applicant confirmed receipt of that letter.
The applicant confirmed that his concern about the Tribunal decision is that the Tribunal proceeded in his absence. The applicant told me that on the day of the scheduled Tribunal hearing he went looking for the Tribunal premises but could not find them. He then went to see his agent (apparently the same one who told him that today's court hearing was next Monday) and she told him that it was too late to attend the Tribunal hearing. However, in his application to the Court the applicant says that he did not attend the Tribunal hearing because he was sick with a stomach ache and was ill in bed all day. He says in his application that he could not write to the Tribunal but had asked his friends to call the Tribunal to get another chance. He does not say whether that in fact occurred.
I pointed out to the applicant that he had made inconsistent statements in saying in his application to the Court that he was sick in bed all day and then saying by telephone today that he went to attend the Tribunal hearing but could not find the right place. He did not explain the inconsistency to my satisfaction. He told me that he had asked his migration agent to telephone the Tribunal and expressed surprise when I told him that this did not appear to have occurred. Further, the existence of a migration agent was not disclosed to the Tribunal in the applicant's review application (court book, pages 45 to 48).
In its decision and reasons (court book, page 62) the presiding member says:
On 22 February 2007 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 20 March 2007. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received.
On 14 March 2007 an officer of the Tribunal contacted the applicant by telephone to ask him whether he wished to attend the hearing. The applicant said that he needed more time to decide, and said that he would call back the next day. However, he did not do so. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear, and has not made further contact with the Tribunal. I am satisfied that the Tribunal has complied with its statutory obligation to invite the applicant to a hearing, and that the applicant has, in effect, declined this opportunity. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
In my view, the Tribunal acted prudently in contacting the applicant by telephone on 14 March 2007. By that means, the Tribunal was able to confirm that the applicant had received the hearing invitation. Also, the applicant gave the Tribunal to understand that he was in some doubt whether he would attend or not. The presiding member has fairly summarised a case note prepared by a Tribunal officer (court book, page 54). Thus fortified, the presiding member was able to properly find that the Tribunal had met its statutory obligation to invite the applicant to a hearing and that the applicant had, in effect, declined that opportunity. The Tribunal properly proceeded pursuant to s.426A of the Migration Act to deal with the matter in the applicant's absence.
There is no arguable case of jurisdictional error in relation to the decision of the Tribunal to proceed in the applicant's absence. The applicant has not asserted any other jurisdictional error. Neither is any other arguable case of error apparent to me from my reading of the material.
Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). I so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,000. Scale costs in this instance would be $2,500. The Minister properly seeks a lesser amount. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 18 July 2007