SZKRG v Minister for Immigration
[2007] FMCA 1974
•20 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1974 |
| MIGRATION – Medical certificate – no explanation of why medical condition would prevent applicant from attending Court and participating effectively in the hearing – adjournment refused – failure to appear before the Tribunal after s.425 invitation – rejection inevitable consequence. |
| Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A, 441C, 474 Migration Regulations 1994 (Cth), reg.4.35D |
| NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZKRG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1621 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 20 November 2007 |
| Date of last submission: | 20 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2007 |
REPRESENTATION
| The Applicant did not appear |
| Solicitors for the Respondents: | Ms S. Sharman of Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1621 of 2007
| SZKRG |
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 30 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.
This matter was previously listed for hearing on 23 October 2007. By letter dated 22 October 2007, the applicant advised the Court that she could not attend because she had “been suffering serious sickness” and “can not [sic] eat and drink for nearly a week”. The applicant attached a doctor’s certificate which indicated that she was “unfit for work” from 19-26 October 2007 “due to medical reason”. The Court granted the adjournment and listed the matter for hearing today.
The Court received a letter from the applicant the day before the scheduled hearing, stating that:
I can not [sic] attend the hearing tomorrow since I have been suffering serious sickness. I can not [sic] eat and drink for nearly a week.
Other than the date, this letter is identical to the letter of 22 October 2007. It is also accompanied by a medical certificate which states that the applicant is “unfit for work” from 17-23 November 2007 “due to medical reason”.
The first respondent was advised of the applicant’s letter to the Court and opposed the granting of an adjournment. The first respondent referred to the decision of NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559, where Lindgren J decided that the medical certificates in that case were “quite unsatisfactory” because they did not address
the critical question whether, and if so why, the medical condition would prevent the appellant travelling to the Court and participating effectively in a court hearing.
His Honour refused an adjournment on this basis.
The same approach was adopted by Middleton J in the case of MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624 at [13]. Also, in NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17, the Full Court of the Federal Court of Australia observed in that case that
the medical certificate does not identify the ‘medical condition’ or explain why it would prevent the appellant from participating effectively in a hearing…
The Full Court of the Federal Court of Australia refused to grant an adjournment.
The medical certificate before the Court does not identify the medical condition or explain why it would prevent the applicant from attending this hearing. It merely says “unfit for work”. The above decisions are binding on this Court and the Court refuses to grant an adjournment.
The Court tried to call the applicant on her mobile phone at 3pm on 19 November 2007, but the applicant’s mobile phone was switched off. The Court’s contact number was left on the missed call service, and the applicant could have rung the Court. She failed to do so. A letter was sent yesterday to the applicant by priority same-day courier service to the applicant’s latest address for service (which, the Court notes, was provided a day before the hearing). The letter advised the applicant that the hearing would proceed as scheduled. The applicant has not appeared at this hearing. The Court therefore proceeded to deal with the matter on the papers.
Background
On 11 December 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application she claimed to fear persecution because of her practice of Falun Gong.
The application was refused by a delegate of the first respondent on 16 December 2006 (CB 31) and by the Tribunal on review on 30 March 2007 (CB 64-70).
The matter is now before this Court pursuant to an application for judicial review filed on 23 May 2007.
Issues for determination
The issues before the Court are as follows:
·Whether the Tribunal was entitled to proceed to decision when the applicant failed to appear at the hearing;
·Whether s.425 and attendant provisions were complied with.
The application
In her application, the applicant set out the following grounds:
(1)I am a Chinese citizen and I am a genuine Falungong member. I have been practicing for years and I have been warned by my local security and company to be put in prison if I continue this activity.
(2)I can not stop practicing Falungong since it has helped a lot with my health condition. I can not go back to China since I am very scared to be sentenced.
(3)I have been actively practicing Falungong since I arrived in Australia. I believe that Chinese government still look for me. My family told me not to go back since they came to my home twice and asked where I am about.
Under the heading “Orders sought by Applicant” in the application, the applicant continued as follows:
(4)I disagree with Immigration and RRT’s decision since I am a genuine Falun Gong member. They did not consider that I will be in danger if I return.
(5)RRT did not consider that I am still actively practicing in Australia and it will also bring me a big trouble if I return home.
(6)I could not attend the RRT hearing due to my sickness at that time and I informed RRT, they have extended only a few days for me, I still could not attend the hearing due to my poor health condition and could not prepare my submission. RRT did not consider the fact and refused my application which I believe it is not fair for me.
Findings of the Court
The Tribunal wrote to the applicant on 1 February 2007 in accordance with s.425 of the Act. The letter was addressed to the applicant at “Unit 2/27 Wyitt Avenue, Burwood NSW 2134” (CB 47): that was the most recent address for correspondence provided to the Tribunal (CB 45). The applicant sent a “Change of Contact Details” form (CB 49) dated 2 February 2007 to the Tribunal, stating “Unit 2/27 Wyatt Avenue, Burwood NSW 2134” as her “new postal address”. The s.425 letter was therefore sent to the latest address provided by the applicant at that time.
A further s.425 letter was sent to the applicant at her correct address on 5 February 2007 (CB 51). The letter advised the applicant that “The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone”. The applicant was invited to a hearing on 20 March 2007 (CB 51). The Court accepts the following submission for the first respondent:
The second invitation was sent by prepaid post, a method of service specified in s.441A(4) of the Act, and accordingly it complied with s.425A(2)(a) of the Act. Under s.441C(4) of the Act, the applicant is taken to have received the second invitation seven working days after the date it was sent, namely 14 February 2007. Therefore, the applicant had more than the prescribed period of 14 days’ notice of the hearing (reg.4.35D(b) of the Migration Regulations 1994), and accordingly the requirements of s.425A(3) of the Act were met.
It is noted that the Tribunal may make a decision without further notice, if an applicant invited to appear before the Tribunal fails to attend the scheduled hearing.
The applicant sent a letter to the Tribunal on 19 March 2007 advising that she could not attend the hearing on 20 March 2007 and seeking an adjournment (CB 53). The hearing on 20 March 2007 was postponed (CB 54).
The Tribunal sent the applicant a letter on 20 March 2007 at her correct address, advising that the new date for hearing was 30 March 2007, but that otherwise details in the letter of 5 February 2007 still apply. The letter contained a statement that the Tribunal may make a decision without further notice if an applicant fails to attend a hearing. The applicant did not reply to the invitation to attend (CB 58) and did not attend at the hearing (CB 59, 67.4). The Tribunal therefore proceeded to make a decision without taking any further action to allow or enable the applicant to appear (s.426A). 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 [or her] 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]. 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].
The Tribunal found the applicant’s claims to be “vague and very general, and in effect amount to nothing more than unsupported allegations” (CB 69.3). The Tribunal found that it
…cannot be satisfied that the applicant is a genuine adherent of Falun Gong or that she has been harmed in the past by the government of the PRC, or that she would face harm in the reasonably foreseeable future upon return to the PRC.
The Tribunal cannot be satisfied that the applicant has a well-founded fear of harm for reason of her religion/political opinion [Falun Gong] or for any other Convention reason in the reasonably foreseeable future in China.
Grounds 1-5 in the application to the Court assert matters of fact and seek a review of the merits, which is not a function for this Court. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
The Court agrees with the following statement by the Tribunal at CB 68-69:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.
The last ground asserts that the applicant was unable to attend the adjourned hearing before the Tribunal because of poor health. The applicant notified the Tribunal the day before the hearing that she could not attend due to stomach ache and that she could not eat and drink (CB 53). She sought an adjournment. The hearing on 20 March 2007 was postponed until 30 March 2007 (CB 59). The applicant was notified of the new hearing date (CB 56). The applicant did not reply to that letter (CB 58) and did not attend at the hearing on 30 March 2007. As decided in SZIGQ (ante), once s.425 is complied with, if the applicant fails to attend the reason for attendance does not matter. There was no denial of natural justice. The applicant failed to establish her case to the satisfaction of the Tribunal. No error has been shown. This ground is rejected.
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 twenty-two (22) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: M Giang
Date: 26 November 2007
0
12
2