SZKTR v Minister for Immigration - [2007] FMCA 1447

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKTR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1447

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – Tribunal initially failing to personally give a copy of its decision to the applicant – copy sent by post apparently not received – no jurisdictional error found – application dismissed.

Migration Act 1958, ss.424A, 430, 430B, 441A, 477

SZFLM v Minister for Immigration [2007] FCA 863

Applicant:

SZKTR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1851 of 2007

Judgment of:

Driver FM

Hearing date:

21 August 2007

Delivered at:

Sydney

Delivered on:

21 August 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms G Broderick
Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1851 of 2007

SZKTR

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 1 May 2007 and was handed down on 22 May 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts relating to the applicant's protection visa claims and the Tribunal decision on them are set out in written submissions filed on behalf of the Minister on 14 August 2007. I adopt as background for the purposes of this judgment paras.2 through to 8 of those submissions:
The applicant is a citizen of the Peoples' Republic of China ("China") who arrived in Australia on 7 November 2006. On 8 December 2006 the applicant applied for a protection visa. That application was refused by a delegate of the Minister on 30 January 2007.
On 2 March 2007, the applicant applied to the Tribunal for a review of the delegate's decision. On 13 March 2007, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) ("the Migration Act"). On 5 April 2007, the Tribunal received a response to the s.424A letter.
On 24 April 2007, the applicant appeared before the Tribunal and gave oral evidence.
At the Tribunal hearing the applicant:
(a) produced his passport;
(b)explained his claims that he was persecuted in China for his practice of Falun Gong.

Tribunal’s reasons

The Tribunal did not accept that the applicant was a Falun Gong practitioner in China or that he practices in Australia for the following reasons:
(a)when asked specific questions, the applicant told the Tribunal he could not answer them and said he was only interested in practising Falun Gong, not its theory or philosophy;
(b)the applicant's oral evidence was inconsistent and displayed a complete lack of knowledge of Falun Gong;
(c)when asked on several occasions to elaborate on his claims of detention, the applicant was not able to give any detail;
(d)the Tribunal expected a Falun Gong practitioner of some 11 years standing to be able to articulate at least a basic understanding of the principles and theory, to know how the exercises are performed and to be able to accurately name or describe them, particularly where he claims to have been trained in China and continues to practise in Australia.

The Tribunal noted the inconsistencies between the statement provided with the protection visa application and the oral evidence given at the hearing. However, the Tribunal did not draw any adverse inferences from this. The Tribunal relied on the oral evidence provided at the hearing only.
The Tribunal accepted that the applicant had a passport issued in his own name and that he may have had to bribe or make a payment for the issue of it, but did not accept that the applicant would have been able to exit the country legally if he was of any adverse interest to the authorities.

These proceedings began with a show cause application filed on 13 June 2007. The applicant asserted notification of the Tribunal decision on 12 June 2007. I accept that the application was filed within time on that basis and on the basis that the applicant did not actually receive a copy of the Tribunal decision until he asked the Tribunal for one.
The application contains two grounds. Those are reproduced in para.9 of the Minister's written submissions which I incorporate in this judgment:
The applicant's judicial review application pleads the following grounds of review:
1.The RRT failed to afford the applicant procedural fairness as it failed to invite the applicant to comment on information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. By failing to invite the applicant to comment, the Tribunal acted in breach of section 424A of the Act ("Ground 1").
2.The RRT breached its duty to notify the applicant of the decision. The applicant notified the Tribunal by facsimile for the change of his postal address on 11 May. The RRT posted its decision on 22 May 2007 to his previous postal address. The applicant did not receive the decision until he visited the Tribunal on 12 June 2007 ("Ground 2").
The first ground is repeated in an accompanying affidavit which I received as a submission. The second ground is not repeated in the affidavit but a further ground is identified. The applicant asserts that the Tribunal acted capriciously and arbitrarily in finding that he was not a committed Falun Gong practitioner. The applicant in his affidavit also sought an extension of time but that request was unnecessary.
The evidence that I have before me is limited to the court book filed on 17 July 2007. The applicant relied upon his application and accompanying affidavit which, as I have already noted, I treated as a submission. He also asked the interpreter to read a written statement for him. That statement was directed to the second ground in the application.
The court book discloses that a copy of the Tribunal decision was sent to the applicant by post under cover of a letter dated 22 May 2007: court book page 99. The applicant says that he did not receive that letter and had advised the Tribunal of a change of address. A change of address form is reproduced on page 94 of the court book and is dated 11 May 2000; that is after the decision was signed but before it was handed down. The applicant informed the Tribunal of a new postal address but did not change his residential address. Page 64 of the court book discloses that the applicant's nominated residential address was that used by the Tribunal in its letter dated 22 May 2007. As the Minister's solicitor pointed out s.430B(6) of the Migration Act requires the Tribunal, where an applicant does not attend the handing down of a decision, to notify the applicant of a decision by giving the applicant a copy of the statement prepared under s.430 of the Migration Act by one of the methods specified in s.441A of the Migration Act. Section 441A(4)(c)(ii) specifies one of those methods, to be despatched by pre‑paid post to the last residential address or business address provided to the Tribunal by the recipient in connection with the review. The address used by the Tribunal in its letter dated 22 May 2007 was the last residential address notified by the applicant to the Tribunal. The Tribunal was permitted to use that address rather than a postal address.
That conclusion says nothing about the initial failure by the Tribunal to physically give a copy of its decision and reasons to the applicant. It appears that physical delivery occurred when the applicant visited the Tribunal premises on 12 June 2007. In any event, and consistently with the decision of the Federal Court in SZFLM v Minister for Immigration [2007] FCA 863 a breach of s.430B(6) of the Migration Act would not constitute jurisdictional error, although it would suspend the running of time for the purposes of s.477 of the Migration Act.
There is no substance to the asserted breach of s.424A of the Migration Act. I agree with, and adopt for the purposes of this judgment, with necessary amendments, paragraphs 10 to 12, of the Minister's written submissions:
The Tribunal's alleged failure to comply with s.424A(1) of the Act is not particularised. The Tribunal evinced an intention to rely upon information obtained from the applicant's protection visa application as well as the oral evidence given at the Tribunal hearing. The Tribunal sent a s.424A letter inviting the applicant to comment on information it considered would be the reason, or part of the reason, for rejecting the applicant's claims. This included:
(a)the applicant's answers to questions 47 and 48 of his protection visa application which stated that he did not have difficulties in obtaining a travel document or leaving China;
(b)country information which indicated that if Falun Gong practitioners sought asylum, they would obtain proof through local Falun Gong centres and societies.
The s.424A letter explained the relevance of the information and that it may form the reason, or part of the reason, for rejecting the applicant's claims. The applicant replied to the s.424A letter.
The Tribunal also noted inconsistencies between the applicant's protection visa application and the oral evidence given at the hearing. However, the Tribunal did not draw any adverse inferences from this information and preferred to rely on the applicant's sworn oral evidence given at the hearing.
I also reject the contention that the Tribunal acted capriciously or arbitrarily. A different Tribunal may have reached a different view on the applicant's credibility but the Tribunal decision is a reasoned one based on the information the applicant himself had provided and the adverse conclusions reached by the Tribunal were open to it on the material before it.
I find that the applicant has failed to demonstrate any jurisdictional error in the Tribunal decision. Neither is any jurisdictional error apparent to me from my own reading of the material.
The decision is a privative clause decision and the application must be dismissed.
The application having been dismissed costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,800. Scale costs in this instance would be $5,000. The applicant indicated he did not oppose an order for costs in the amount sought by the Minister. I order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,800.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 22 August 2007