SZLER v Minister for Immigration
[2007] FMCA 1755
•15 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLER v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1755 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – review of a decision of the RRT not to grant a protection visa – applicant a citizen of the People's Republic of China claiming well-founded fear of persecution – where applicant did not attend RRT hearing – privative clause decision – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.426A |
| Applicant: | SZLER |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2505 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 October 2007 |
| Date of last submission: | 15 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Hooper |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2505 of 2007
| SZLER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is applying for a review of a decision of the Refugee Review Tribunal affirming a decision not to grant him a Protection (Class XA) visa. The Tribunal handed down its decision on 17th July 2007.
The Applicant seeks these orders:
a)A writ of certiorari quashing the Tribunal's decision.
b)A writ of mandamus, compelling the Tribunal to rehear and redetermine the matter according to law.
There was some doubt that the Court has power to make an order requiring the Tribunal to rehear the Applicant's application.
The Applicant did not appear at the hearing. The Tribunal made its decision on the review without taking any further action to enable the Applicant to appear before it under the provisions of s.426A of the Migration Act 1958.
Background
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 13th January 2007. He applied for a Protection (Class XA) visa on 21st February 2007 claiming a fear of persecution on the basis that he claims to be a practitioner of Falun Dafa. A delegate of the Minister for Immigration and Citizenship refused his application on 24th March 2007. He then applied to the Refugee Review Tribunal for a review of that decision.
Application for Review by the Refugee Review Tribunal
The Applicant lodged his application for a review at the Sydney Registry of the Refugee Review Tribunal on 26th April 2007. The Applicant did not lodge any other document with his application except for a copy of his passport. In the application he gave his residential address and nominated another address as his mailing address. He did not provide any telephone number in his application, nor did he nominate any person as his adviser.
The Tribunal wrote to the Applicant by registered mail at his nominated address for correspondence on 4th May 2007 advising him that it had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone.
The Tribunal invited the Applicant to attend the hearing at 10:00am on 6th June 2007. The Tribunal did not receive any response to the hearing invitation. The Applicant had not provided any telephone number upon which he could be contacted. He did not attend the Tribunal hearing on the scheduled date. The following day the Tribunal received a faxed letter from the Applicant saying relevantly:
I just went to the Darlinghurst Post Office and received a letter from RRT. That letter asked me to go to a hearing on 6 June 2007. I realised that I had missed the hearing yesterday.
I sincerely wish the Tribunal can arrange a new hearing for me. This hearing opportunity is important to me as I want to give oral evidence at the Tribunal.[1]
[1] See Court Book at page 58
The Tribunal wrote to the Applicant the following day, 8th June 2007, advising him that the Presiding Member had considered the request carefully and decided not to invite the Applicant to appear at any hearing. The letter said that the Tribunal would proceed to make a decision on the review.[2]
[2] See Court Book at page 59
The Tribunal signed the decision record on 21st June 2007 and handed the decision down on 17th July affirming the decision of the delegate not to grant the Applicant a protection visa.
The Tribunal’s Findings and Reasons
The Tribunal in its findings and reasons accepted that the Applicant was a citizen of China based on the copy of his passport provided with his application for a visa. The Tribunal stated that:
The Tribunal finds that the applicant has given only a brief outline of his claims and that they are lacking in crucial detail. Although he stated that he was introduced to Falun Gong, or Falun Dafa, in 1999, he gave few details of the extent and nature of his practice. He stated that after Falun Gong was declared illegal the local police ‘sealed up’ his practice station, but he provided few details of the circumstances in which this occurred.
Given the scant details of the applicant's claims, the Tribunal is not satisfied that the applicant has been or is a practitioner of Falun Gong.[3]
[3] See Court Book at page 67
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and found the applicant did not satisfy the criterion as set out in s.36(2) of the Migration Act for a protection visa. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant filed an application at this Court on 14th August 2007 along with an affidavit. In his application the Applicant set out these grounds:
The RRT failed to offer the applicant procedural fairness as the applicant was denied a hearing opportunity.
On 7 June 2007 the applicant sent a letter to the Tribunal advising that he missed the hearing opportunity and asked to be given a new hearing. The Tribunal did not give the applicant a new hearing opportunity.
The applicant claims that he missed the hearing because he received the Australia Post’s registered mail notice but did not know what it was. He did not know he should pick up the letter from the post office.
In his affidavit the Applicant said:
I would like to apply for a judicial review of the RRT's decision on my application for a protection visa because the RRT's decision contains jurisdictional error. I missed out the RRT hearing because I did not receive RRT's hearing invitation. RRT failed to conduct any further assessment after I failed to attend the hearing.
The Minister for Immigration & Citizenship is the First Respondent to the application. In a Response filed on 24th August 2007 the First Respondent contends that even if the Applicant's claims are true they do not identify any jurisdictional error. The First Respondent opposes the orders sought by the Applicant on the basis that no reasonable cause of action is shown.
Show-cause Hearing
The application was listed for a Show-cause Hearing today. The solicitor appearing for the Minister, Ms Hooper, submitted that the reason for the Tribunal's decision was that based on the evidence before it, it was unable to be satisfied that the Applicant had a well founded fear of persecution. She submitted that the Tribunal complied with its obligations to invite the Applicant to attend the hearing. The invitation was sent to the Applicant at his address for correspondence that he gave in his application for review.
She told the Court that the Applicant did not provide a telephone number, or details of any authorised recipient. She said that the Applicant did not contact the Tribunal before the hearing to seek a postponement. It was one day after the hearing that the Applicant by fax asked for a new hearing. She pointed out that the Tribunal decided not to exercise its discretion to postpone the hearing or provide a new hearing because the Applicant had not adequately explained his failure to attend the hearing.
The Tribunal set out its reasons:
The Tribunal does not accept that the applicant has explained why he visited the Darlinghust Post Office to receive his letter, and had only just done so the day after the hearing, when it was sent to his nominated address for correspondence (a street address) on 4 May 2007. The Tribunal does not accept that the applicant has adequately explained why he was not able to appear before the Tribunal on 6 June 2007.[4]
[4] See Court Book at page 67
The Applicant confirmed to the Court that he did not attend the hearing and said that he had not received the letter, or at least until it was too late. In his submissions he told the Court that he had arranged to receive his mail through a mail box because he did not have a fixed address. A notice was left indicating that there was a registered mail parcel to be picked up. He did not know what it was.
Later he asked the owner of the mail box and then realised that it was a registered letter. It was then on 7th June that he sent a fax to the Refugee Review Tribunal and asked for a new hearing date, but the Tribunal did not agree. The Applicant said that the Tribunal did not agree to a further hearing and refused his application which was unfair.
In reply Ms Hooper for the Minister told the Court that the Applicant had not shown any jurisdictional error on the part of the Tribunal.
Conclusions
The Applicant completed his application for review with the assistance of someone who could read and write English. He has given a reason why he elected to use a mailing address rather than his residential address. It appears that all of the Applicant's mail was to be sent there, including correspondence from the Refugee Review Tribunal. The Tribunal complied with his request to forward all mail to the Applicant's post office box.
The Tribunal wrote on 27th April acknowledging the application, and informing him that the Tribunal might invite him to attend a hearing. The Tribunal did in fact write to the Applicant at that address on 4th May inviting him to a hearing. That letter was sent by registered post and it was clearly important to the Tribunal to do so. The letter inviting the Applicant to a hearing was an important document and it was a proper decision on the part of the Tribunal to send it by registered post.
It is not uncommon and in fact it is the usual practice for recipients of registered mail to receive a card asking them to go to the post office to pick up the registered item. The Applicant said that he did not know what the document was and it appears that it took him several weeks before he actually enquired. Then and only then did he go to the post office to collect his registered letter. By that stage it was too late as the hearing had already been held, or more correctly the day had passed.
The Tribunal has a discretion to decide whether to postpone a hearing or grant a new hearing if an applicant misses the hearing. Obviously that discretion must be exercised reasonably. In this case the Tribunal did not consider that the Applicant had provided an adequate explanation. Now it may be that some other person would have come to a different view, but that does not mean that the Tribunal fell into jurisdictional error.
The Applicant's application only refers to circumstances of his missing the hearing. It does not allege any error in the Tribunal decision itself. Whilst the Applicant is aggrieved that he missed the hearing he has not demonstrated that the Tribunal unreasonably exercised its discretion not to grant a new hearing. He has not pointed to any error in the Tribunal's reason except insofar as he claims that the Tribunal should have given him another chance to attend the hearing.
I am satisfied that the application does not show a reasonable case of jurisdictional error and in the absence of jurisdictional error the application for review should be dismissed. I propose to dismiss the application with costs.
There is an application for costs on behalf of the First Respondent Minister. The Minister has been successful in these proceedings and it usually follows that a successful party who is legally represented can expect to apply for an order for costs. Costs are estimated at $2,200.00 which is certainly an appropriate figure. I propose to make that order.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 18 October 2007
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