SZLKD v Minister for Immigration
[2008] FMCA 446
•7 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLKD & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 446 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal entitled to proceed to a decision under s.426A as the applicants failed to attend the Tribunal hearing – no s.424A obligation existed in this case. |
| Migration Act 1958, ss.65, 422B, 424A, 425, 425A, 426A, 441A, 441C Migration Regulations 1994, reg.4.35D |
| Minister for Immigration & Citizenship v SZKPQ [2008] FCAFC 21 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 |
| First Applicant: | SZLKD |
| Second Applicant: | SZLKE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3014 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 7 April 2008 |
| Date of Last Submission: | 7 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2008 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3014 of 2007
| SZLKD |
First Applicant
| SZLKE |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of China, formerly resident in the Hong Kong Special Administrative Region, where the first applicant claims the government is undemocratic and denies citizens human rights. He alleges that the Hong Kong government implemented a population policy in 2004 which unfairly discriminated against new migrants. The applicants arrived in Australia on 28 February 2007.
The first applicant’s wife is the second applicant in these proceedings. She has no claims of her own and her claim will be determined by the outcome of her husband’s claim.
The first applicant claims to fear persecution in Hong Kong because of an oppressive government.
After their arrival in Australia, the applicants lodged an application for a protection visa. This was refused by the Minister’s delegate on 3 May 2007. The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicants’ claim for a protection visa are set out on pages 4 – 5 of the Tribunal’s decision (Court Book (“CB”) pages 65 – 66). Relevantly, they are in summary:
a)the first applicant was born in Fujian, but had lived in Hong Kong since 1997;
b)since Hong Kong’s takeover by China in 1997 it has been subjected to intervention and influence from Beijing. The Hong Kong government has been a puppet for the Chinese government and has denied democracy to the people of Hong Kong;
c)Hong Kong has a bad human rights record and there are limited opportunities for skilled and unskilled workers;
d)the government encouraged fair competition but disregarded collusion by bureaucrats. It lacked sincerity and has resisted demands by citizens to enact fair competition laws. It has tolerated soaring property prices which have made the people suffer; and
e)the government implemented a population policy in 2004 which unfairly discriminated against new migrants. It intended to tighten conditions for family reunions, social security, medical welfare and other human rights.
The Tribunal’s decision and reasons
On 14 June 2007 the Tribunal wrote to the first applicant to advise that it had considered all the material before it in relation to the application made by him and his wife but was unable to make a favourable decision on that information alone (CB 52 – 53). The Tribunal invited the applicants to a hearing on 1 August 2007 to give oral evidence and present arguments. They were advised that if they did not attend then the Tribunal might make a decision on their application without further notice. The applicants did not appear before the Tribunal on the day and at the time they were scheduled to appear. In these circumstances and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicants to appear before it.
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following reasons:
a)the Tribunal was not satisfied that the first applicant’s claims indicated that either he or his wife suffered any harm for a Convention reason in the past, either in Hong Kong or elsewhere in China, noting that his claims were unsubstantiated by any external source and were notably brief, generalised and vague; and
b)the Tribunal found that there was no evidence that the changes in Hong Kong described by the first applicant either applied to him directly or caused him any harm at all, let alone harm for a Convention reason.
The Tribunal’s decision can be encapsulated in the following passage from its decision record:
There is nothing to indicate that the Applicant’s employment has been harmed as a result of government actions or that he has suffered any infringement of his basic human rights or that [he] has suffered any other form of adverse consequences. Nor is there anything to indicate that this situation has changed so that there could now be said to be a real chance that the Applicant and his wife would suffer any harm, including for a Convention reason, should they return to the People’s Republic of China. (CB 67)
Proceedings in this Court
The grounds of the application filed in this Court were pleaded as follows:
1. The Refugee Review Tribunal committed jurisdictional errors of law in that it failed to comply with the Migration Act 1958.
2. The Refugee Review Tribunal denied the applicants a fairness when affirming the decision not to grant the applicants a protection visa by the Department of Immigration.
Failure to comply with the Act
The first of the allegations contained in the application is not particularised. It would appear, given the circumstances of the case, to most likely refer to the Tribunal’s decision to proceed to a decision pursuant to s.426A of the Migration Act 1958 (“Act”) in the absence of the applicants’ attendance at the Tribunal hearing. In this regard, s.425(1) of the Act provides that unless the Tribunal is in a position to make a favourable decision on the review application, it is to invite the applicant to attend a Tribunal hearing in order to give evidence and present arguments relating to the issues arising in relation to the decision under review. Such an invitation is to be provided in accordance with s.425A of the Act which, amongst other things, requires that the notice contain a statement to the effect of s.426A.
Court Book 65 shows that the s.425A notice (at CB 52 – 53) was dispatched by post by the Tribunal on 14 June 2007. The reproduction of the s.425A notice at CB 52 reveals that the notice was dated 14 June 2007 and was addressed to the address identified in the application for review filed with the Tribunal as being the applicants’ address for correspondence. I infer that the letter was sent to the applicants at the address appearing on the letter and I find that it was sent by prepaid post to that address on 14 June 2007.
Section 441A(4) of the Act provides that one of the methods by which an invitation to a Tribunal hearing may be given is by sending it by prepaid post at the last address for service provided to the Tribunal by the recipient in connection with the review, or the last residential address provided by the recipient in connection with the review. Section 441A(4)(a) provides that if a s.425A notice is sent by prepaid post it must be dispatched within three working days of the date which the document bears. In this case, I have found the notice was dated 14 June 2007 and was posted on that day. By dispatching its s.425A notice on 14 June 2007 to the address given by the applicants in their application to the Tribunal, the Tribunal satisfied the requirements of s.441A(4).
It should be noted in passing that the s.425A notice was addressed only to the first applicant and not to both applicants. However, the notice did make it clear that both of the applicants were being invited to a hearing. As the Full Court of the Federal Court said in Minister for Immigration & Citizenship v SZKPQ [2008] FCAFC 21 at [23]:
There is nothing in [provisions such as s.441A] to suggest that the manner in which the document itself is addressed has any bearing on whether the document has been given.
I do not conclude that the fact that the letter was not addressed to both applicants results in its invalidity. Sections 425A and 441A do not prescribe the manner in which the notice is to be addressed, just the content of the notice and how it is to be delivered. The notice made it clear that both applicants were invited to attend the Tribunal hearing and its delivery observed the requirements of s.441A(4). I conclude that the requirements of both those sections have been met, notwithstanding that the letter was addressed solely to the first applicant.
Section 441C(4) provides that if a document is sent by prepaid post in accordance with s.441A(4) and it is dispatched from a place in Australia to another place in Australia, it is deemed to have been received seven working days after the date of the document. Because the Tribunal complied with s.441A(4), the notice is taken to have been received by the applicants seven working days after the date which it bears, namely 25 June 2007.
Regulation 4.35D of the Migration Regulations1994 relevantly provides that an applicant is entitled to receive 14 clear days notice of a Tribunal hearing. In this case, the s.425A notice invited the applicants to a hearing on 1 August 2007. As the applicants were not in detention and the 14 day period required by reg.4.35D applied, the notice had to be received no later than 16 July 2007. As already noted, the notice is taken to have been received on 25 June 2007. Consequently, the requirements of reg.4.35D have been satisfied.
Because in this case the Tribunal discharged its obligations to invite the applicants to a hearing and they failed to attend that hearing, it was entitled to proceed to make a decision on the review without taking any further action to allow or enable them to appear before it. Thus, its decision to do so was not affected by error.
The applicants have put nothing by way of written or oral submissions to give this first ground set out in the application filed in this Court any particular substance. I do not conclude that there was any failure to comply with the Act, a conclusion which I will expand upon further in relation to the second asserted ground of review.
Denial of fairness
The other provisions of the Act with which the Tribunal might possibly have not complied are those which are found in div.4 of pt.7 of the Act which by virtue of s.422B set out the Tribunal’s procedural fairness obligations under the natural justice hearing rule.
The most obvious candidates for consideration under such a ground would be ss.424A, 425, 425A and 426A. The latter three provisions have already been considered in relation to the first asserted ground of review.
As to s.424A, a review of the Tribunal’s decision record discloses that no information such as might have been required to be served under s.424A(1) formed the basis of the Tribunal’s decision. That decision was grounded not on information which was supplied to it but rather on the want of information being supplied to it. The Tribunal cannot make a decision favourable to an applicant for a review of a delegate’s decision unless it is satisfied that that applicant meets the criteria for a protection visa. Section 65(1)(b) of the Act provides that unless the Tribunal is so satisfied, it must affirm the decision of the delegate.
In this case the Tribunal’s decision was simply a matter of it not being satisfied that the applicants met the statutory criteria for the grant of a protection visa. As Allsop J said in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29] and [30], such a situation does not generate s.424A(1) obligations.
As to the other provisions found in div.4 of pt.7 of the Act, a review of the Tribunal’s decision does not disclose that the Tribunal breached any of them. For these reasons, the second asserted ground of review must fail.
Conclusion
For all these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
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