SZLUN v Minister for Immigration - [2008] FMCA 426

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUN v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 426

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.425 of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal sent the applicant an invitation to come to a hearing by way of facsimile to the applicant’s migration agent – relief granted.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425; 425A; 426A

Applicant:

SZLUN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3926 of 2007

Judgment of:

Emmett FM

Hearing date:

3 April 2008

Date of last submission:

3 April 2008

Delivered at:

Sydney

Delivered on:

3 April 2008

REPRESENTATION

Applicant appearing on his own behalf

Solicitors for the Respondent:

Ms A. Crittenden, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3926 of 2007

SZLUN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 November 2007 and handed down on 29 November 2007.
The Applicant arrived in Australia on 3 July 2007 having departed legally from Xiamen Gaoqi International Airport on a passport issued in his own name and a visa issued on 17 July 2007.
On 7 July 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In a statutory declaration provided by the Applicant in support of his protection visa application the Applicant claimed that he was a citizen of the People’s Republic of China (“the PRC”) and was arrested on

6 March 2007
on suspicion of anti-government activities. The Applicant stated that he lived in Taiwan between November 2002 and June 2006. The Applicant stated that the PRC authorities suspected that he had sent letters to the National People’s Congress in Beijing urging the PRC authorities to cease military threats against Taiwan and to respect Taiwanese government and its people’s rights. The Applicant stated that he was arrested and detained for “nearly one month”, during which time he was beaten and tortured.
The Applicant stated that, following his release from detention, he became a “major activist” in protesting against the treatment of people in detention and “against the Communist dictatorship.”
The Applicant stated that on 4 June 2007 he was questioned by the Public Security Bureau in relation to the distribution of propaganda materials. Following this questioning, the Applicant left the PRC with a tour group on 2 July 2007. The Applicant stated that on 6 July 2007 his co-activist was arrested in the PRC, and on 7 July 2007 the police went to his home with “a search warrant and detention permit” for the Applicant.
The Applicant stated that he would be subject to persecution because of his political opinions and actions as a leader of anti-government movement against the “Communist dictatorship”.
On 31 August 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). In particular, the Delegate noted the absence of any evidence to support the Applicant’s claims and found the fact that the Applicant was able to legally depart the PRC was a “strong indication” that he was of no significant adverse interest to the authorities at the time of his departure.
On 28 September 2007, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. The Applicant provided no further material in support of the review application.
In his review application the Applicant identified a migration agent,

Mr Harry Huang, as his authorised recipient.
On 16 October 2007, the Tribunal purported to invite the Applicant to come to a hearing on 12 November 2007 by purporting to send a facsimile to Mr Huang at the facsimile number identified on the Applicant’s application for review. No response or further communication was received by or on behalf of the Applicant to the hearing invitation.
On 16 November 2007, the Tribunal purported to exercise its discretion pursuant to s.426A of the Act by making a decision on the review without taking any further action to allow or enable the Applicant to appear before it. The Tribunal affirmed the decision under review.
On 21 December 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision on the following grounds:
“There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
There was procedural error in the tribunal’s decision constituting an absence of natural justice.
Particulars
1. The Tribunal made its findings completely incorrectly.
- There are no evidence that the Tribunal has invited me to appear before the Tribunal by fax dated 16 October 2007 address to my agent; there are no evidence that my agent has received such an invitation by a fax; there are no evidence that the Tribunal has taken any steps to confirm whether my agent or I have received such an invitation by a fax; and there are no evidence that the Tribunal has genuinely provided me an opportunity to give my oral evidence in support of my claims or to present my argument against the issues arising from the review.
2. The Tribunal failed to comply with its obligations under s.425 of the Act.
- The Tribunal failed to provide me a genuine opportunity to give my oral evidence in support of my claims or to present my argument against the issues arising from the review.
3. The Tribunal failed to comply with its obligation under s.424A(1) of the Act.
- The Tribunal has regarded some of information, such as the one in relation to details of my torture while in police custody in March 2007 or the one in relation to details of my torture while in police custody in March 2007 or the one in relation to propaganda materials or the one in relation to my departure from China with my own passport, as the reasons or part of reasons in its decision.
- The tribunal, however, failed to provide me particulars of the information; failed to ensure me to understand it will be in relation to my review and failed to give me a chance to make my comment on it.”
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
By consent, the Applicant filed in Court a statutory declaration by

Mr Huang, declared 2 April 2008. The statutory declaration is as follows:
“1. I am a registered migration agent with Migration Agent Number 9579277.
2. I have been appointed and nominated as a migration agent and authorised person by (the Applicant) to act on his behalf in relation to his application for a Protection (Class XA) Visa lodged with the Onshore Protection NSW of Department of Immigration and citizenship and following application for review of the decision lodged with refugee review tribunal (Tribunal).
3. I, and my firm Pricilla International Co. Pty Limited, have never ever received the Tribunal’s fax dated 16 October 2007 regarding the invitation of inviting the applicant to appear before the Tribunal (“the Tribunal’s hearing”).
4. Our firm have dealt with many cases in relation to protection visa application. In most of cases, the Tribunal sent us the invitation for the Tribunal’s hearing by fax. However, it has happened sometimes that the Tribunal has sent its documents to us through fax but we do not receive them or we have received are just blank papers. Both the Tribunal and our firm have realised this problem. So, normally, if the Tribunal find that our client has failed to response the invitation for the Tribunal’s hearing, then the Tribunal will immediately contact our firm in order to ensure our firm or our client has genuinely received the invitation. In this case, however, the Tribunal has done nothing even if it had realised there was no response to the invitation.
5. Our firm did receive invitation to handing down of decision in relation to (the applicant’s case), which was faxed by the Tribunal on 19 November 2007. However, in this document, the Tribunal failed to indicate our firm or our client that the decision had been made because the applicant failed to attend the Tribunal’s hearing on the contrary, it has clearly indicated that the applicants are not required to attend the handing down of the decision.
6. Subject to section 425 of the Migration Act it is possible that the Tribunal makes a favourable decision without inviting the applicant to attend a Tribunal’s hearing. That’s why we are not surprised while our client received invitation to handing down of decision without attending Tribunal’s hearing.
7. In summary, (in the applicant’s case), my firm and I have never ever received the invitation for the Tribunal’s hearing.”
Mr Huang was present in Court for cross-examination. However, the solicitor for the First respondent did not seek to cross-examine

Mr Huang.
The solicitor for the First Respondent submitted that the court should draw the inference that there has been compliance with the statutory regime provided for in ss.425 and 425A of the Act from a copy of a document in the bundle of documents, marked Exhibit 1R, identified as a “Transmission Log”. The First Respondent provided no evidence to the court as to how the Transmission Log was generated and how it comes to be produced in the form contained in Exhibit 1R. There appears to be a photocopy of the Tribunal’s invitation dated 16 October 2007 addressed to Mr Huang somehow imposed on the page headed “Transmission Log”. However, there is no evidence before the Court as to how that letter is reproduced on the Transmission Log.
The Court has regard to the evidence of Mr Huang and accepts that he did not receive the letter of invitation dated 16 October 2007. Further, the Court accepts Mr Huang’s evidence that it was the Refugee Review Tribunal’s usual practise with his firm that if the Refugee Review Tribunal has not received a response to its s.425 invitation then the Refugee Review Tribunal “will immediately contact our firm in order to ensure our firm or our client has genuinely received the invitation.” This evidence was not challenged by the solicitor for the First Respondent.
In the circumstances, the Court is not prepared to draw the inference contended for by the solicitor for the First Respondent that the Tribunal sent the Applicant an invitation by facsimile to his authorised recipient in accordance with ss.425 and 425A of the Act.
Accordingly I am not satisfied that the letter of invitation was sent to the Applicant in accordance with ss.425 and 425A.
It is well accepted that failure to comply with s.425 of the Act is a failure by the Tribunal to comply with the requirements of natural justice and is a jurisdictional error.
Accordingly, the decision of the Tribunal dated 16 November 2007 and handed down on 29 November 2007 is set aside and the matter remitted to the Refugee Review Tribunal for determination according to law.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 3 April 2008