SZLWS v Minister for Immigration
[2008] FMCA 840
•12 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLWS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 840 |
| MIGRATION – RRT decision – Chinese applicant claiming fear of persecution for Falun Gong practice – did not attend Tribunal hearing – no evidence of fraud by agent – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A(1), 426A(1) |
| Applicant S1174 of 2000 v Refugee Review Tribunal [2004] FCA 289 Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 NBBL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 592 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64 SZHVM v Minister for Immigration & Citizenship [2008] FCA 600 |
| Applicant: | SZLWS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 68 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 12 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 68 of 2008
| SZLWS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in September 1999. On 23 September 1999, a migration agent appointed by the applicant lodged an application for a protection visa on his behalf. The application was appropriately, if somewhat cursorily, completed, and presented the applicant’s reasons for seeking protection in Australia against return to the People’s Republic of China. The applicant has identified his signatures on the application, and does not contend that any part of it was inaccurately completed.
A brief typed statement attached to the application claimed that the applicant had been introduced to Falun Gong and had practised it with his friends, but could no longer practise Falun Gong because it had been banned. Such a ban had been imposed by the Chinese government in July 1999, i.e. about one and a half months before the applicant arrived in Australia. The statement said:
In China more and more Falun Gong practitioners are being arrested by the police. I know sooner or later I will be arrested if I go on staying in China. Because I didn’t want to stop practising Falun Gong, my work unit warned me several times. But I didn’t want to give up. At last I was dismissed. I made up my mind to leave China, but the Chinese government didn’t grant me a passport because the work unit didn’t give me an introduction letter as required. With the help of my friend, I bribed some government officers and provided some false document and got my passport.
No supporting evidence for these claims was presented to the Department of Immigration, and on 25 January 2000 a delegate refused the application. In his decision, the delegate pointed out that the applicant had, in fact, obtained his passport and an Australian visa before the date shown in his application when he had ceased to be employed. The delegate noted that there was no evidence showing that the applicant was a Falun Gong practitioner, and was not satisfied that he faced a real chance of persecution if he returned to China.
The delegate’s letter was posted both to the applicant at his home address and to the applicant’s agent, and on the applicant’s evidence to me today both of those letters were received. The applicant gave evidence, as I understand it, that he was promptly telephoned by his agent and asked to attend the agent’s office. He did so, and the agent explained that the decision had been against him, but that he could appeal.
The applicant then signed an application for review which was lodged on 25 February 2000. The application authorised the agent to act for the applicant “in relation to this application”, and gave the applicant’s home address and an address for service, which appears to have been a post box also used by the agent.
At that time, the provisions of the Migration Act 1958 (Cth) requiring service of notices on an agent instead of an applicant had not been inserted in the Act, and the Tribunal was obliged to send any correspondence to whatever address for service was nominated to it.
By letter dated 24 May 2000 which was addressed to the applicant at his address for service, the Tribunal informed him that the Tribunal was not prepared to make a favourable decision on the information before it. The letter invited the applicant to a hearing appointed for 7 July 2000. This was more than the period prescribed at the time for giving notice of a hearing.
On 7 June 2000, the Tribunal received a response to its letter, indicating that it had been received. The response said that the applicant wanted to come to the hearing. It has a signature which is different than the applicant’s signature, and I am prepared to assume that it was probably the agent’s. Neither that document nor the original application form had provided a telephone number for the applicant.
The Tribunal’s records indicate that there was no attendance by the applicant or his agent at the hearing, and there is no record of any contact being made to the Tribunal to explain their absence. In those circumstances, the Tribunal was authorised under s.426A(1) of the Migration Act to proceed to make a decision without taking further action.
The Tribunal decided to exercise that power, and it handed down a decision on 7 November 2000 which affirmed the delegate’s decision. The decision was posted to the applicant and his agent at the post office box given for both of them.
In his evidence today, the applicant said that he had been contacted by the agent and had been told on the telephone that his application to the Tribunal had been refused. The applicant claimed in his evidence that the agent told him: “your case is finished”. The agent also told him that he had no right to go to another appeal. However, the applicant sought advice from another agent, who had advertised a class action in the High Court known as the “Lie class action”. The evidence before me indicates that the applicant was joined as a represented party in that proceeding on or about 15 December 2000.
Several years later, the applicant’s involvement in the class action came to an end, after the refusal by Emmett J on 20 February 2004 of a separate draft order nisi filed on his behalf (see Applicant S1174 of 2000 v Refugee Review Tribunal [2004] FCA 289). The applicant claims never to have been told about the outcome of the class action, but to have assumed that he had pending litigation until he made further enquiries in the year 2007. I have decided that I do not need to explore his explanations for his delay in commencing the present proceeding, nor rule upon its veracity. I note, however, that the Minister appears to have some grounds for submitting that, if the Court can find grounds for setting aside the Tribunal’s decision, such relief should be refused on discretionary grounds.
The applicant’s present application was filed on 11 January 2008. It seeks orders setting aside the Tribunal’s decision and remitting the matter for further consideration. I can only make these orders if I am satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa or for any other permission to stay in Australia.
The application presents only one ground:
The second respondent failed to comply with section 425(1) and section 426A of the Migration Act 1958 and thereby committed jurisdictional error of law.
The particulars contend that the Tribunal failed to consider whether it should reschedule the hearing which had been appointed, so as to allow the applicant a second opportunity to attend a hearing.
In my opinion, there is no basis for upholding that ground. On the information known to the Tribunal, the applicant had been properly notified through his agent of the hearing, and the Tribunal had received no explanations for his absence from the hearing. It has been held that mere absence from a hearing does not give rise to any duty to enquire before deciding not to re‑schedule, even where a “Yes” response has been received (see NBBL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 592). Section 426A(1) empowers the Tribunal to proceed to make a decision in such a circumstance, without taking any further action.
The Tribunal was not obliged to fully explain its reasons for exercising its discretion to proceed under s.426A(1), and in the present circumstances I am not prepared to infer that there was any failure by it to consider relevant discretionary factors.
The affidavit filed with the applicant’s original application obliquely raised a second ground of review, by contending:
If the Court is satisfied that there has been fraud by immigration agent, I would say, where a migration agent misleads an applicant or breaches their duty to me.
This appears to invoke the High Court’s decision in SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64, notwithstanding that a proper factual basis for coming within that case is not shown in the affidavit. In those circumstances, at the first court date in the application on 5 February 2008, I explained to the applicant that he should take advice and consider filing evidence explaining his reasons for non‑attendance at the hearing and his allegation of fraud, as well as his delays in coming back to Court. He was given an opportunity to take advice, but he has filed no additional evidence.
At the start of today’s hearing, the applicant maintained that he felt cheated by his agent, because his agent had not told him about the hearing appointed by the Tribunal before the agent had told him that his appeal had failed. Without objection from the Minister, I allowed the applicant to give oral evidence. He maintained his assertion that, notwithstanding his other contacts with his agent which I have referred to above, at no time did the agent convey to him knowledge of the hearing appointment before the Tribunal handed down its decision.
The applicant was cross‑examined, and at times gave plainly contradictory responses. At other times he conceded that his memory of events in 2000 was imperfect. I gained an impression that he wished to maintain the simple proposition that there had been a culpable failure by the agent to inform him about the hearing date. However, I have decided that I should not disbelieve the applicant in his claim that he was unaware of the hearing, and in particular that the appointment for the hearing was not conveyed to him by the agent.
However, such a finding falls far short of the findings which are necessary before the Court could order the setting aside of a Tribunal decision on the ground of fraud on the procedures of the Tribunal. As the High Court pointed out in SZFDE at [53], a relevant fraud by an agent requires proof of more than breach of contract or negligence which may have resulted in the absence of an applicant from a hearing.
Moreover, on the current evidence, I would not make a finding that the agent was in breach of contract or negligent or otherwise at fault. No attempt has been made by the applicant to investigate the agent’s records or evidence in relation to the matter. It is quite possible that the agent made attempts to convey the hearing date to the applicant, but failed to achieve this aim due to difficulties in contacting the applicant.
Whatever the reason for the agent’s failure to communicate the hearing appointment to the applicant, I am not satisfied that there was a fraud by the agent perpetrated on the Tribunal’s procedures, allowing me to set aside the decision (see also the recent discussions of SZFDE in Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 and SZHVM v Minister for Immigration & Citizenship [2008] FCA 600).
For the above reasons, I am not satisfied that either of the jurisdictional errors raised by the applicant are established in relation to the procedures of the Tribunal.
The Tribunal’s reasoning when affirming the delegate’s decision also, in my opinion, discloses no jurisdictional error. The Tribunal affirmed the delegate’s decision because it was unable to accept that the applicant had been dismissed from his employment for the reasons claimed, due to inconsistencies which had been identified by the delegate. It also pointed to the generality of the applicant’s claim and the lack of details regarding his practice of Falun Gong. It was unable to accept his claims that he was an adherent of Falun Gong, that he was dismissed from his work because of his adherence, or that he would be arrested and put into prison because he is a Falun Gong member if he returned to China.
The Tribunal’s reference to the contents of the documents lodged on the Department file does not give rise to any concern under s.424A(1) (see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609).
I am not satisfied that the Tribunal’s decision is in any way affected by jurisdictional error. I therefore have no power to order a further hearing into the applicant’s 1999 application for a protection visa. I must dismiss the application.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 27 June 2008
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