SZLZE v Minister for Immigration
[2008] FMCA 560
•1 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLZE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 560 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – Tribunal unable to make favourable decision because of insufficient supportive material – applicant invited to attend a hearing by the Tribunal but failing to attend – applicant assisted by an undisclosed and unregistered agent – agent alleged failing to inform applicant of the hearing invitation – no evidence of fraud by the agent – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958, ss.65, 425, 425A, 426A, 441A Migration Regulations 1994 (Cth) |
| Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration & Anor v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 |
| Applicant: | SZLZE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 321 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 1 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2008 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 321 of 2008
| SZLZE |
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 made, according to the cover sheet, on 30 June 2004. It was communicated to the applicant by a letter dated 27 July 2004. It appears that the Tribunal decision was actually handed down on that day. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon his asserted practice of Falun Gong.
The background to the applicant’s protection visa claims and the Tribunal decision on them, is set out in paragraphs 2 to 4 of written submissions prepared on behalf of the respondent Minister filed on 22 April 2008. I adopt as background for the purposes of this judgment those paragraphs:
The applicant, a citizen of the People’s Republic of China (PRC), claimed to fear persecution on the basis that he was a Falun Gong practitioner. The applicant’s claims were contained in a typed statement accompanying his protection visa application: court book (“CB”) 32. The applicant sought protection on the basis that he had practised Falun Gong for almost six years, and following the crackdown on Falun Gong by the PRC authorities in July 1999, he feared persecution if he continued to practise.
A delegate of the Minister rejected the applicant’s protection visa application on 29 April 2004. The delegate had doubts about whether the applicant had ever been involved in Falun Gong, but found that, as an ordinary Falun Gong practitioner, he would not come to the adverse attention of the PRC authorities: CB 39.4.
The applicant sought review of the delegate’s decision by lodging an application with the Tribunal on 19 May 2004: CB 40-43. The Tribunal was unable to make a decision in the applicant’s favour on the basis of the material before it and invited him to attend a hearing on 24 June 2004: CB 46-47. The applicant did not respond to the hearing invitation and the invitation was not returned unclaimed to the Tribunal: CB 48, 57.7. On 17 June 2004, the Tribunal attempted to contact the applicant on the mobile telephone number provided in his application for review, but was informed that it was a “wrong number”: CB 49. The applicant failed to attend the hearing and the review was determined by the Tribunal in his absence: CB 57.8.
The applicant relies upon his show cause application filed on 12 February 2008. In that application he asserted notification of the Tribunal decision on 18 December 2007. I have before me as evidence the court book filed on 7 March 2008. The final document in the court book is a letter dated 18 December 2007 from the Tribunal to the applicant enclosing a copy of the Tribunal decision. It is apparent from the letter that the applicant requested a copy of the Tribunal’s decision on 14 December 2007.
I dealt with the application on the basis that an extension of time was not required because the applicant had not been served personally with a copy of the Tribunal decision[1]. That may be contestable on the basis that page 60 of the court book records that the applicant inspected the Tribunal file in his case on 20 October 2006 at the Tribunal premises. It may be that the Tribunal file included a copy of the Tribunal decision, but there is no evidence that the applicant was permitted to retain a copy of the Tribunal decision at that time.
[1] Minister for Immigration v SZKKC [2007] FCAFC 105
The application is supported by two affidavits by the applicant filed on 12 February 2008 and 31 March 2008. I received both of those affidavits as evidence without objection. In those affidavits the applicant disclosed documents detailing his complaints against his former agent being Guo Deng.
I also permitted the applicant to give oral evidence concerning the delay in him bringing the present proceeding in this Court. He gave evidence that for some time after the Tribunal decision he was awaiting advice from Mr Deng. About a year after the Tribunal decision he became particularly concerned. He appears to have been told, informally, that Mr Deng was a deregistered migration agent and the applicant suspected that he may have become an unlawful non-citizen. He complained about Mr Deng to the Commonwealth Ombudsman by letter dated 23 October 2006. That complaint was apparently referred to the Minister’s Department, which in turn apparently referred it to the Migration Agent’s Registration Authority (“MARA”). MARA wrote to the applicant on 14 February 2007 to advise that
Mr Deng’s registration as a migration agent ceased on 14 January 2004 and that MARA could not conduct investigations into allegations of unregistered practice. MARA advised that such investigation was a matter for the Minister’s Department. The applicant gave evidence that during 2007 he searched for an acceptable agent to assist him, but found none that he could afford or that he found acceptable. He ultimately found a friend to assist him, which resulted in the present application being made.
In addition to the applicant’s affidavits in the court book, I also have before me an affidavit by Megan Louise Palmer who deposes as to the lawful despatch of the hearing invitation sent to the applicant by the Tribunal.
The applicant makes two complaints about the Tribunal decision. The first, in his show cause application, is that the Tribunal failed to take into account his promptness in applying for a protection visa. That allegation is somewhat ironic given that the applicant’s evidence is that the protection visa application was prepared and lodged by Mr Deng, about whom he now complains.
It is correct that the Tribunal, in its decision, makes no reference to the asserted promptness by the applicant in applying for a protection visa. However, it is plain from the decision that the applicant was unsuccessful before the Tribunal because the Tribunal had insufficient information to enable it to make a favourable decision. Any view the Tribunal may have had about the applicant’s promptness in seeking protection would not have made any difference to that lack of information. The Tribunal’s obligation was to set out in its reasons the factors that the Tribunal considered significant. The failure by the Tribunal to mention the applicant’s asserted promptness in applying for a protection visa does not point to any jurisdictional error.
The applicant’s other complaint (not raised in the show cause application) concerns the conduct of his agent,
Mr Deng. The applicant asserts that he was deceived by Mr Deng. He says that he placed total reliance in Mr Deng to attend to his affairs. There is evidence, which I accept from the applicant’s affidavit, that he did indeed engage Mr Deng to provide assistance, and paid him for his services. I also accept that at the time Mr Deng was an unregistered migration agent. The fact of Mr Deng’s involvement was not disclosed either to the Minister’s Department or to the Tribunal. It is possible that his involvement was intentionally concealed because he was at the time unregistered. However, the applicant was at least recklessly indifferent to that conduct. He admitted signing documents without knowing their contents. He appears to have placed total reliance in Mr Deng to do whatever might be required on his behalf, without making any effort himself to check what was being said to done by Mr Deng on his behalf, until it was too late.
I accept from the court book and the affidavit of Ms Palmer that the Tribunal met its obligations to invite the applicant to a hearing. On his evidence, the applicant was not even aware that an application had been made to the Tribunal on his behalf. He was aware that Mr Deng had been using the applicant’s home address, for the purposes of correspondence, but apparently he made no enquiry of Mr Deng as to why he was not using his, that is, Mr Deng’s, address.
The applicant asserts that he had changed his home address, and when he told Mr Deng that Mr Deng could not understand his pronunciation of his new home address, but was reassured when the applicant told him that he had friends at his former address who would pass on to Mr Deng any mail that was received. The applicant now says that he only had one friend at that former home address, who had been taken into detention. In the circumstances, there is no reliable evidence that the hearing invitation was ever received by Mr Deng. If it was not received by Mr Deng, he could not do anything with it.
This is not a case of a migration agent misleading or misinforming the Tribunal as to the applicant’s intention to attend or not attend a hearing. The Tribunal received no response to the hearing invitation it sent. The Tribunal attempted to contact the applicant on a mobile telephone number he had provided, but that attempt was not successful. According to the Tribunal’s reasons for decision (CB 57), someone answered the phone when the Tribunal telephoned the number and told the Tribunal officer that the Tribunal had the wrong number. The applicant contends that that was impossible, and he has no recollection of such a conversation. Whatever occurred in respect of that conversation, I am satisfied that the Tribunal met its obligations under s.425 of the Migration Act 1958 (Cth) (“the Migration Act”) to invite the applicant to a hearing.
I accept, in that regard, paragraphs 5 through to 9 of the Minister’s submissions as follows:
If the Tribunal has complied with ss.425 and 425A of the Migration Act by inviting an applicant to attend a hearing, it may proceed under s.426A of the Migration Act to consider and decide the matter without conducting any further inquiries.[2]
[2] See: NADK of 2002 v Minister for Immigration [2002] FCAFC 184, NALQ vMinister for Immigration [2004] FCAFC 121, VNAA vMinister for Immigration (2004) 136 FCR 407; [2004] FCAFC 134, NASF vMinister for Immigration [2004] FCAFC 162, Minister for Immigration v VSAF of 2003 and Ors, op. cit., Minister for Immigration & Anor v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73, SZDPB v Minister for Immigration [2006] FCAFC 110.
Relevantly, the hearing invitation (CB 46-47) dated 27 May 2004 and sent by the Tribunal to the applicant:
(a)invited the applicant to appear before it to give evidence (s.425);
(b)gave the applicant notice of the specified day, time and place at which the applicant was scheduled to appear;
(c)was given to the applicant by one of the means specified in s.441A - namely, s.441A(4) because it was dispatched within three working days by prepaid post to the last address for service nominated by the applicant;[3]
(d)provided a period of notice[4] to the applicant that was at least the prescribed period of 14 days provided for by reg 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”); and
(e)contained a statement to the effect of s.426A (regarding the options available to the Tribunal if the applicant failed to appear before it).
Accordingly, the invitation complied with the statutory requirements contained in ss.425(1) and 425A of the Migration Act and reg. 4.35D of the Regulations.
If an applicant does not appear before the Tribunal after having been given a valid invitation under s.425, the Tribunal may make a decision on the review without taking further action to allow or enable the applicant to appear before the Tribunal.[5] The Tribunal was not required to make further enquiries[6] and had no duty to investigate the applicant’s claims.[7] The Tribunal was not obliged to accept the applicant’s claims at face value and by choosing not to attend the hearing, the applicant is to be taken to have assumed the risk that any omissions, inconsistencies or unsatisfactory features of his documents would be noted by the Tribunal without him having an opportunity to expand upon or clarify them.[8]
The task of the Minister, through his delegate, and the Tribunal on appeal, pursuant to s.65 of the Migration Act, is to consider whether they are satisfied that the requirements for the grant of a visa have been met. It will be difficult for the Tribunal to achieve the requisite degree of satisfaction if the applicant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected.[9] The Tribunal’s rejection of the application was the “inevitable consequence”[10] of the applicant’s non-attendance at the hearing.
[3] Affidavit of Megan Louise Palmer sworn 18 April 2008, Annexure “A”.
[4] Regulation 4.35D provides for the purposes of s.425A(3) a prescribed period of fourteen days between the date that notification of the hearing date was deemed to have been received by the applicant and the date of the scheduled hearing (ie. 16 October 2007).
[5] Section 426A of the Act
[6] Minister for Immigration v SGLB (2004) 207 ALR 12
[7] NAYU v Minister for Immigration [2004] FCA 528 at [18]-[21] per Jacobson J
[8] S58 of 2003 v Minister for Immigration [2004] FCAFC 283 at [25]
[9] NAST v Minister for Immigration [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ); NAVX v Minister for Immigration [2004] FCAFC 287 (French, Emmett and Dowsett JJ); Minister for Immigration Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ).
[10] NAVX v Minister for Immigration [2004] FCAFC 287 at [5]
It is unfortunate that the applicant lost the hearing opportunity that was offered to him by the Tribunal. There is evidence of irregular conduct by Mr Deng in providing migration services while he was not a registered migration agent. That may have been an offence, but I am not persuaded that there is any evidence of fraud by Mr Deng against the Tribunal. At most, in relation to the Tribunal, this is a case of nonfeasance, rather than misfeasance. Mr Deng concealed his involvement. He did not respond on the applicant’s behalf to the hearing invitation forwarded by the Tribunal. However, as I have already noted, there is no evidence that Mr Deng ever received that hearing invitation. Even if Mr Deng had received the hearing invitation, and done nothing with it, that would only show neglect of duties, or incompetence.
As the High Court said in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 at [53], referring to the decision of the Full Federal Court in that case:
In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.
The applicant attempted to contact Mr Deng several times following the Tribunal decision, but without success. He placed a remarkable degree of trust in Mr Deng. If he had taken more interest in his own visa and review applications, and had taken the trouble to contact the Tribunal to check the progress of his review application, he might have been able to take advantage of the hearing opportunity. He is, in my view, substantially the author of his own misfortune.
I find that the conduct of Mr Deng does not vitiate the decision of the Tribunal in this matter.
I have considered whether there is any other jurisdictional error apparent from the decision of the Tribunal. I have found none. I agree with and adopt paragraph 12 of the Minister’s submissions:
The Tribunal plainly considered all of the applicant’s limited claims and evidence (CB 56.7-57.5) but could not reach the requisite level of satisfaction to grant him a protection visa on the basis of that limited information. As discussed above at paragraphs 8 to 9, the Tribunal’s findings were open to it for the reasons given and disclose no error.
The Minister’s submissions also dealt with the question of delay. If jurisdictional error had been established, there would have been a substantial issue whether relief should be withheld in the exercise of discretion because of the applicant’s delay in bringing these proceedings. The applicant’s efforts, some years after the event, to have the conduct of Mr Deng investigated, are not, themselves, a sufficient explanation of that delay. He should have known, or did know, by at least 2006 that his protection visa claims had been rejected. His asserted fear of detection and detention is not a sufficient reason for failing to deal with whatever decision had been made, and seeking to regularise his status.
It is, however, unnecessary to deal with that issue of judicial discretion as the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $5,000. The applicant stated that he could not pay, but as has been repeatedly stated, impecuniosity is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 6 May 2008
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