SZMDW v Minister for Immigration

[2008] FMCA 1041

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMDW v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1041

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China because of the One Child Policy – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 426A

Applicant: SZMDW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 957 of 2008

Judgment of: Driver FM

Hearing date: 24 July 2008

Delivered at: Sydney

Delivered on: 24 July 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 957 of 2008

SZMDW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 18 March 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution relating to the Chinese one child policy.

2. The applicant's claims and the Tribunal decision on them are summarised in written submissions filed on behalf of the Minister on 10 July 2008. I adopt as background for the purposes of this judgment with minor amendments paragraphs 2 through to 7 of those written submissions:

   The applicant’s written claims were contained in a statement attached to his protection visa application: court book (“CB”) 26.  He provided no further written claims to the Department or to the Tribunal and did not attend his Tribunal hearing.

   The applicant, a citizen of the People’s Republic of China claimed to fear persecution on the basis of the one child policy. He claimed that he was beaten in 1998 as a result of a dispute over paying a fine for breaching the one child policy. The applicant claimed that if he returned to China, he would be unable to pay the fine and he would be mistreated by the government.

   The delegate refused the applicant a protection visa because while it accepted that the applicant may have suffered harm as a result of China’s one child policy, it did not accept that any mistreatment amounted to persecution: CB 34.6. The Tribunal also relied on country information which suggested a relaxation of the one child policy.

   Tribunal proceedings

   On 21 December 2007, the applicant lodged an application with the Tribunal seeking review of the delegate’s decision: CB 37-40.  By a letter dated 8 January 2008, the Tribunal validly invited the applicant to attend a hearing on 26 February 2008 to give oral evidence and present arguments in support of his case: CB 43-44. 

   The applicant did not reply to that invitation and failed to attend the hearing on 26 February 2008: CB 45-46. The Tribunal proceeded to make a decision in accordance with s.426A of the Migration Act 1958 (Cth) (“the Migration Act”) without taking any further action to allow or enable the applicant to appear before it: CB 54.1.

   The Tribunal found that the applicant’s claims were “lacking in essential detail” (CB 54.7) and given his failure to attend the hearing, the Tribunal was unable to test his claims. The Tribunal found it could not be satisfied that there was a real chance that the applicant had suffered any harm amounting to persecution or that he had a well‑founded fear of persecution within the meaning of the Convention: CB 54.8.

3. The applicant relies upon his show cause application filed on 17 April 2008. That application asserts a breach of s.424A of the Migration Act. There is a second paragraph which, on my reading, it appears to be a statement of asserted particulars of the breach of s.424A.

4. The application states:

   The Tribunal referred to the claimed difficulties experienced by the applicant's daughter in China, however the Tribunal did not consider such claim because the daughter is not an applicant and the alleged harm which he has experienced is not harm which would be suffered by the Applicant [or] his wife if they were to return to China.  The Tribunal failed to put this information to the applicant and invite him to comment on it. 

5. The application is supported by an affidavit purportedly by the applicant, which I received as a submission. The affidavit reasserts the alleged breach of section 424A.

6. There is an immediate difficulty in that the asserted particulars do not appear to have any factual connection to the application's protection visa claims which were not augmented by anything in his review application to the Tribunal. 

7. I have before me as evidence the court book, filed on 19 May 2008.  That is supplemented by an affidavit by Mr Sean Louis Dworcan, filed on 21 May 2008. 

8. There is nothing in the available material to support the contention that the applicant told the Tribunal that he had a daughter or that his wife was in Australia.  His protection visa application asserted that he had two sons.  The applicant told me from the bar table today that his wife is not in Australia but is in China.  He said that he did not know what was in his application to the Court because the application was completed by a friend.  He also told me that a friend, possibly the same person, had completed his application to the Tribunal. 

9. This matter was listed for hearing before me on 22 July 2008.  When the matter was called, the applicant failed to appear.  The Court was successful in contacting the applicant by telephone.  It was clear from background noise that the applicant was in some outdoor location.  The applicant claimed to be unwell.  The applicant had not contacted the Court or the Minister's solicitors to inform either the solicitors or the Court of his sickness prior to the matter being called.  He claimed he was unable to do so because of his lack of understanding of English.  In the circumstances, I agreed to an adjournment of the hearing until today.  The applicant attended today in person with the assistance of a Cantonese interpreter.  He was able to say very little in support of his application.  This, no doubt, reflects the fact that both his application to the Court and his application to the Tribunal were completed by a person described as a friend. 

10. The applicant told me from the bar table that he relied on his friend to inform him of whatever was in correspondence he got from the Tribunal.  He told me that typically his friend would read letters received from the Tribunal and just say, "no problem."  Somewhat inconsistently, the applicant asserted his friend did tell him specifically when he needed to attend Court hearings in this Court. 

11. I accept from the court book and the affidavit of Mr Dworcan that the applicant was invited to attend a hearing before the Tribunal by letter dated 8 January 2008.  The hearing invitation was dispatched to the applicant by registered post on the date that it bore.  There was no response to the hearing invitation and the applicant did not attend the hearing to which he was invited.  The Tribunal records in its reasons (CB 54) that the applicant did not provide a telephone contact number and had not identified an advisor or authorised recipient who might be contacted.  

12. In the circumstances, I accept that the Tribunal had met its obligation to invite the applicant to a hearing and was entitled to proceed in his absence pursuant to s.426A of the Migration Act.

13. The applicant was informed in the hearing invitation that the Tribunal was unable to make a favourable decision on the information he had provided.  It is unsurprising that in the absence of anything further the Tribunal was unable to make a favourable decision.  It is plain from the Tribunal's findings and reasons that the Tribunal considered that the applicant's claims were lacking in essential detail.  The Tribunal decision turned upon an insufficiency of information and not any particular adverse information. 

14. Accordingly, I accept the Minister's submission that there was no information requiring disclosure to the applicant pursuant to s.424A of the Migration Act.

15. The applicant has failed to advance any arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

16. Costs should follow the event in this case.  Scale costs in this instance would be $2,500.  The Minister seeks costs fixed in the amount of $3,700.  That includes costs thrown away by reason of the adjournment of the hearing on 22 July 2008.  I accept that the applicant should pay costs thrown away in addition to usual costs because of his failure to inform the Court or the Minister's solicitors of his asserted illness in advance of the hearing on 22 July 2008.  I will order that The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,700.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  25 July 2008