SZMHJ v Minister for Immigration - [2008] FMCA 1432

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMHJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1432

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal complied with s.425 and s.424A of the Migration Act 1958 (Cth) – whether the applicant gave the Refugee Review Tribunal his last address for service where that address was on an application for judicial review.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), pt.8.div.2, ss.36(2); 65(1); 424A; 424A(3)(b); 424C(1); 424C(2); 425; 425(1); 425(2); 425(2)(c); 425(3); 441A; 441A(c); 441A(c)(i); 441A(c)(ii); 441A(4); 474
Migration Regulations 1994 (Cth), reg.4.39

SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190;
SZCIA v Minister for Immigration & Multicultural and Indigenous Affairs [2006] FCA 238

Applicant:

SZMHJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1299 of 2008

Judgment of:

Emmett FM

Hearing dates:

15 & 23 October 2008

Date of Last Submission:

23 October 2008

Delivered at:

Sydney

Delivered on:

23 October 2008

REPRESENTATION

Applicant appeared in person assisted by a Mandarin interpreter

Counsel for the Respondent:

Ms S. Sirtes

Solicitors for the Respondent:

Ms J. Dinihan, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1299 of 2008

SZMHJ

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 pt.8.div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 9 October 2006 and handed down on 26 October 2006.
The applicant is a citizen of the People's Republic of China (“China”) and claims to fear persecution by authorities in China by reason of being a Falun Gong practitioner.
The applicant arrived in Australia on 29 April 2001, having departed legally from Gang Zhou on a passport issued in his own name and visa issued on 23 April 2001.
On 26 August 2004, the applicant lodged an application for a protection visa with the Department of Immigration & Multicultural and Indigenous Affairs (“the Department”). That application was supported by a statement of claims by the applicant dated 26 August 2004 relating to his claims of Falun Gong practice and his alleged persecution by authorities by reason of that practice.
On 23 November 2004, a delegate of the first respondent (“the Delegate”) refused the applicant’s application for a protection visa on the basis that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 20 December 2004, the applicant lodged an application for review with the Refugee Review Tribunal in respect of the Delegate's decision. On 17 February 2005, the Refugee Review Tribunal affirmed the decision of the Delegate to refuse the applicant a Protection Visa.
On 6 April 2005, the applicant filed an application for judicial review in this Court of that Refugee Review Tribunal's decision. On 3 July 2006, by consent, the applicant's application was remitted to the Refugee Review Tribunal for determination according to law.
On 9 October 2006 the Refugee Review Tribunal, differently constituted, (“the Tribunal”) made the decision that is the subject of this proceeding.
The applicant's application to this Court was filed on 21 May 2008 and contained the following grounds:
“1. After my application was remitted to RRT from Federal Magistrate court, I however never received any further information or contact from RRT. I didn’t know that they didn’t have my address as I have informed Department of Immigration and Citizenship and the department has my latest address. Also in the remitted letter from Federal Magistrate Court to RRT, it contains my latest address. I think RRT just simply forgot to check about my application and made a decision without giving me a fair opportunity.
2. I have never received any further invitation letter from RRT about hearing.”
In support of the grounds of his application, the applicant submitted to this Court that he did not receive any letter setting out further information or a further invitation to come to a hearing.
On 15 August 2006, the Tribunal purported to send to the applicant a letter pursuant to s.424A of the Act (“s.424A Letter”) giving the applicant information that may be the reason, or part of the reason, that the Tribunal may affirm the decision under review and inviting the applicant to comment by 7 September 2006. No response was received by the Tribunal from the applicant to that letter.
The issues for determination are whether or not the Tribunal sent the s.424A Letter in compliance with the statutory regime; and, whether or not the Tribunal is obliged to invite the applicant to come to a further hearing. Both these issues are intertwined as is discussed below.
Section 425 of the Act obliges the Refugee Review Tribunal to invite an applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425 is as follows:
“Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
Relevantly, s.425(2) states that the Refugee Review Tribunal’s obligation in s.425(1), to invite the applicant to come to a hearing, does not apply if s.424C(1) or (2) applies to the applicant. Relevantly, s.424C(2) states as follows:
“Failure to give additional information, comments or response in response to written invitation
…
(2) If the applicant:
(a) is invited under section 424A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.”
The s.424A Letter must be sent to the applicant in accordance with s.441A of the Act. Relevantly, that section provides, in s.441A(4)
“Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.”
The s.424A Letter was sent to the applicant at the address identified by the applicant in the application for review lodged with the Refugee Review Tribunal on 20 December 2004. However, in the application for judicial review filed by the applicant on 6 April 2005 seeking judicial review of the earlier Refugee Review Tribunal's decision, the applicant provided a different address for service.
It is not disputed by the first respondent that the address on the application for judicial review, filed on 6 April 2005, is not the last address for service. However, the first respondent contends that it was not provided to the Refugee Review Tribunal by the applicant in connection with the review. Counsel for the first respondent submitted that the Tribunal was obliged to correspond with the applicant at the last address provided by the applicant to the Refugee Review Tribunal. Counsel for the first respondent submitted that the only address provided by the applicant to the Tribunal was the address on the application for review of the Delegate’s decision by the Refugee Review Tribunal, dated 20 December 2004.
The applicant was asked by the Court whether at any stage he gave the Tribunal the details of his new address. The applicant responded that he did not because he had provided those details to “a higher Court”. By those words, I understand the applicant to mean that the application for judicial review filed in the Federal Magistrates Court on 6 April 2005 had his new address as his address for service.
The application for judicial review filed on 6 April 2005 only identifies the Minister for Immigration and Multicultural and Indigenous Affairs as the respondent. On 3 July 2006, Raphael FM ordered that the Refugee Review Tribunal be included as second respondent in the proceeding. The applicant told this Court that he did not communicate with the Tribunal directly in relation to his new address after he had filed the application on 6 April 2005. In exploring this issue, the applicant clearly told this Court that he did not give his new address to the Tribunal and confirmed that the only address he had given to the Tribunal was the address in his application for review lodged with the Refugee Review Tribunal on 20 December 2004.
In the circumstances, the s.424A Letter was sent by the Tribunal to the last address provided to the Tribunal by the applicant. Accordingly, the s.424A Letter complied with all statutory requirements.
In those circumstances, s.425(2)(c) of the Act has the effect that the Tribunal is no longer obliged to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. This is because the applicant was invited under s.424A to comment on or respond to information and did not give the comments or the response before the time for giving them had passed.
In those circumstances, s.424C(2) of the Act states that the Tribunal may make a decision on the review, without taking any further action to obtain the applicant’s views.
Section 425(2) of the Act states that the Tribunal’s obligation to invite the applicant to appear does not apply if s.424C(2) of the Act applies to the applicant.
In the circumstances of this case, s.424C(2) applies to the applicant. Accordingly, the Tribunal is relieved of the obligations of s.425(1) of the Act.
In the circumstances, the Tribunal was entitled to proceed with its review without issuing a further hearing invitation to the applicant. Pursuant to s.425(3) of the Act, the applicant was not entitled to appear before the Tribunal.
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the applicant’s claims. However, the Tribunal found that the applicant’s knowledge of Falun Gong was “very vague and limited”. The Tribunal also found “significant inconsistencies” between the Applicant’s written statement and his oral evidence to the earlier Refugee Review Tribunal, differently constituted. That is not information that enlivens any further statutory obligations on the part of the Tribunal (SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [17] – [18])
The Tribunal noted that it had invited the Applicant to comment on the inconsistencies in his evidence and that he had not provided comments on the information. The Tribunal was not satisfied that the applicant was a practitioner of Falun Gong in China, nor that he was detained in June 2000, nor that he was beaten and mistreated in detention.
It is for the applicant to satisfy the Tribunal that he meets the statutory criteria for being a refugee. If the Tribunal is not so satisfied, then pursuant to s.65(1) of the Act, it must affirm the decision under review to refuse to grant the applicant a protection visa (SZCIA v Minister for Immigration & Multicultural and Indigenous Affairs [2006] FCA 238 per Allsop at [11]-[12]).
In the circumstances, the Tribunal’s conclusion that it was not satisfied that the applicant met the criteria set out in s.36(2) of the Act for a protection visa, was open to it on the evidence and material before it and for which it provided reasons .
The Tribunal’s decision is not affected by jurisdictional error. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The application filed on 21 May 2008 is dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 23 October 2008