SZMJK v Minister for Immigration
[2008] FMCA 1516
•27 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMJK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1516 |
| MIGRATION – Review of RRT decision – where applicant did not attend Tribunal hearing – where Tribunal unable to be satisfied that the applicant had a well-founded fear of persecution – whether Tribunal relied on any “information” in the making of its decision. |
| Migration Act 1958 (Cth), s.441A |
| Minister for Immigration v SZHFC [2006] FCAFC 73 SZBYR v Minister for Immigration (2007) 235 ALR 609 VAF v Minister for Immigration (2004) 206 ALR 471 |
| Applicant: | SZMJK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1485 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 27 October 2008 |
| Date of Last Submission: | 27 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2008 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1485 of 2008
| SZMJK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. He arrived in Australia on 21 December 2007. On 9 January 2008, he applied for a protection (class XA) visa from the Department of Immigration & Citizenship. On 6 February 2008, the Department declined to give him a visa. On 15 February 2008, he applied for review of that decision from the Refugee Review Tribunal. In his application for review [CB39] the applicant nominated an address, 99/226 Elizabeth Street, Surry Hills as his mailing address and his address for service. He tells me today that that is the address of "his friend".
On 4 March 2008, a letter was drafted to the applicant, inviting him to appear before the Tribunal. There is a note on the copy letter [CB43] indicating that the letter was in fact dispatched on 5 March 2008. The date of the hearing was 8 April 2008 and therefore the provisions of s.441A of the Migration Act 1958 (Cth) (“the Act”) were complied with. The applicant did not respond to the hearing invitation, and did not attend the hearing. On 16 April 2008, the Tribunal determined to affirm the decision not to grant him a protection visa, and handed that decision down on 8 May 2008. On 10 June 2008, the application applied for a review of the decision from this court.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations are set out at [CB54]-[55] of the Tribunal's decision from a statement that he gave with his protection visa application. He told how he had discovered that the enterprise for which he was working in China had deducted from the salaries of the workers, including himself, moneys which they used for their own purposes and which were not recorded in the company's accounts. A group of workers protected against this practice. This got them into problems with the police [CB 55]:
“They regarded me as an active participant and detained me for nine days. After being released, when they found that I could not do whatever they required me to do, they sentenced me for another year labouring reform. During this period of time I applied for medical treatment outside labouring camp. The working environment was very poor, the leaders used the money for recreation for their own purposes. Last month, they wanted to sell the company's government land for their own profit. We argued with them and they were annoyed, again, they wanted to use the relationship with government to take us to prison. If they took us this time, we would be sentenced to imprisonment. I borrowed large sum of money from relatives to escape to Australia.”
The Tribunal considered the statement but considered that it did not provide enough detail to satisfy the Tribunal as required by s.65 that he was a person to whom Australia owed protection obligations [CB56]-[57]:
“The applicant did not attend the hearing and this leaves the Tribunal with claims which are untested and stated in the most general terms. The Tribunal was unable to explore with the applicant when and why he was accused of opposing the leaders and not following company principles, what the consequences were of these accusations, whether he was part of a group of workers who opposed the work practices, whether other workers were also accused of opposing the leaders and not following company principles and the consequences for them, when, where, how and why he lodged a complaint to a government organization, the outcome of his complaint, when, where and why he was detained for nine days and whether other workers were detained as well.
The Tribunal was unable to clarify with the applicant details of when and why he was sentenced to one year labour reform, whether he was charged with any offences and if so, what those charges were, whether he served that sentence, where he was detained, when he was released why he again argued with the leaders at his workplace …”
The authorities make it clear that the obligation on the Tribunal is for it to be satisfied. This puts a positive requirement to the applicant to satisfy the Tribunal. Unless the state of satisfaction is achieved, no visa can be granted: SZGQZ v Minister for Immigration [2007] FCA 62 at [13]-[14] per Greenwood J; NAST v Minister for Immigration [2004] FCA 86 at [6]-[7] per Allsop J. The grounds that the Tribunal give for not coming to that necessary state of satisfaction are reasonable, given that the applicant did not attend the hearing and that his statement was relatively brief.
In a document entitled, "Amended Application" filed with this court on 9 September 2008, the applicant provides two grounds upon which he says the Tribunal fell into jurisdictional error in coming to the decision which I have discussed. The first is:
“I could not manage to attend the interview, and I was not given another opportunity to explain my case at a hearing.”
Before me today, the applicant said that he could not find his way to the Tribunal. In a rather confused statement, it appeared that he had been twice to the Tribunal offices, but had not spoken with anybody there. He does not say that he wrote to the Tribunal, or telephoned it, or made any other effort to explain his non-appearance, and it is interesting to note that he did not let a very long time pass between receiving the Tribunal's decision and moving this court. I am satisfied that the Tribunal complied with the provisions of s.441A of the Act, and having done so, was entitled to proceed in accordance with s.426A to decide the application without taking any further action to enable the applicant to appear before it: Minister for Immigration v SZHFC [2006] FCAFC 73 at [39].
The second ground of the application is an alleged breach of s.424A, being:
“The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision …”
The Tribunal did not rely on any information for the purposes of coming to its decision. It relied simply on a lack of information provided by the applicant. What the applicant is asking the Tribunal to have done was to provide it with some draft of its proposed decision so that he could respond to it. That type of argument was dealt with by the High Court in SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18], where the word, "information" was held not to include conclusions arrived at by the Tribunal in weighing up the evidence (see also VAF v Minister for Immigration (2004) 206 ALR 471 at [477]).
Today, the applicant told me that he had not received the Green Book. This of course has no bearing upon whether or not the Tribunal fell into jurisdictional error in the manner it came to its decision, but as he confirmed to me that the address in Elizabeth Street was still his postal address, and as I am satisfied that the Green Book was sent there, any failure to pick it up would not amount to something that the court would take into account in considering an adjournment of a case. The fact is that the application was always bound to fail and has done so. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $2000.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 11 November 2008
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