SZMKJ v Minister for Immigration

[2008] FMCA 1228

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMKJ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1228

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.426A, 441A

Le v Minister for Immigration and Citizenship [2007] FCAFC 20
SZLCR v Minister for Immigration [2008] FMCA 154

Applicant: SZMKJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1543 of 2008

Judgment of: Driver FM

Hearing date: 1 September 2008

Delivered at: Sydney

Delivered on: 1 September 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the first Respondent: Ms T Quinn
DLA Phillips Fox

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 in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1543 of 2008

SZMKJ

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 20 May 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 by reason of her association with the practice of Falun Gong. 

2. The applicant arrived in Australia on 27 October 2007 and applied to the Minister's Department for a protection visa from 5 November 2007. The Minister's delegate rejected that application on 1 February 2008. On 26 February 2008 the applicant applied to the Tribunal for review of the delegate's decision. The Tribunal was unable to make a favourable decision upon the papers and invited the applicant to attend a hearing by letter dated 11 March 2008. The applicant did not attend at the appointed time. The Tribunal elected to proceed in her absence pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal found that the applicant's claims were a series of unsubstantiated and general assertions that lacked details. The Tribunal stated that the applicant had not provided any corroborative evidence of her claims. The Tribunal was satisfied that the applicant had been given a proper opportunity to support her application and found that without further details, clarifications, corroborative evidence and without having had the opportunity to explore the claims with the applicant at a hearing and test the evidence, the Tribunal was not satisfied with the factual claims and was not able to make a favourable decision.

3. These proceedings began with a show cause application filed on 17 June 2008.  The applicant continues to rely upon that application.  The application asserts that the applicant's husband was persecuted because of his Falun Gong practice and alleges bias against the Tribunal.  The application asserts without particulars that the Tribunal made jurisdictional errors.  The application is supported by a short affidavit by the applicant which I received.  I also received as evidence the court book filed on 6 August 2008.

4. The applicant told me first that the court book was held by a friend who had assisted her with her application to the Court. Later she said she had no knowledge of the court book. The court book was apparently sent by express mail to the applicant at the address for service nominated in a notice of change of address service filed in Court on 11 July 2008. The applicant told me from the bar table that she had changed her address again although she had not given notice of that further change. She was able to provide her new address for service from a mobile phone record. I provided the applicant with a copy of the court book for the purposes of today's hearing.

5. The applicant was distressed during the hearing this morning. In her oral submissions she said that she wanted her case to go back to the Tribunal and she could not return to China. On prompting from me as to the circumstances of her non-attendance before the Tribunal, she said that she had been working outside Sydney at the time and her migration agent had not informed her of the hearing invitation. She agreed that that failure by her agent was not attributable to any fault by the Tribunal.

6. The court book records on pages 68 and 69 that the hearing invitation was sent to a Ms Weiming Qian by registered post at the address of PO Box 1510, Auburn, NSW 1835. Ms Qian was nominated as the applicant's advisor in her application for review (court book, page 61). The postal address of PO Box 1510, Auburn, NSW 1835 was also nominated. A telephone land line and mobile number and facsimile number were also given although in handwriting underneath are the words "mail please" suggesting that mail correspondence was preferred.

7. It appears that Ms Qian was at the time a registered migration agent. On page 62 of the court book at section D of the application, the applicant ticked the box nominating her agent as her authorised recipient for the purposes of correspondence. It follows that the Tribunal's obligation was to communicate with the applicant by writing to her migration agent at the migration agent's nominated address. The hearing invitation was sent to the migration agent at the nominated address.  It was sent by registered post. There is no direct evidence that it was sent within three working days of the date that it bore but neither is there any evidence that it was not.

8. The Tribunal in its decision (court book, page 81) states that on 11 March 2008 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision from that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 28 April 2008. The Tribunal went on to say that, in accordance with s.426A of the Migration Act, the Tribunal had decided to proceed to make a decision on the review without taking any further action to allow or enable to applicant to appear before it.

9. While it would probably have been preferable for the Minister to produce evidence of dispatch of the hearing invitation within the prescribed time and while it would have been preferable for the Tribunal to specifically note its satisfaction that its discretion under s.426A was properly enlivened, in the absence of any assertion by the applicant that the hearing invitation was not dispatched in accordance with the Act and in the absence of any evidence from her of non-receipt by the agent I am willing to proceed on the basis that the invitation was sent in accordance with the requirements of the Act and Migration Regulations 1994 (Cth).

10. I note in that regard that the applicant's agent worked for an organisation called Eternity International Pty Ltd.  The name of the organisation was used in correspondence from the Tribunal dated 1 February 2008 and 26 February 2008.  The name of the organisation was omitted from the hearing invitation dated 11 March 2008.  I have considered whether the omission of the agent's organisation gives rise to any irregularity in the hearing invitation.  I conclude that it did not. 

11. In SZLCR v Minister for Immigration [2008] FMCA 154 at [39] this Court held that a post code was not part of an address for the purposes of the Tribunal's obligations pursuant to s.441A of the Migration Act. Further, in Le v Minister for Immigration and Citizenship [2007] FCAFC 20 the Full Federal Court held that the Minister's, and hence the Tribunal's obligation, where an authorised recipient was appointed was to communicate with the authorised recipient even in circumstances where the decision maker knew that the authorised recipient was no longer at the address specified by the applicant. It would follow in my view that the name of the organisation at which the authorised recipient worked was immaterial to the lawful dispatch of the hearing invitation.

12. There is, on my reading of the available material, no arguable case of jurisdictional error by the Tribunal. 

13. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

14. The applicant repeated her desire to have her case remitted to the Tribunal and restated that she could not return to China. She is also concerned about her capacity to work. She did not, however, make any submissions on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  2 September 2008