SZMVM v Minister for Immigration
[2008] FMCA 1664
•18 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMVM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1664 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the applicant was assisted by a migration agent who perpetrated a fraud upon her – whether there was a fraud perpetrated upon the Tribunal by any conduct of the applicant’s migration agent – whether the Tribunal was entitled to exercise its discretion under s.426A of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65(1)(b); 425; 425A; 426A; 474; 494B; pt.8 div.2 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 SZEZI v Minister for Immigration and Multicultural Affairs [2005] 1995 |
| Applicant: | SZMVM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2646 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 11 December 2008 |
| Date of last submission: | 11 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2008 |
REPRESENTATION
| Applicant appearing on her own behalf |
| Solicitors for the Respondent: | Ms B. Anniwell, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2646 of 2008
| SZMVM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 August 2008 and handed down on 18 September 2008.
The applicant claims to be citizen of the People’s Republic of China (“China”) and to fear persecution in China by reason of her Christian faith (“the Applicant”).
The Applicant arrived in Australia on 16 May 2008 having departed legally on a passport issued in her own name and a visitor visa.
On 23 May 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 13 June 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 10 July 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. In her application for review, the Tribunal identified as her address for correspondence a post office box in Haymarket.
On 25 July 2008, the Tribunal wrote to the Applicant at the post office box in Haymarket, inviting the Applicant to come to a hearing before the Tribunal to give oral evidence and present arguments. The letter informed the Applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The letter identified the date, time and place of the scheduled hearing and informed the Applicant that she should contact the Tribunal immediately if there was a difficulty for her having a hearing on that date. The letter also informed the Applicant that the Tribunal may make a decision without further notice if the Applicant failed to appear before the Tribunal at the scheduled hearing. The letter enclosed a Response to Hearing invitation form and requested the Applicant to return that form to the Tribunal by 12 August 2008 and, further, to send to the Tribunal any documents or written arguments that she wished the Tribunal to consider. The Tribunal did not receive the Response to Hearing invitation form or any further documents, information or response to its letter.
On 29 August 2008, the Tribunal affirmed the decision under review.
A fair reading of the Tribunal’s decision record discloses that it accurately summarised the Applicant’s written claims made in support of her protection visa application. The Tribunal noted that the Applicant made no new claims nor submitted any further material or information in support of her review application to the Tribunal.
The Tribunal noted in its decision record that it wrote to the Applicant on 25 July 2008 inviting the Applicant to come to a hearing on 28 August 2008. The Tribunal noted that the invitation was sent to the Applicant at the address for correspondence identified by her on the application form. The Tribunal noted that the letter advised the Applicant that if she did not attend and a postponement was not granted the Tribunal may make a decision on her case without further notice. The Tribunal noted that the Applicant had not appeared before it on 28 August 2008 and noted that the Applicant had not provided a telephone number to the Tribunal or the Department on which she could be contacted. As a result, the Tribunal purported to exercise its discretion pursuant to s.426A of the Act to decide to make its decision on the review without taking any further action to enable the Applicant to appear before it.
The Tribunal found that the Applicant’s claims lacked “crucial details”. In particular, the Tribunal noted that the Applicant provided no dates of alleged events, nor of any details regarding her Christian beliefs or the extent of her involvement in Christianity, the type of church she claimed to have attended in China or the type of Christianity she claimed to be involved.
In the light of its finding that the Applicant’s claims were lacking in detail, the Tribunal was not satisfied that the Applicant met the statutory criteria for being a refugee. It is for the Applicant to satisfy the Tribunal that she meets the criteria required. If the Tribunal is not so satisfied, s.65(1)(b) of the Act mandates that the Tribunal must refuse her protection visa application.
On 14 October 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision to affirm the decision under review to refuse her a protection visa. The grounds of the application are as follows:
“1, I am a Chinese citizen and I am Christian for years. I have been warned by my local security and company to be put in prison if I continue this activity.
2, I have never given up my faith as a Christian and I have been pursuing the truth. .I can not go back to China since I am very scared to be sentenced.
3, I have been went to church every Sunday since I arrived in Australia. I believe that Chinese government still look for me if I return. My family told me not to go back since they came to my home twice and asked where I am about.”
On 23 October 2008, the Applicant appeared at a directions hearing where I explained to the Applicant that the grounds in her application made bare assertions and did not disclose any error capable of review by this Court. Directions were then made giving the Applicant leave to file and serve an amended application giving complete particulars of each ground of review relied upon together with any additional evidence by way of affidavit by 20 November 2008. The Applicant was also directed to file and serve written submissions in support of her application 7 days before today’s hearing. However, no further documents or material were filed by the Applicant.
The Applicant confirmed that she received advice from a panel member of the NSW RRT Legal Advice Scheme on 12 November 2008.
At the hearing before this Court, the Applicant was invited to make whatever submissions she wished in support of her application. For the first time, the Applicant alleged that her migration agent had told her not to submit any evidence. The Applicant did not say that she had not received the Tribunal’s letter, dated 25 July 2008, inviting her to come to a hearing before the Tribunal. Rather, she said she gave all the letters she received from the Tribunal to a migration agent who told her not to go to the hearing. No migration agent is identified either on the Applicant’s protection visa application or her application for review.
The Applicant gave sworn evidence before this Court that the name of her migration agent was, Mr Xheng Wang. She said his telephone number was 0413532219. The Applicant said she was introduced to Mr Wang by a friend in Queens Square after she had lodged her application with the Department for a protection visa on 23 May 2008, but before she received notification from the Department of the refusal of the Delegate to grant her a protection visa made on 13 June 2008. The Applicant said that she paid Mr Wang two sums of money, the first $850 for her protection visa application, and the second $800 for assistance in seeking review from the Tribunal of the Delegate’s decision. The Applicant’s evidence was unclear in relation to the applications in respect of which she paid Mr Wang to assist her. I understand her evidence ultimately to be that she paid Mr Wang to assist her in relation to her review application to the Refugee Review Tribunal and her application to this Court.
In cross-examination the Applicant agreed that she really wanted to go to the Tribunal hearing and that she told her migration agent that she wished to do so. She said that he told her that it would not make any difference. It was put to the Applicant in cross-examination that it was her choice whether or not she went to the hearing before the Tribunal. The Applicant responded that, yes, she should have gone but that she could not find where to go. It was then put to the Applicant that she had changed her evidence as to the reason why she did not want to attend the hearing. Namely, that she did not know where to go. In cross-examination, the Applicant agreed that she could have gone to the Tribunal hearing but had chosen not to because she did not know where to go.
In the circumstances, I find that the Applicant understood she could go to the Tribunal hearing; that she had regard to the fact that her migration agent had told her that it would not make a difference; and, that she decided not to go either for that reason or because she did not know where to go, or both.
The recent authorities have made clear that before it can be considered whether or not there was any conduct amounting to a fraud upon the Tribunal, the Court must first be satisfied that a fraud was perpetrated upon the visa applicant. The level of satisfaction required is that required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 (Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [33]; SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (“SZFDE”)).
The evidence before this Court does not establish any fraud upon the Applicant perpetrated by Mr Wang. The High Court of Australia made clear in SZFDE that “bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.” at [53]. At its highest, the Applicant’s evidence could be said to support an allegation that her migration agent gave her advice that was either bad or negligently given. That does not amount to a fraud upon the Applicant.
Accordingly, I find that there was no fraud perpetrated by Mr Wang upon the Applicant. In the circumstances, there can be no fraud on the Tribunal.
Otherwise, the Tribunal considered whether it was open to it to exercise its discretion under s.426A of the Act. Section 426A of the Act is as follows:
“(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.”
The Tribunal correctly found that the only address for correspondence provided by the Applicant was the address to which it sent its letter of invitation. Otherwise, the Tribunal’s letter of invitation, dated 25 July 2008, complied with the requirements of s.425 of the Act in that it gave to the Applicant a notice of invitation in accordance with s.425A of the Act which identified the time, date and place of the scheduled hearing and otherwise complied with the relevant statutory regime.
In the bundle of relevant documents, tendered and identified as Exhibit 1R, is a copy of the letter dated 25 July 2008 to the Applicant inviting her to a hearing with a registered postmark number and a handwritten note “By Post 25-7-08” and a signature. As stated above in these Reasons, the Applicant has not given evidence to this Court that she did not receive this letter. Rather, her evidence is that she passed on her correspondence to her migration agent. In the circumstances, there is no evidence before this Court to suggest that the Tribunal’s letter was not posted on the day asserted on the letter, namely 25 July 2008.
In the circumstances, the overwhelming inference, and the inference that I draw, is that the letter of invitation dated 25 July 2008 was sent to the Applicant within 3 days of the date of that letter in compliance with s.494B of the Act.
In the circumstances, the Tribunal was entitled to exercise its discretion, pursuant to s.426A of the Act, to make its decision on the review without taking any further action to enable the Applicant to appear before it.
The ultimate reason for the Tribunal’s lack of satisfaction was the inadequacy in the Applicant’s material and the lack of opportunity by the non appearance of the applicant to explore the Applicant’s assertions further. A fair reading of the Tribunal’s decision makes clear that it read all of the material and, having evaluated its content and weight, was unable to reach a specified mental state of satisfaction that the Applicant met the criteria for being a refugee. In such circumstances, there was no information that the Tribunal is required to put to the Applicant (SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [12] per Allsop J; SZEZI v Minister for Immigration and Multicultural Affairs [2005] 1995 per Allsop J at [29]). The findings and conclusions of the Tribunal were open to it on the evidence and material before it and for the reasons it gave.
A fair reading of the Tribunal’s decision makes clear that the Tribunal had regard to the only information before it in support of the Applicant’s claims. As stated above in these Reasons, it is for the Applicant to satisfy the Tribunal that she meets the criteria for being a refugee. If the Tribunal is not so satisfied then the Tribunal must refuse the Applicant a protection visa pursuant to s.65(1)(b) of the Act.
Otherwise, the conclusions of the Tribunal were open to it on the material before it. As stated above in these Reasons, it is for the Applicant to satisfy the Tribunal that she meets the criteria for being a refugee.
In the circumstances, a fair reading of the decision of the Tribunal makes clear the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
The decision of the Tribunal is not affected by jurisdictional error. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The proceeding before this Court commenced by way of application filed on 14 October 2008 is dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 18 December 2008
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