SZMZJ v Minister for Immigration

[2009] FMCA 147

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMZJ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 147

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – consideration of when the Tribunal decision was made in the light of amendments to the Migration Act 1958 (Cth) taking effect on 27 October 2008 bearing upon that issue – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.425, 426A, 430A, 474
Migration Legislation Amendment Act (No 1) 2008 (Cth)

Minister for Immigration v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
SZMZC v Minister for Immigration [2009] FMCA 124

Applicant: SZMZJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3128 of 2008

Judgment of: Driver FM

Hearing date: 26 February 2009

Delivered at: Sydney

Delivered on: 26 February 2009

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Mr B May
Australian Government Solicitor

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 $2,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3128 of 2008

SZMZJ

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 30 October 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Background facts relating to the applicant's protection visa claims and the delegate's and Tribunal's decision on them are set out in the Minister's written submissions filed on 17 February 2009.  I adopt as background for the purposes of this judgment paragraphs 2 through to 10 of the Minister's written submissions:

   The applicant is a citizen of the People's Republic of China, who entered Australia on 27 May 2008.[1]  On 12 June 2008, she lodged an application for a Protection (Class XA) visa (a PVA) with the Department.[2]  In a statement accompanying her PVA, the applicant claimed to be a Falun Gong practitioner, who had been arrested while proselytising in Tiananmen Square in December 2002, and detained and tortured in a mental hospital in Liaoning for three months.[3]  She claimed that she bribed a powerful police officer to help her leave for Australia, where she can "exercise Falun Gong without restriction".[4]

   [1] Relevant Documents (“RD”) 27, 33

   [2] RD 1-26

   [3] RD 36

   [4] RD 36

   A delegate of the Minister invited the applicant to attend an interview, which was scheduled for 24 July 2008.[5]  The applicant did not attend.[6]

   [5] RD 40

   [6] RD 49

   Delegate's decision

   The delegate made his decision on 24 July 2008.[7]  In the absence of an interview, the delegate was unable to be satisfied that the applicant had a well founded fear of persecution.[8]  Accordingly, the delegate refused to grant the visa.[9]

   Before the Tribunal

   On 25 August 2008, the applicant lodged an application for review of the delegate's decision with the Tribunal [10]. That application provided the same residential and postal addresses as had been provided in the PVA.[11]  The application did not expand upon the applicant's claims.

   On 25 August 2008, the Tribunal wrote to the applicant at her postal address, acknowledging her application.[12]  That letter was not returned to the Tribunal.

   On 3 September 2008, the Tribunal wrote to the applicant pursuant to s.425 of the Migration Act 1958 (Cth) (“the Migration Act”).[13]  The Tribunal explained that it was unable to make a favourable decision on the information before it, and invited the applicant to attend a hearing, which was scheduled for 29 September 2008.[14]  The Tribunal sent the invitation by registered post to the applicant's postal address.[15]  The letter was not returned to the Tribunal.  The applicant did not attend the hearing, nor did she subsequently contact the Tribunal to explain her non-attendance.[16] In the circumstances, the Tribunal proceeded to make its decision without taking any further action to allow or enable the applicant to appear before it, pursuant to s.426A of the Migration Act.

   On 13 October 2008, the Tribunal wrote to the applicant at her postal address, inviting her to attend the handing down of its decision.[17]  That letter was not returned to the Tribunal.

   Tribunal decision

   On 30 October 2008, the Tribunal handed down its decision.[18]  The Tribunal noted that the applicant had provided only a bare outline of her claims.[19]  Without further details, the Tribunal was not satisfied of any of the applicant's claims, including her claim to have practiced Falun Gong in Australia.[20]  The Tribunal was not satisfied on the evidence before it that the applicant would become, or would be perceived to be, a Falun Gong practitioner in the foreseeable future, or that she would come to the attention of the Chinese authorities because of her political views.[21]  The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution, and accordingly affirmed the delegate's decision.[22]

   A copy of the Tribunal’s decision was sent to the applicant's postal address.[23]  That letter was not returned to the Tribunal.

   [7] RD 42

   [8] RD 49

   [9] RD 49

   [10] RD 50

   [11] RD 13, 51, 52

   [12] RD 54

   [13] RD 56

   [14] RD 56

   [15] RD 56

   [16] RD 58,66

   [17] RD 60

   [18] RD 62

   [19] RD 67

   [20] RD 67-68

   [21] RD 68

   [22] RD 68

   [23] RD 62

2. These proceedings began with a show cause application filed on 28 November 2008.  The applicant continues to rely on that application.  There are five grounds in the application which I incorporate in this judgment:

   1. There was no evidence or the other materials to justify the making of the decision.

   2. The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

   3. The Tribunal member not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter.

   4. I really fear the persecution from my original country. P R China.

   5. The persecution is for the reason of a member of a particular group-Falun Gong.  I was arrested and sent to jail just because I am a genuine Falun Gong practitioner.

3. The applicant also relies upon a short affidavit which I received as a submission.  The Minister relies upon an affidavit by Benjamin James May made on 19 February 2009.  That affidavit relates to despatch of the Tribunal's hearing invitation.  I also received as evidence the book of relevant documents filed on 6 January 2009.

4. The applicant did not appear in person for today's hearing.  The Court was, however, successful in contacting her by telephone.  She explained that she had sprained her ankle yesterday and had been unable to contact either the Minister's solicitors or the Court because she could not find any relevant contact details.  She confirmed receipt of all documents sent to her by the Minister's solicitors.  She agreed to proceed by way of a telephone hearing.  However, she did not wish to make any oral submissions.

5. The Minister's submissions deal with the grounds raised in the show cause application.  Subject to my following comments, I agree with those submissions and adopt paragraphs 12 to 16 of them for the purposes of this judgment, with minor amendments:

   The application sets out five purported grounds of review.  The first respondent submits that none of the grounds raises an arguable case for the relief claimed.  In the absence of particulars, each ground is addressed briefly below:

   1.There was no evidence or the other materials to justify the making of the decision.

   The first ground is misconceived.  The Tribunal did not require any evidence to make its decision.  In the absence of a positive finding that the applicant satisfied the criteria for the grant of the visa, the Tribunal was obliged to affirm the delegate's decision (Minister for Immigration v VSAF of 2003 [2005] FCAFC 73).

   2.The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

   3.The Tribunal member not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter.

   The second and third grounds do not identify any reviewable error.

   4.I really fear the persecution from my original country, P R China

   5.The persecution is for the reason of a member of a particular group - Falun Gong.  I was arrested and sent to jail just because I am a genuine Falun Gong practitioner.

   The fourth and fifth grounds attempt to argue the merits of the applicant's claim, an argument which the Court is not empowered to entertain (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). The first respondent notes that the Tribunal did not characterise the applicant's claims as falling within any particular Convention ground, as it was not satisfied that the claimed persecution had occurred. The fourth and fifth grounds do not identify any jurisdictional error on the part of the Tribunal.

   Conclusion

   The grounds of the application fail to disclose any arguable case that the Tribunal fell into jurisdictional error. In the absence of such error, the Tribunal’s decision is a privative clause decision, and accordingly is not amenable to review in this Court (s.474 Migration Act).

6. Although not specifically raised by the applicant, I am satisfied that the Tribunal met its obligations under s.425 of the Migration Act. The Tribunal set out the relevant details concerning the hearing invitation sent to the applicant in paragraph 20 of its reasons at RD66:

   In a letter dated 3 September 2008 and posted to the applicant at the last address for service provided by the applicant in connection with the review, the applicant was notified that the Tribunal was unable to make a decision in her favour on the material before it.  The applicant, accordingly, was invited to attend a hearing of the Tribunal to give oral evidence and present arguments in support of her claim.  The hearing was scheduled for 29 September 2008.  The applicant was advised that if she failed to attend the scheduled hearing or did not contact the Tribunal to seek a postponement of the hearing, the Tribunal might make a decision on her case without further notice.  The Tribunal is satisfied that the hearing invitation letter was dated and dispatched by registered prepaid post within three working days of 3 September 2008, the date of the document.  The applicant did not appear before the Tribunal on the day and time and place which she was schedule to appear.  The applicant did not attempt to contact the Tribunal after the hearing date had passed offering an explanation for her absence or seeking a further hearing.  In these circumstances, in pursuant to s.426A of the Act, the Tribunal is satisfied that it has discharged its obligation to give the applicant an opportunity to appear before it to give evidence and has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

7. I accept from the affidavit of Mr May and the Australia Post despatch record attached to it that the Tribunal was correct in finding that the hearing invitation was despatched within three working days of the date that it bore. Having discharged its obligations to invite the applicant to a hearing, the Tribunal was entitled in the exercise of its discretion pursuant to s. 426A of the Migration Act, to proceed without hearing from her further. In the event there was insufficient material before the Tribunal to enable it to make a decision favourable to the applicant. I see no arguable case of jurisdictional error in the approach taken by the Tribunal.

8. An issue which I should mention concerns the Tribunal procedure of handing down its decision on 30 October 2008. The Tribunal decision was signed on 13 October 2008. The handing down invitation was issued on that day[24]. In SZMZC v Minister for Immigration [2009] FMCA 124 at [11] to [15] I dealt in my oral judgment with what appeared to me to be an irregular procedure by the Tribunal following amendments to the Migration Act to repeal the procedure for the handing down of decisions. I found in that case that the Tribunal decision was not made on the date of the handing down of the decision but rather on the date that the decision was signed and that in consequence the Tribunal had breached s.430A of the Migration Act as it now stands, which obliges the Tribunal to notify the applicant within 14 days of the date in which the Tribunal's decision is taken to have been made. I made that decision on the basis that the relevant amendments to the Migration Act commenced on the date of Royal Assent of the Act, namely 15 September 2008. I made that assessment on the basis of information available on the website concerning the dates of commencement of various parts of the Act which amended the Migration Act. The relevant amendments were made by items 19 and 20 of Schedule 1 to the Migration Legislation Amendment Act (No 1) 2008 (Cth).

   [24] RD 60

9. I am now satisfied that the basis for my oral reasons in SZMZC was wrong. That judgment has since been corrected in writing. In a proclamation issued by the Governor General on 3 October 2008 the Governor General, among other things, fixed 27 October 2008 as the day on which Schedule 1 of the amending legislation commences. It follows that the date of commencement of the relevant amendments to the Migration Act is not 15 September 2008 but 27 October 2008. It also follows that there was no error by the Tribunal in SZMZC.

10. In the present case the Tribunal's invitation to the handing down of the decision was issued prior to the commencement date of the amendments. The handing down took place after the commencement of the amendments. The amending legislation includes transitional provisions at item 38. The transitional provisions make clear that, provided that a hearing handing down invitation is issued before the commencing day, the handing down procedure remains. Accordingly, the Tribunal decision was made on the date of the handing down on 30 October 2008 and there was no breach by the Tribunal of s.430A(1) of the Migration Act as it now stands.

11. I find that the applicant has failed to raise any arguable case of jurisdictional error by the Tribunal. Neither is any arguable of jurisdictional error apparent to me from my own examination of material.

12. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

13. Costs should follow the event in this case. The Minister seeks costs in the sum of $2,200. The applicant thought that was a lot of money but I am satisfied that it is a fair and reasonable assessment on a party and party basis. Scale costs in this instance would be $2,500. 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 $2,200.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  2 March 2009