SZNBO v Minister for Immigration

[2009] FMCA 186

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNBO v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 186

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicants are citizens of China claiming fear of persecution for reason of religion – no jurisdictional error.

Migration Act 1958 (Cth), ss.425, 425A, 426A, 441, 474

S146 of 2003 v Minister of Immigration & Multicultural Affairs [2006] FCA 502 cited
SZDXC v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1306 followed
NBBL v Minister of Immigration & Multicultural and Indigenous Affairs [2006] FCA 1045 referred to
SZBCS v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1457 followed
NADK v Minister of Immigration & Multicultural and Indigenous Affairs [2002] FCAFC184 referred to

Applicant: SZNBO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3314 of 2008

Judgment of: Scarlett FM

Hearing date: 26 February 2009

Date of Last Submission: 26 February 2009

Delivered at: Sydney

Delivered on: 26 February 2009

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3314 of 2008

SZNBO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The issue in this is that the applicant complains that the Tribunal fell into error because it decided his application for review in his absence.  He did not attend the hearing of the Refugee Review Tribunal and claims that he did not do so because he did not receive the letter of invitation from the Tribunal.  He claims that the Tribunal fell into error by not giving him the opportunity to attend another hearing.  The background to this matter is that the applicant is a citizen of China.  He applied for a Protection (Class XA) Visa on 5 June 2008.  A delegate of the Minister refused his application for a Visa on 2 September 2008. 

2. On 3 October 2008, the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.  He gave his residential address as his address for correspondence[1].  The Tribunal wrote to the applicant on 7 October 2008 acknowledging the receipt of his application.  That letter was sent by registered post to the address given by the applicant[2].  The Tribunal then wrote to the applicant on 22 October inviting him to attend the hearing on 19 November 2008.  That letter was also sent by registered post to the address given by the applicant[3]. 

   [1] See Court Book at page 80

   [2] See Court Book at page 83 -84

   [3] See Court Book at page 85

3. However, that letter was returned to the Tribunal unclaimed.  The registered post letter marked "return to sender" was sent back on 10 November 2008 and received by the Tribunal on 13 November[4]. The applicant did not attend the Tribunal hearing. That hearing took place on 19 November and the Tribunal exercised its power under s.426A of the Migration Act to decide the application without giving the applicant a further opportunity to attend the hearing.

   [4] See Court Book at page 91 - 97

4. The Tribunal wrote to the applicant on 19 November 2008 and sent him a copy of the decision.  That letter was sent to the applicant's address by registered post[5].  The applicant informed the Court that he received that letter and he received the Tribunal's first letter acknowledging receipt of his application.  It is accepted, however, that the letter inviting him to the hearing was not received because it was returned to the Tribunal unclaimed.  The Tribunal decision record can be found in the Court book at pages 103 through to 113. 

   [5] See Court Book at page 101

5. The Tribunal noted that the applicant did not attend the hearing and did not contact the Tribunal to explain his absence.  In the decision record, the Tribunal set out the information given to the department by the applicant and noted that he had made an additional sur place claim for protection.  That claim was set out in para.25 of the Tribunal decision and again at para.36[6]. The Tribunal dismissed the application on the basis that there was insufficient evidence from the applicant for it to be satisfied that he was a person to whom Australia has protection obligations under the Refugee's Convention.

   [6] See Court Book at page 107 - 109

6. The Tribunal noted that the applicant had been put on notice that it was unable to make a favourable decision on the information before it, but he did not provide any further information to support his claims.  The Tribunal set out that without further information it was not satisfied about several aspects of the applicant's key claims and in para.44, 45 and 46[7].  And also noted that the applicant had not provided a sufficient level of detail necessary to establish to the Tribunal's satisfaction the relevant facts of those claims. 

   [7] See Court Book at page 110

7. The Tribunal found that it was not satisfied on the evidence before it that the applicant was persecuted for reasons of his political opinion, or imputed political opinion.  The Tribunal was not satisfied on the evidence that the applicant could not, or would not, return to China because of his fear of being persecuted for political opinion, imputed political opinion, or due to his religious beliefs.  The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) Visa. 

8. The applicant commenced proceedings for judicial review by filing an application and an affidavit on 15 December 2008.  He seeks orders from the Court in the nature of Certiorari & Mandamus, setting aside the Tribunal's decision and requiring the Tribunal to review his application.  The grounds of the application are these:

   (1)notice for attending the hearing at RRT has not been received.

   (2)jurisdictional errors have been made. 

9. The applicant has provided some further information in his affidavit that was affirmed on 15 December 2008.   I note that the applicant had the benefit of an interpreter in the Mandarin language to assist him when he affirmed his affidavit.  In his affidavit he sets out this information in five paragraphs. 

   (1) I lodged my review application to the RRT on 3 October 2008.

   (2)I received an acknowledgment of application from the RRT.

   (3)I have never received a notice letter from the RRT inviting me to attend a hearing.

   (4)I received a notice letter in late November 2008 from the RRT regarding my application and a copy of the refusal decision made by the RRT.

   (5)On 2 December 2008 I telephoned the RRT through a Mandarin interpreter.  I complained that it was not fair to make a decision without me attending a hearing.  I requested to get an opportunity to have a hearing, however, my request was refused.

10. The applicant has not filed any written submissions, but he has attended the Court and made oral submissions to the Court.  Essentially, in his oral submission, he confirmed what he had said in his affidavit.  The lawyers for the Minister have not challenged the truth of anything set out in his affidavit.  The Minister relies on a written outline of submissions filed on 19 February 2009 and an affidavit of Audrey Lizanne Echevarria, lawyer, to which has been annexed a copy of a document entitled Registered Post and Optional Services Multiple Lodgements. 

11. That document refers to the posting by registered post of the Tribunal's letter of invitation of the applicant.  I note that the letter was sent 22 October 2008 which is the date of the letter.  Again, there was no challenge by the applicant to any of the material contained in Ms Echevarria's affidavit.  In dealing with the Tribunal's decision, it is clear that the Tribunal considered the material set out in the applicant's application for a protection Visa.  It also considered the sur place claim that was made by the applicant for the first time when he attended an interview with the Minister's delegate.

12. Essentially that claim was that after the applicant arrived in Australia, he went to a Buddhist temple and went through an initial ceremony.  He later realised that the particular cult is Yi Guan Dao, which is illegal to practise in China, and feared that he would be arrested if he returned to China for his religious beliefs.  Essentially the Tribunal considered all of the applicant's claims based on the material before it.  However, in the circumstances of the Tribunal writing to the applicant, admittedly in the letter that he did not receive, advising him that it had considered the material, but was unable to make a favourable decision based on that material, it is not surprising that the Tribunal found itself unable to be satisfied that the applicant was entitled to a protection Visa. 

13. The applicant had not attended the hearing and had not provided any further documentary information and in the absence of that material the Tribunal was not satisfied that the applicant had a well founded fear of persecution.  There is no jurisdictional error on the part of a Tribunal where it finds there is a lack of information due to the applicant's non attendance at the hearing when finding against an applicant.  See re applicant S146 of 2003 v Minister of Immigration & Multicultural Affairs[8] and also SZDXC v Minister for Immigration & Multicultural and Indigenous Affairs[9], particularly at [16].

    [8] [2006] FCA 502

    [9] [2005] FCA 1306

14. It is clear that the invitation was sent by the Tribunal by registered post, which is one of the methods set out in s.441A of the Migration Act. Subsection 441A(4) provides that the invitation must be despatched within three working days of the date of the document by prepaid post or by other prepaid means to either the last address for service provided to the Tribunal by the recipient, or the last residential address provided to the Tribunal by the recipient in connection with the review. In this case, I am satisfied that the letter was sent on the day it was dated, which was certainly within three working days of its date, by registered post, which is by definition prepaid, to the address provided by the applicant to the Tribunal.

15. Accordingly, the applicant is deemed to have received the invitation within seven working days of the day in which it was sent (see subsections 441C(4) and 441G of the Act). The invitation gave the applicant 14 days notice in accordance with s.425A of the Act and reg.4.35D of the Migration Regulations. The Tribunal, it is submitted by the Minister, and I believe correctly, was entitled to proceed under s.426A of the Act without making a further inquiry[10].

    [10] See NBBL v Minister of Immigration & Multicultural and Indigenous Affairs [2006] FCA 1045

16. It is also significant that the letter of invitation was returned to the Tribunal unclaimed.  The Tribunal received that document back on 13 November which was prior to the date of the hearing.  That does not mean, however, that the Tribunal had an obligation to defer the hearing.  This is been clearly set out by Hon. Bennett J in SZBCS v Minister for Immigration & Multicultural and Indigenous Affairs[11] at [32]. Her Honour held that the Tribunal, in a similar situation, had a discretion to defer the hearing but it is only if the Tribunal is obliged to do so that there is jurisdictional error.

    [11] [2005] FCA 1457

17. Her Honour referred to NADK v Minister of Immigration & Multicultural and Indigenous Affairs[12] and said:

    As was found in NADK and is apparent from the statutory scheme the fact that the appellant was unaware of the hearing and that the Tribunal may have had notice of this was of no legal relevance. 

    The Tribunal was not required to take into account the fact that the invitation to hearing sent to be appellant's home address had been "returned to sender". 

    [12] [2002] FCAFC 184

18. In the circumstances, I am not satisfied that jurisdictional error has been made out.  The applicant has also raised the issue that, although he was informed of the operation of the RRT legal advice scheme when he attended Court on 19 January 2009, he did not hear from the lawyer concerned.  A check of the Court file shows that a referral was made to a barrister on the RRT panel by letter dated 22 January 2009.  The letter contained the applicant's correct residential and postal address and his correct mobile telephone number. 

19. Nevertheless, the applicant claims that he did not hear from the lawyer and told the Court that he telephoned the lawyer's chambers on the day before the hearing, with the assistance of an interpreter, and he claimed that the lawyer did not know who he was.  It certainly seems as if the applicant has been very unfortunate.  There is insufficient evidence for the Court to make any finding, other than that a referral was made to a lawyer on the panel by the Court in sufficient time shortly after the first Court date.  Correct information was provided, but there is no information that would enable the Court to make any finding that the lawyer concerned did not act appropriately.

20. In any event, there is no right to legal advice and it is not a matter that the Court can take into account in deciding whether or not to grant the application.  It is certainly the case that the applicant has been unfortunate and that for one reason or another, the letter of invitation to the hearing was returned unclaimed.  The applicant expressed the belief that the letter may have been stolen, but that is clearly not the case because it was most definitely returned to the Tribunal.  Why the other two letters written to the applicant and sent by registered post were safely delivered and the important letter was not, has not been explained.

21. In the circumstances, I am satisfied that no jurisdictional error has been made out and the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act.  As it is a privative clause decision, it is not subject to orders in the nature of Certiorari or Mandamus.  It follows that the application must be dismissed. 

22. I am satisfied that this is an appropriate matter to make an order for costs on the part of the first respondent.  The applicant to pay the first respondent's costs fixed in the sum of $4000.  I require a transcript of my reasons for this decision and I will remove the application from the list of cases awaiting finalisation.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  10 March 2009