SZNNJ v Minister for Immigration & Anor
[2009] FMCA 752
•28 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNNJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 752 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa to the applicant – applicant is a citizen of People's Republic of China claiming fear of persecution as a Falun Gong practitioner – where applicant did not attend the hearing of the Refugee Review Tribunal – no jurisdictional error – privative clause decision. |
| Migration Act 1958 (Cth), ss.424, 424A, 424B, 425, 474 |
| SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693 distinguished MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82 followed |
| Applicant: | SZNNJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 984 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 July 2009 |
| Date of Last Submission: | 28 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2009 |
REPRESENTATION
| Applicant: | Appeared in Person |
| Solicitor for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 984 of 2009
| SZNNJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is, indeed, an unfortunate case. It is an application by a man from China to review a decision of the Refugee Review Tribunal. The Tribunal decided on 24th March 2009 to affirm the decision of a delegate of the Minister not to grant him a Protection (Class XA) visa. It is relevant and, indeed, central to this case that the Applicant did not attend the Tribunal hearing.
Background
The background to this matter is that the Applicant arrived in Australia from China on 29th October 2008. On 11th November 2008 he applied for a Protection (Class XA) visa. He accompanied that application with a statement, prepared for him by a migration agent, in which he claimed to have a well-founded fear of persecution because he is a practitioner of Falun Gong.
The Applicant claimed in his statement to have been arrested in September 2006 and again in August 2008. Finally, he was able to obtain a visa, after he was released on 25 October 2008, and he left China shortly thereafter. The Applicant enlisted the services of a migration agent, a Mr Songtao Lu.
The Department of Immigration and Citizenship wrote to the Applicant on 23rd December 2008, inviting him to attend an appointment with a Departmental officer on 5th January 2009. A copy of that letter was forwarded to the Applicant's migration agent.
The Applicant did not attend the interview. A delegate of the Minister refused the application for a visa on 5th January 2009. The delegate noted that the Applicant did not telephone to confirm attendance or to advise that there was any reason why he was unable to attend, and did not attend the interview. The delegate stated:
If interviewed, the applicant would have been required to satisfy me that he was a genuine family member of Falun Gong practitioners. I therefore cannot be satisfied that he is a genuine family member of Falun Gong practitioners.
If interviewed, the applicant would have been required to satisfy me that his parents had been arrested and detained as claimed. I therefore cannot be satisfied that the applicant's parents were arrested and detained.[1]
[1] See Court Book at pages 63-64.
Application to the Refugee Review Tribunal
The Applicant, with the aid of his migration agent, submitted to the Refugee Review Tribunal an application for review of the delegate's decision. The application was delivered to the Tribunal by fax on 9th February 2009. The Applicant nominated his migration agent, Songtao Lu, as his adviser and the migration agent's address as his address for correspondence.
The Tribunal wrote to the Applicant that same day, care of the migration agent, at the address given, acknowledging the receipt of the application. I will deal further with that letter shortly.
On 20th February 2009 the Tribunal wrote to the Applicant, care of the migration agent, inviting him to attend a hearing of the Tribunal on 23rd March 2009. The Applicant did not attend the hearing.
The Tribunal noted that the Applicant had not attended and proceeded to deal with the application without taking any further steps to give the Applicant the opportunity to attend the hearing, under the provisions of s.426A of the Migration Act.
The Tribunal noted the Applicant's claims to have been a Falun Gong practitioner, but, due to the insufficiency of the evidence before it, described in the decision as "the very limited information available to the Tribunal", it did not accept that the events described by the Applicant did occur, or that the Applicant was a Falun Gong practitioner, and did not accept the key aspects of his claim.
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision not to grant him a Protection (Class XA) visa.
The decision was dated 24th March 2009 and, the following day, a copy of that decision was forwarded to the Applicant's migration agent. On 27th March 2009, the Applicant's agent telephoned the Tribunal and explained that he had received the invitation to hearing but had not been able to contact the Applicant and, therefore, the Applicant had not attended the hearing. He later found out that the Applicant had been working in a factory more than 10 hours from Sydney, where no mobile phone coverage was available.
The Tribunal officer, however, advised the agent that the matter had been finalised. On 30th March 2009 both the Applicant and the migration agent attended the office of the Tribunal and again explained that the Applicant was unable to be contacted because there was no mobile phone coverage where he was living, which was why he had missed the hearing.
The agent provided a letter to the Tribunal, asking for the Applicant's case to be reopened, and provided a letter from the personnel manager of the Applicant's employer at Wallangarra in Queensland, explaining the difficulty in mobile phone communication. The following day the Applicant again attended the Tribunal and told the officer at the counter that there was a lack of mobile phone reception where he was working and that it was not his fault that he was unable to receive any calls or messages. He provided documents to support that claim. Later, the Applicant again attended the Tribunal, that same day, and sought a further hearing by having the case reopened.
The Tribunal wrote to the Applicant's migration agent on 9th April 2009. The letter said, amongst other things:
Your submission and the further information was forwarded to the Member, who considered the information and decided not to reopen your case.
The decision in your case was made on 24 March 2009. I advise that you were notified of the Tribunal's decision on 25 March 2009. As the Tribunal has made a decision, it no longer has any power to consider your case.[2]
[2] See Court Book at page 103.
Application for Judicial Review
The Applicant filed an amended application on 8th July 2009, setting out one ground. In that ground he said:
I did not receive notice from my migration agent Mr Songtao Lu in respect of the time and date for hearing held by Refugee Review Tribunal.
My mobile cannot be reached because the signal is very weak in the area I work.
He attached four documents to his amended application relating to the difficulties in mobile phone reception in the Wallangarra area. Two of those documents are already on the Court Book.
The Applicant has attended Court today and has made submissions to the Court in which he has set out the same account.
The first thing to make clear is that the Court has no reason to doubt what the Applicant has said. There appears to be evidence which clearly supports his claim that he is in a difficult area for mobile telephone reception. There is no reason to doubt that his migration agent attempted to telephone the Applicant on several occasions, but was not able to make contact with him. Clearly, the Applicant did not attend the hearing and it is clear that that is because he did not receive notice from his migration agent about the time and date of the hearing.
The Applicant has told the Court that, whilst there was a mistake, it was not his fault and that he is the one who is in the difficult position that he missed his hearing, which he says is through no fault of his own.
Court’s Considerations
It has been explained to the Applicant that, in order to set aside the Tribunal decision, the Court must be satisfied that the decision is affected by jurisdictional error. The first thing that the Court must do is to look at whether the Tribunal decision itself shows jurisdictional error, or whether there is a matter in the Tribunal's arrangements leading up to the hearing that indicated jurisdictional error.
First of all, the Court should look at the decision by the Tribunal to proceed to decide the review without giving the Applicant a further opportunity to attend, under the provisions of s.426A of the Migration Act. The Tribunal addressed this issue in its decision record, at [25]:
The Tribunal has satisfied itself that the letter of 20 February 2009 complied with s.425A of the Act and was despatched by prepaid post or other prepaid means, within 3 working days of the date of the document to the last address for service provided to the Tribunal by the applicant, in connection with the review, in compliance with s.441A(4) of the Act. The Tribunal determines, pursuant to s.426A, to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.[3]
[3] See Court Book at page 89.
It is clear from the material in the Court Book that the Tribunal had no way of knowing that the Applicant had not received notice of the Tribunal hearing. The Tribunal had forwarded the hearing invitation to the Applicant's address for correspondence given in his application. The letter is dated 20th February 2009; it related to a hearing on 23rd March 2009. Clearly, the Tribunal allowed more than sufficient time for the Applicant to attend the hearing. The letter of invitation, which can be found at pages 76 and 77 of the Court Book, complies with the requirements of s.425A of the Migration Act.
There was nothing to indicate to the Tribunal Member on the date of the hearing that the Applicant had not been made aware of the invitation to the hearing because his migration agent could not get in touch with him. Accordingly, I am satisfied that the Tribunal did not fall into error when it proceeded to decide the review under the provisions of s.426A of the Migration Act.
The reason why the Tribunal was not satisfied was due to the inadequacy of the information before it. That is so often the case in situations where applicants do not attend Tribunal hearings, for whatever reason (see: SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs[4]; SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[5]; and NAVX v Minister for Immigration & Multicultural & Indigenous Affairs[6].)
[4] [2005] FCA 1811 at [18]
[5] [2005] FCA 1306 at [16]
[6] [2004] FCAFC 287 at [5]
When the Applicant did not attend the hearing, the Tribunal having already indicated in its letter of invitation that the information before the Tribunal was not sufficient to allow it to make a decision in his favour, in the absence of further information, either written or oral, from the Applicant itself, it was more than likely that the Tribunal would not be satisfied that the Applicant met the requirement for a protection visa.
The next matter to be considered is the representations made by the Applicant's migration agent after the decision was handed down, between 27th March and 31st March 2009. The Tribunal, of course, wrote to the Applicant's migration agent on 9th April 2009, saying that, as the Tribunal had made a decision, it no longer had any power to consider the Applicant's case. That, of course, is correct in law. The Tribunal, once it had made its decision, was functus officio; it had no power to recall its decision once it had been made.
The circumstances, of course, for the Applicant are extremely serious; he has missed a hearing. However, that does not give him a reason at law which would enable the Court to set aside the decision of the Tribunal. There has to be a jurisdictional error. In SZIGQ & Anor v Minister for Immigration & Citizenship & Anor[7], an appeal from the Federal Magistrates Court, Downes J said, at [5]:
However, the authorities are clear that the reason for non‑attendance at a hearing does not matter. If the Tribunal has complied with ss.425 and 425A of the Migration Act in inviting an applicant to attend the hearing, it may proceed under s.426A of the Act to consider and decide the matter without conducting any further inquiries.
[7] [2007] FCA 328
That is what the Tribunal did.
Conclusion
The Applicant is not legally represented in the proceedings before this Court. However, in the circumstances, the Court will look carefully at all of the material before it, in order to ascertain whether there is an arguable jurisdictional error.
There is no breach of s.425 of the Act and certainly no suggestion that s.424A has been contravened.
The Court's attention, however, has been drawn to the decision of Raphael FM in SZNAV & Ors v Minister for Immigration & Anor[8]. In that case the Court considered a letter of acknowledgement of application forwarded by the Tribunal to an applicant and took the view that there was a breach of s.424B(2) of the Act.
[8] [2009] FMCA 693
It is submitted on behalf of the Minister that this is not such a case. It is submitted, in fact, that SZNAV should be distinguished. The letter in SZNAV, which attracted the critical eye of the Court, informed the applicant in that case as to what was expected of him and said at [20]:
· Immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English should be translated by a qualified translator.
The Court found that that was a letter that fell within s.424 of the Migration Act and that a breach of s.424B(2) had arisen. The Court considered the Full Court decision of MZXRE v Minister for Immigration and Citizenship[9]. At [29] of SZNAV, the Court said:
[9] [2009] FCAFC 82
The second case is MZXRE v Minister for Immigration [2009] FCAFC 82. The Full Court in that case, North, Graham and Rares JJ, accepted submissions that a letter which sought additional information but did not specify the prescribed period for response was not an invitation within the meaning of s.424(2) of the Act:
"It is common ground that this letter did not amount to an invitation to the appellant to give additional information within the meaning of s.424(2) of the Act. This was because it had not specified a date in accordance with s.424C(1)(b), before which any information had to be provided.”
The letter which is referred to in these comments was sent to an applicant whose case had been remitted to the Tribunal for reconsideration. I have seen the letter referred to in MZXRE. Among other things, it stated:
"You are invited to provide any documents or written arguments you wish the Tribunal to consider which you have not already provided to the Tribunal. Any documents should be provided as soon as possible.”
There is a fundamental matter which differentiates this letter from the letter currently under consideration. It is that the letter in MZXRE invites the applicant to provide ‘documents’ and ‘written arguments’ but does not make a request for ‘information’ as such. A document is not considered ‘information’ and therefore not ‘additional information’ under s.424(2) (see SZLPO at 110).
I look now at the letter from the Tribunal to the Applicant in this case. That letter was written on 9th February 2009. It is in a familiar form and, relevantly and crucially, it says:
If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.[10]
[10] See Court Book at page 74.
In my view, the letter in the application under review differs significantly in its form from the letter that was before the Court in SZNAV. Whilst not identical in its terms, it is substantially the same as the letter that was referred to by the Full Court in MZXRE v The Minister. Accordingly, it is not open to this Court to distinguish the decision in MZXRE as was done in SZNAV; quite the reverse, in fact. In my view, the letter in the decision under review is materially different to that that was before his Honour in SZNAV, to the extent that SZNAV should be distinguished on its facts.
In the matter before me, I am satisfied that the Tribunal's letter of acknowledgement was not a request for information under s.424 of the Act and, consequently, did not breach s.424B of the Act. As such, no jurisdictional error has been made out. There is, in my observation, no jurisdictional error in the Tribunal decision.
In the absence of jurisdictional error, it is a privative clause decision, as defined by s.474 of the Migration Act. Accordingly, it is not open to the Court to grant relief, by way of an order in the nature of certiorari, setting aside the Tribunal decision. It follows therefore that, unfortunately for the Applicant, the application must be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 6 August 2009
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