SZOOP v Minister for Immigration

Case •

[2010] FMCA 875

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOOP v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 875
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant not attending Tribunal hearing – Tribunal having insufficient information to support a favourable decision – no arguable case of jurisdictional error.
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 425, 425A, 426A, 441A, 441C
Migration Regulations 1994 (Cth)

Minister for Immigration v VSAF of 2003 [2005] FCAFC 73

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

NAST v Minister for Immigration [2004] FCAFC 208

NAVX v Minister for Immigration [2004] FCAFC 287
Applicant: SZOOP
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1772 of 2010
Judgment of: Driver FM
Hearing date: 10 November 2010
Delivered at: Sydney
Delivered on: 10 November 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr M Alderton
Sparke Helmore

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 $2,935 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 1772 of 2010

SZOOP

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 made on 14 July 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Malaysia and had made claims of ethnic persecution as a Chinese-Malaysian.  He had been in Australia for about five years before claiming protection. 

  2. The following statement of background facts relating to the applicant’s claims and the Tribunal decision on them are derived from the Minister’s written submissions filed on 18 October 2010. 

  3. The applicant is a citizen of Malaysia who arrived in Australia on 13 September 2004 (court book “CB” 13) on a Visitor’s visa. The applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship on 11 February 2010: CB 1-25. The applicant claimed that he was discriminated against because of his Chinese ethnicity: see in particular CB 17-20.

  4. By a letter dated 17 March 2010 the applicant was invited to attend an interview with a delegate of the Minister scheduled for 20 April 2010: CB 37.  The applicant did not respond to the letter and did not attend the interview: CB 51.4. In a decision dated 23 April 2010, the Minister’s delegate refused to grant the applicant a protection visa: CB 48-54.  The delegate referred to country information that indicated ethnic Chinese in Malaysia enjoyed equal rights (CB 53.4) and that the applicant had failed to substantiate at an interview the limited information provided in support of his claims: CB 53.4. Accordingly, the delegate concluded he did not have a well-founded fear of persecution: CB 53.

The Tribunal proceedings and decision

  1. On 25 May 2010, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 58-61.

  2. By a letter dated 8 June 2010 and sent by registered post, the Tribunal invited the applicant to attend a hearing on 14 July 2010: CB 64-65.

  3. The letter dated 8 June 2010 constituted a valid invitation to the applicant to attend a hearing. Specifically, the Tribunal’s letter:

    a)was addressed and sent to the address included in the applicant’s application for review to the Tribunal and nominated by him as the address to which he elected correspondence to be sent: CB 60;

    b)contained an invitation to the applicant to appear before it to give evidence: s.425(1) of the Migration Act 1958 (Cth) (“the Migration Act”);

    c)provided notice of the specified day, time and place of the hearing: s.425A(1) of the Migration Act;

    d)was given to the applicant by one of the means specified in s.441A of the Migration Act namely, registered prepaid post: s.441A(4) of the Migration Act;

    e)was awaiting collection from Australia Post since 9 June 2010 and was accordingly dispatched, within three working days of the date of the letter: s.441A(4)(a) of the Migration Act;

    f)provided a period of time to the applicant, which was at least the prescribed period of 14 days: regulation 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”). “Notification” is taken to have been received seven working days after the date of the document (s.441C(4) of the Migration Act), so the applicant is taken to have received notification on 17 June 2010 and the prescribed period of 14 days expired on 1 July 2010;

    g)contained a statement of the effect of s.426A – namely, the options available to the Tribunal if the applicant failed to appear before it: s.425A(4) of the Migration Act.

  4. Accordingly, the invitation complied with the statutory requirements contained in ss.425(1) and 425A of the Migration Act and regulation 4.35D of the Regulations.

  5. No response to the hearing invitation was received by the Tribunal and, critically, the applicant failed to appear at the scheduled hearing on 14 July 2010: CB 67. The applicant did not contact the Tribunal to explain his failure to attend: CB 76 at [31].

  6. The Tribunal made a decision to affirm the delegate’s decision on 14 July 2010: CB 72-77. The Tribunal considered all the applicant’s claims and noted that they lacked detail: CB 77 at [36]-[37]. As the applicant did not attend the Tribunal hearing, it was unable to obtain details of his claims or discuss the applicant’s delay of five and half years in lodging his application for a protection visa after arriving in Australia. The Tribunal concluded that in light of the lack of details and without the opportunity to explore the applicant’s claims in detail it could not be satisfied that he was at risk of persecution in Malaysia: CB 77 at [38].

  7. The essential basis of the Tribunal’s decision was its inability to be satisfied on the evidence before it that the applicant satisfied the criterion set out in s.36(2) for the grant of a protection visa: CB 77 at [38]. No jurisdictional error is apparent in the Tribunal’s approach or findings because the facts advanced by the applicant did not cause it to be satisfied as to the applicable visa criteria. It is difficult to achieve the requisite degree of satisfaction if an applicant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected.1 The Tribunal was not required to accept the applicant’s claims at face value and the weight to be given to his claims was a matter for the Tribunal to assess as part of its fact-finding function.[1] 

    1 NAST v Minister for Immigration [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ).

    2 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282.

  8. The Tribunal had written to the applicant and notified him that it was unable to make a favourable decision on the information he had provided. In circumstances where he failed to attend a hearing before the Tribunal to give oral evidence and present arguments in support of his claims, the rejection of his application was the inevitable consequence.[2]

    3 NAVX v Minister for Immigration, op. cit., at [5].

  9. These proceedings began with a show cause application, filed on 16 August 2010.  There are three grounds in that application:

    1. That a breach of the rules of natural justice occurred in connection with the making of the decision.

    2. That the applicant was denied procedural fairness in connection with the making of the decision.

    3. That the decision involved an error of law, whether or not the error appears on the record decision.

  10. Grounds 1 and 2 are different ways of making the same assertion.  None of the grounds are particularised.  The application is supported by a short affidavit in which the applicant asserts that he is a refugee. 

  11. I made procedural orders in this matter on 5 October 2010.  I gave the applicant the opportunity to file and serve an amended application with particulars.  I also gave the applicant the opportunity to file additional evidence.  He has not taken up those opportunities.  I note from the correspondence file that the applicant has had the benefit of advice from Mr Mark Seymour under the Minister’s panel advice scheme.

  12. The applicant failed before the Tribunal because he did not respond to the hearing invitation lawfully sent to him by the Tribunal and he did not attend the Tribunal hearing to which he was invited.  It should have been apparent to the applicant, from that hearing invitation, that if he did not attend the Tribunal hearing he could not expect a favourable outcome.

  13. The applicant told me today from the bar table that there were three reasons why he did not attend the Tribunal hearing.  The first was that he was busy working.  The second was that he was worried that his application would be unsuccessful.  The third was that he did not fully understand the correspondence which was sent to him and which he received.

  14. While those circumstances may be readily understandable, they do not point to any jurisdictional error by the Tribunal.  The Tribunal was unable to make a favourable decision because the applicant had made claims in the most general of terms, which the Tribunal was unable to explore further with him.  The failure by the applicant to attend the hearing before the Tribunal rendered the outcome, effectively, inevitable. 

  15. The applicant sought information from me as to his available options at this point.  I gave him some general information.  It is apparent that the applicant probably would have been assisted by some professional migration advice for the purposes of his review application to the Tribunal.  He would probably benefit from that advice now.  That is a matter for him.

  16. The applicant has failed to identify any arguable case of jurisdictional error by the Tribunal.  Neither is any arguable case of error apparent to me from my own reading of the available material.  That material is comprised in the court book, filed on 13 September 2010, which I received as evidence.

  17. I am not satisfied that the application has raised an arguable case for the relief claimed. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

  18. In the light of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Scale costs represent slightly more that half the Minister’s solicitor and own client costs.  The applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

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

Date:  12 November 2010


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