SZQQE v Minister for Immigration - [2012] FMCA 80

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQQE v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 80

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant failing to attend Tribunal hearing – Tribunal unable to be satisfied about his claims – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 425A, 426A, 476

SZDQO v Minister for Immigration [2005] FCA 1026
Yilmaz v Minister for Immigration (2000) 100 FCR 495

Applicant:

SZQQE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2058 of 2011

Judgment of:

Driver FM

Hearing date:

9 February 2012

Delivered at:

Sydney

Delivered on:

9 February 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms L Weston
Minter Ellison

INTERLOCUTORY ORDERS

The Court directs that the name of the applicant not appear on the transcript of proceedings.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 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 2058 of 2011

SZQQE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 15 August 2011. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China and had made claims of religious persecution. The following statement of background facts relating to the applicant’s protection claims and the decisions of the delegate and the Tribunal on them is derived from the Minister’s written submissions filed on 2 February 2012.
On 10 August 2010, the applicant arrived in Australia from China on a subclass 676 visitor visa issued on 27 July 2010 [court book “CB” 1].
On 5 November 2010, the applicant made an application for a protection visa. In his protection visa application form (form 866C), the applicant set out that he left China to avoid the persecution of the Chinese government [CB 7], and that if he returns to China, he will be prohibited from practising his religion and will be arrested if he does [CB 8]. More specifically, the applicant makes the following claims [CB 9]:
My first contact with the Christianity was through a friend. I was deeply touched by the scripture of "Bible".
I formerly joined an underground church in Shenyang in September 2005.
We gather every Wednesday and Sunday to read Bible, pray to God and share experience...
Our activities were prohibited by the government. The police raised our place several times.
Our leader was first taken away by the police in May 2009. He was detained for 15 days...
The leader was taken away by the police for the second time in September 2009. He was sent to a labor camp for 1 year.
I started to lead man's group after the leader was arrested.
The police raided our church in December 2009 and took me away.
I refused to disclose the details of other church members. Therefore I was detained for 15 days and was tortured during the period.
I was then hiding in a relative's place in the country. I contacted my family while hiding and was told the police visited my home for a few times.
I was concerned about my safety. I prayed to God what I should do next. I was instructed that I should leave my country.
I obtained a visa to Australia through my friend.
During my stay in Australia, I phoned my family and they told me that the police is still searching for me.
I am able to freely attend Church and gather with members at home without concerns in Australia.
I was worried that I could be arrested once again if returned and my normal religious practise will be prohibited.
In the applicant's protection visa application he stated that his postal address was 15 The Avenue, Ashfield, NSW (applicant's first nominated postal address) [CB 2]. This was the last address for service provided to the Minister’s Department by the applicant for the purposes of receiving documents.
On 14 December 2010, the Department sent the applicant an invitation to attend an interview with an officer of the Department on 22 February 2011 [CB 26–27]. The invitation was sent to the applicant's first nominated postal address [CB 26].
The applicant contacted the Department on 21 February 2011 advising that he was unable to attend the interview with the Department scheduled for 22 February 2011 as he had been involved in a car accident and hurt his back [CB 33]. On 21 February 2011, the applicant faxed a medical certificate to the Department certifying the applicant unfit to continue his usual occupation from 21 February 2011 to 22 February 2011 [CB 35].
On 14 March 2010, the Department wrote to the applicant inviting the applicant to lodge additional information relevant to his case and advising that if additional information was not received within 14 days, the applicant's application would be assessed on the information already before the Department [CB 37]. The applicant did not lodge any additional information [CB 101, [27]].
On 11 April 2011, a delegate of the Minister refused the applicant's application for a protection visa [CB 52–60]. Notification of that decision was sent to the applicant's first nominated postal address [CB 39–42].
On 11 May 2011, the applicant lodged an application for review of the delegate's decision by the Tribunal [CB 61–64]. The applicant gave, as the address to which he wanted relevant correspondence to be sent, 17 Simpson Street, Auburn, NSW 2144 (the applicant's second nominated postal address) [CB 63].
On 10 June 2011, in accordance with s.425(1) of the Migration Act 1958 (Cth) (“the Migration Act”), the Tribunal invited the applicant to appear before the it to give evidence and present arguments relating to the issues arising in his case [CB 74–75]. The invitation noted that [CB 74]:
The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.
That invitation was sent to the applicant’s second nominated postal address [CB 74].
The Tribunal’s hearing invitation noted that the hearing had been scheduled for 2 August 2011, at 10.30am (NSW time), at Level 11, 83 Clarence Street, Sydney [CB 74]. The invitation also noted that [CB 74]:
if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.
The applicant completed and returned to the Tribunal a Response to Hearing Invitation indicating that he would attend the hearing scheduled for 2 August 2011 [CB 81]. Despite this, on 1 August 2011, the applicant sent to the Tribunal a medical certificate certifying the applicant unfit to continue his usual occupation from 1 August 2011 to 5 August 2011 [CB 83].
On 1 August 2011, the Tribunal contacted the applicant to advise that as a result of receiving the applicant's medical certificate, the hearing scheduled for 2 August 2011 has been postponed to 12 August 2011 [CB 84]. On 1 August 2011, the Tribunal sent the applicant a letter advising that the hearing had been rescheduled to 12 August 2011 [CB 85–86]. The letter was sent to the applicant's second nominated postal address. Despite this, the applicant did not attend the rescheduled hearing on 12 August 2011 [CB 92].
On 15 August 2011, the Tribunal decided to affirm the delegate's decision not to grant a protection visa to the applicant [CB 96–102]. The Tribunal notified the applicant of that decision by letter dated

15 August 2011, addressed to the applicant's second nominated postal address [CB 95].
The Tribunal found that, as a result of the applicant's non-attendance before the Tribunal, [CB 101, [32]]:
in the present case there is insufficient information on which I can be satisfied that the Applicant would face a real chance of serious harm if he returned to China.
The Tribunal also made the following findings:
The applicant's claims concerning his alleged involvement with a Christian church in China are minimal, vague and unsubstantiated from any external source...He provides little or no other information about the circumstances of his alleged Christian worship, the nature and affiliation of his church, how his activities may have affected his family and friends or how it was that he was able to continue running his business for eight months while living in hiding from the police [CB 101, [33]].
In the present case the written material does not provide a sufficient basis to be satisfied that the Applicant was ever a member of an illegal Christian church in China, that he was ever arrested or detained or that he would face harm for such a reason in the future. He does not claim to fear harm in China for any other reason than his alleged Christian involvement and no other reason is apparent on the face of the information before the Tribunal [CB 102, [35]].
Accordingly, the Tribunal concluded that:
a)on the basis of the information before it, it was “not satisfied there is a real chance that the Applicant would face harm in China” [CB 102, [36]];
b)it was “not satisfied he [the applicant] has a well-founded fear of persecution for a Convention reason should he return to China now or in the reasonably foreseeable future” [CB 102, [36]];
c)it was “not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention” [CB 102, [37]]; and
d)that “the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa” [CB 102, [37]].
These proceedings began with a show cause application filed on 13 September 2011. The applicant continues to rely upon that application. There are two grounds in the application:
1. I believe the immigration failed to provide me with an opportunity for interview while I was not in good health.
2. The Tribunal failed to give me a fair treatment.
The application is supported by a short affidavit filed with it, which I received as a submission. I received as evidence, with no objection from the applicant, Ms Weston’s affidavit filed on 3 February 2012.
I received as evidence the court book filed on 27 October 2011. The applicant told me that he had not received the court book, and I took the opportunity to tell him what was contained in it. I invited him to object to my receipt of it as evidence, and he told me he had no objection.
The applicant also told me that he had not received the Minister’s outline of written submissions. I adjourned temporarily while those submissions were read to him by the interpreter. The applicant did not file written submissions, but took the opportunity to make oral submissions.
Ground 1 of the applicant's application states:
I believe the immigration failed to provide me with an opportunity for interview while I was not in good health.
The Minister submits that it is unclear by the applicant's use of the word “immigration” whether the applicant is raising a claim that the Minister’s delegate failed to provide the applicant with an opportunity to attend an interview, or whether the claim is intended to be made against the Tribunal.
To the extent that the applicant intends to raise a claim in relation to the Minister’s delegate, the Minister submits that this is not a permissible ground of judicial review. Under s.476(2)(a) of the Migration Act, the Federal Magistrates Court does not have jurisdiction in relation to a primary decision, which includes a decision of the Minister’s delegate. In any event, even if the Minister’s delegate's decision was found to be affected by some form of jurisdictional error, the valid decision of the Tribunal “cures” that error: Yilmaz v Minister for Immigration (2000) 100 FCR 495 per Gyles J at [92]–[96].
To the extent that the applicant is raising a claim that the Tribunal did not comply with its obligation under s.425(1) of the Migration Act to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in his claim, the Minister submits that the Tribunal complied with that obligation, however the applicant failed to attend the scheduled hearing [CB 99, [24]].
In conducting its review, the Tribunal was obliged to comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Migration Act (see s.422B(1) of the Migration Act). Relevantly, s.425 of the Migration Act, contained in Division 4 of Part 7, provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Minister submits that the Tribunal complied with its obligations under s.425(1) of the Migration Act. In particular, the Tribunal wrote to the applicant at the applicant's second nominated postal address on 10 June 2011 inviting the applicant to attend a hearing on 2 August 2011 [CB 74–75]. When the applicant advised on 1 August 2011 that he was unwell and would not be able to attend the hearing scheduled for 2 August 2011, the Tribunal rescheduled the hearing for 12 August 2011 [CB 85–86]. The Tribunal advised the applicant of the rescheduled hearing in a letter dated 1 August 2011 sent to the applicant's second nominated postal address [CB 85–86]. The applicant did not respond and failed to attend the rescheduled hearing [CB 92].
In both the Tribunal’s letters of 10 June 2011 and 1 August 2011, the Tribunal advised the applicant that “if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it” [CB 74 and CB 85]. As the applicant failed to attend the rescheduled hearing, the Minister submits that the Tribunal was entitled to proceed to make a decision without taking any further steps to enable the applicant to appear before it under s.426A of the Migration Act. The Minister therefore submits that the Tribunal acted within its jurisdiction by making its decision on the written material before it.
The Minister submits that Ground 1 of the applicant's application should be rejected for the above reasons.
The applicant claims in Ground 2 of his application that the Tribunal committed jurisdictional error in that:
The Tribunal failed to give me a fair treatment.
The applicant has not particularised how the Tribunal failed to afford the applicant procedural fairness and the Minister submits that there is no evidence that it failed to do so.
The Minister further submits that there is no evidence that the Tribunal failed to comply with any of its other obligations contained in Division 4 of Part 7 of the Migration Act. In particular, the Minister submits that there was no information of a type which it was required to put to the applicant for comment under s.424A of the Migration Act.
The Minister submits that Ground 2 of the applicant's application should be rejected for the above reasons.
It was apparent from the applicant’s oral submissions that, although he is clearly an intelligent man with a good grasp of the review process in which he has been engaged, he was labouring under a misapprehension as to this Court’s jurisdiction. The applicant proceeded in the mistaken belief that the Court could judicially review the decision of the Minister’s delegate[1].
[1] The applicant revealed, during the course of argument, that he has been assisted in the proceedings before this Court, and apparently also before the Tribunal, by a person who may be a migration agent, although no such assistance was disclosed to the Tribunal or the Court in the applications completed by the applicant. I informed the applicant of his entitlement to complain to the Office of Migration Agents Registration Authority, if the agent is registered, and to the Minister’s Department, if the agent is not registered.
The applicant’s concern in these proceedings is that the Minister’s Department invited him to attend an interview and then, when he informed the Department that he would be unable to attend the interview because of an injury to his back, which was evidenced by a medical certificate, the Department decided that it would not require him to attend an interview. The applicant sees this as the deprivation of a hearing opportunity.
When I asked the applicant whether he had any concern about the process followed by the Tribunal, he told me three times that he had nothing to say in relation to the Tribunal’s process. In essence, the applicant is concerned only about what he sees as the unfairness in the process followed by the Minister’s Department.
As I explained to the applicant, the decision of the Minister’s delegate was a “primary decision” as relevantly defined in the Migration Act[2]. The Court has no jurisdiction to review a primary decision[3].

In practical terms, the applicant had a further hearing opportunity before the Tribunal. I am satisfied from the evidence of Ms Weston that the Tribunal met its obligation to invite the applicant to a hearing. The court book discloses that the applicant received that invitation and responded to it. The applicant subsequently sought a postponement of that hearing due to illness. That request was granted. The applicant was informed by letter dated 1 August 2011 that his hearing had been rescheduled to 12 August 2011. I accept from the decision of the Federal Court in SZDQO v Minister for Immigration [2005] FCA 1026 that in circumstances where the Tribunal decides to reschedule a contemplated hearing at the behest of an applicant, s.425A of the Migration Act does not apply in relation to the notice of the rescheduled hearing. The applicant did not attend the rescheduled hearing [CB 92].
[2] Section 476(4) of the Migration Act.
[3] Section 476(2)(a) of the Migration Act.
The applicant had also not raised any particular concern about the delegate’s decision in his review application lodged with the Tribunal. Neither had he provided any information to the Tribunal in addition to that which he had previously provided to the Minister’s Department. In those circumstances, the Tribunal was unable to be satisfied that the applicant’s claims should be accepted.
I find, first, that the Court has no jurisdiction to review the decision of the Minister’s delegate. I find secondly that there is no arguable case of jurisdictional error by the Tribunal.
I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The application having been dismissed, costs should follow the event. The Minister seeks scale costs. The applicant asked for information about the court scale, but did not resist an order for costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 17 February 2012