SZREQ v Minister for Immigration and Anor (No.2) - [2012] FMCA 323

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZREQ v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2012] FMCA 323

MIGRATION – Review of Refugee Review Tribunal decision – application for reinstatement of judicial review application which had been dismissed due to the non appearance of the applicant at a directions hearing – consideration of the reasons for the applicant’s non attendance and his representation at various stages of the visa assessment and review process.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.91R

SZREQ v Minister for Immigration [2012] FMCA 192

Applicant:

SZREQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 372 of 2012

Judgment of:

Driver FM

Hearing date:

19 April 2012

Delivered at:

Sydney

Delivered on:

19 April 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms M Stone
DLA Piper

ORDERS

The application in a case filed on 13 April 2012 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 372 of 2012

SZREQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application in a case filed on 3 April 2012. That application seeks to set aside the following orders made by me on 14 March 2012:
1. The application is dismissed, pursuant to rule 13.03C(1)(c) 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 $1,250 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
Those orders were to dismiss a show cause application under the Migration Act1958 (Cth) (“the Migration Act”) on account of the non-appearance by the applicant at first court date directions. I also made a costs order and a procedural order, in order to bring those orders to the attention of the applicant. I gave reasons for my decision SZREQ v Minister for Immigration & Anor [2012] FMCA 192.
The applicant is a male person from China whose substantive application before the Court was to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal’s decision was made on 23 January 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had claimed persecution in China, apparently on the basis of imputed political opinion, because of his actions in protesting the compulsory acquisition and demolition of his dwelling. The applicant was disbelieved in fundamental respects, including on the question of where he was living in China, both by the Minister’s delegate and by the Tribunal.
The show cause application filed on 20 February 2012 provided a postal address for service of PO Box 367, Auburn, New South Wales 1835. I commented on that address in my previous interlocutory judgment. The application in a case filed on 3 April 2012 provides a postal address for service of PO Box 373, Campsie, New South Wales 2194. The same address is provided on an affidavit made by the applicant on 3 April 2012 and furnished in support of the application in a case. I received that affidavit as evidence. The applicant was not required for cross-examination.
I also received as evidence, the court book filed on 10 April 2012. The applicant had not received a copy of that court book, but I went through the documents in it with him seriatim.
The applicant and I had an extensive discussion concerning the circumstances of the applicant’s non-attendance at court on 14 March 2012 and the circumstances of his representation before the Minister’s Department, the Tribunal and the Court. That discussion was stimulated, in part, by my earlier judgment and, in part, by the applicant telling me that he has no knowledge of the postal address for service provided on his application in a case and the supporting affidavit.
The discussion between me and the applicant, and the examination of the documentary record, establishes to my satisfaction the following things.
The applicant has been assisted from the time he lodged his protection application to the present, by a firm he knows in the Chinese language as “Northern Home”.
On page 8 of the court book appears question 14 of the protection visa application form, which asks the question: “Did you receive assistance in completing this form?” The question is answered in the negative but details are included of a person called Yao Li. I am satisfied that that person assisted the applicant with his protection visa application. I am also satisfied that the same person witnessed the applicant’s affidavit made on 3 April 2012 in support of the application in a case. The applicant knows that person to be Charlie Li. The applicant understands that Charlie Li manages and operates a migration business which the applicant knows as Northern Home. The applicant has visited the premises of that business several times. The business is located in Auburn near the railway station, but the applicant is unsure of the street address. He communicates with Charlie Li also on Mr Li’s mobile telephone number. He has always used the same mobile telephone number. Charlie Li employs four or five other persons to provide migration services. The applicant was brought to Court this morning by one of those persons.
The applicant acknowledged that he signed all documents in the court book purportedly bearing his signature.
Some documents in the Chinese language were explained to him, but other documents completed in the English language were not explained to him. For example, the applicant’s review application to the Tribunal[1], was not explained to the applicant.
[1] appearing from Court Book (“CB”) 93
The applicant stated that the residential address provided for him in that application was out of date, as he had left that address at the time the review application was completed. He states that the residential address disclosed in the application in a case filed on 3 April 2012 and the supporting affidavit, are his current residential address.
I note that the residential address provided for the applicant in the show cause application filed on 20 February 2012 was incorrect. The applicant confirmed this. The applicant also confirmed that the postal addresses of PO Box 367 Auburn, New South Wales 1835 and PO Box 1519 Auburn, New South Wales 1835, which were both used during the visa assessment and review process, are not his postal addresses and are, almost certainly, postal addresses used by Charlie Li’s business. Correspondence sent to those postal addresses by the Minister’s Department and the Tribunal was brought to the applicant’s attention by Charlie Li or one of his employees.
It was not until 18 June 2011 that the involvement of a migration agent responsible for the applicant’s claims was formally disclosed[2]. The agency that purportedly represented the applicant was Eternity International Proprietary Limited, and the particular agent was Zhanqi Li. The applicant understands this Mr Li to be an employee of Charlie Li. The applicant was not aware of the business name Eternity International Pty Ltd. I surmise that this is another name for the business the applicant knows as Northern Home.
[2] CB 43
Zhanqi Li continued to represent the applicant before the Tribunal. When the applicant was invited to attend a hearing before the Tribunal he responded to that application[3]. The applicant advised that he would attend the Tribunal hearing and Mr Zhanqi Li advised that he would not.
[3] CB 103
Significantly, the mobile telephone number provided on that response to hearing invitation is the mobile telephone number for Charlie Li provided by the applicant to me orally today.
On 20 October 2011 the Tribunal was informed of a change of agent. From that point the applicant was represented by Ms Jie Yu. The applicant knows Ms Yu and says that she is also an employee of Charlie Li. The applicant attended the hearing conducted by the Tribunal on 8 December 2011. Ms Yu did not.[4]
[4] CB 105
The applicant entrusted his affairs to Mr Charlie Li’s business from the time he arrived in Australia and made a claim for protection. He continues to rely upon Mr Charlie Li’s firm in the proceedings before this Court.
The applicant knew nothing of the filing of his show cause application on 20 February 2012. I surmise that it was filed by someone from Mr Charlie Li’s firm on behalf of the applicant.
The applicant deposes that he was unable to attend the first court date directions on 14 March 2012 because of illness. He says that he was seriously ill for in excess of 40 days. The illness first appeared about two months ago. He told me from the bar table that he was unable to contact the court by telephone because he had no credit on his mobile phone. He was unable to obtain medical assistance because he does not have a Medicare card and is not working. He was, however, able to contact his wife in China using the telephone of a friend. Apparently acting on his wife’s advice, he purchased Chinese herbal medicines. He appears today to be in good health.
I am willing to accept, from the untested evidence of the applicant, that he was unwell on 14 March 2012. I am also prepared to accept that practical difficulties prevented him from contacting the Court. As I noted in my earlier interlocutory judgment, an attempt to contact the applicant on his mobile telephone number on that day was unsuccessful. There are some troubling aspects concerning the assistance provided to the applicant by Mr Charlie Li’s migration firm. Leaving those concerns aside, however, I accept that the applicant has provided a plausible explanation for his non-attendance at court on 14 March 2012.
I am, nevertheless, not persuaded that the interests of the administration of justice call for the reinstatement of the show cause application. That application contains three grounds:
1. RRT has failed to comply with the rules of application of S91R of the Migration Act.
2. RRT simply dismiss all my evidence without following proper evidentiary rules
3. I am deprived of any opportunities to give proper and considered responses to the reason of RRT’S final decision to refuse my application.
The first ground asserts a failure to comply with s.91R of the Migration Act. That assertion finds no support in the record of the Tribunal decision. Secondly, the applicant asserts that the Tribunal simply dismissed all his evidence without following proper evidentiary rules.
The Tribunal is not a court and is not bound by the rules of evidence. The Tribunal is bound by the code of procedure in the Migration Act. In compliance with its obligations under s.425 of the Migration Act, the Tribunal invited the applicant to a hearing in order to answer questions and submit evidence in relation to his claims. He did so. The hearing opportunity was a fair one. The applicant was on notice from the delegate’s decision that there were fundamental credibility concerns about his protection claims. Those concerns, and others held by the presiding member, were discussed with the applicant at the hearing. The applicant was unable to allay the Tribunal’s concerns. If anything, those concerns were heightened following the hearing.
The Tribunal made comprehensive findings of untruthfulness against the applicant. The applicant considers that those findings were unreasonable and unfair. The findings were, however, in my view, open to the Tribunal on the material before it. There was no procedural unfairness and there was no unreasonableness in any legal sense.
Thirdly, the applicant contends that he was deprived of any opportunity to give a proper and considered response to the reasons of the Tribunal’s final decision to refuse his application. That ground reflects a misunderstanding of the review process. The applicant’s opportunity to persuade the Tribunal as to the truthfulness of its claims arose before the Tribunal decision, not after it. The applicant was given a fair opportunity to persuade the Tribunal about his claims. He was, however, unsuccessful in that attempt.
In my view, there is no arguable case of jurisdictional error by the Tribunal in its decision or in the process it followed. If the application were to be reinstated it would be doomed to fail. I will order that the application in a case filed on 13 April 2012 is dismissed.
In consequence of the dismissal of the application in a case, the Minister seeks an order for costs fixed in the amount of $1,000. This is in addition to the costs I awarded on 14 March 2012. The applicant claimed an inability to pay costs and also expressed dissatisfaction with the hearing today, as well as with the earlier process before the Tribunal. Impecuniosity is not a reason for the Court to refrain from making a costs order. I have informed the applicant of his opportunity to seek leave to appeal against my judgment to the Federal Court. I am persuaded that costs of not less than $1,000 have been reasonably and properly incurred on behalf of the Minister in dealing with the application in a case. 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 $1,000.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 24 April 2012