SZRRW v Minister for Immigration - [2012] FMCA 1203

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRRW v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1203

MIGRATION – RRT decision – Chinese applicant claiming persecution after reporting corruption – did not attend Tribunal hearing – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425

Applicant:

SZRRW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1669 of 2012

Judgment of:

Smith FM

Hearing date:

5 December 2012

Delivered at:

Sydney

Delivered on:

5 December 2012

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Pinder

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1669 of 2012

SZRRW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia on a tourist visa in August 2011. On 24 October 2011 a registered migration agent, Ms Jie Yu, lodged an application for a protection visa on behalf of the applicant, and she also lodged documents in which the applicant appointed Ms Yu as his authorised recipient for correspondence. An attached “personal statement” recounted a history upon which the applicant claimed to fear return to his country of nationality, The People’s Republic of China.
In short, the applicant claimed that in the course of his employment as a maintenance manager at a hotel, he had become aware of corrupt relations between the owner of the hotel and the local government. After reporting this to the authorities he was assaulted at the directions of his employer, and when he complained further he was detained by police and mistreated for 15 days. He said that this happened in February 2011, and that subsequently “after I was released, boss sent people to harass me every now and then. I lived a life of threatening. I wanted to quit and find another job … After a deep consideration, I decided to escape out of China”.
No corroborative documents in relation to this history accompanied the visa application or were subsequently forwarded to the Department of Immigration or the Tribunal.
A letter inviting the applicant to attend an interview at the Department of Immigration on 16 February 2012 was sent to the migration agent. However, according to the subsequent decision, the applicant did not attend the scheduled interview, and did not make any contact with the Department to provide any reason why he did not attend. Nor did the migration agent make contact with the Department to explain this.
A delegate of the Minister made a decision on 17 February 2012 to refuse the protection visa application. The delegate doubted whether the harms feared by the applicant were Convention related or well‑founded in relation to future harm.
A copy of the decision was sent to the applicant’s agent and clearly was received by the applicant, since an application for review was filed with the Tribunal. In that application, Ms Yu was again appointed as representative and authorised recipient.
An invitation was sent to the applicant via Ms Yu on 11 May 2012, inviting the applicant to attend a hearing in Sydney on 29 May 2012. A response was submitted indicating that he would attend, but on 28 May 2012 the Tribunal received a facsimile from the applicant which said:
My name is [applicant]. My RRT case number is [number]. My date of birth is [date of birth]. I’m currently in Perth. So I’m unable to appear before the tribunal which was scheduled at 12.30pm, 29 May 2012.
Could you please transfer my case to Perth office or organize a video conference for me? Many thanks.
The Tribunal contacted the agent who confirmed that the applicant had moved to Perth. The Tribunal then sent to the migration agent a letter dated 30 May 2012 addressed to the applicant, which informed him that the hearing had been rescheduled.
The letter noted that the hearing would now be held on 3 July 2012 at 10.30 am Perth time, “which is 12:30 pm (NSW time)”. The letter asked the applicant to “please arrive at least 15 minutes before the start of the hearing and report immediately to the reception counter”. It also said: “Arrangements have been made to conduct the hearing by video conference. The Member and interpreter will be in Sydney. If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible”.
The letter also told the applicant: “the Tribunal will only change this hearing date for good reason. Please contact the Tribunal immediately if you are unable to attend the hearing on this date. Please note 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”.
A response to this letter was received by the Tribunal on 2 July 2012. The response was by way of a two‑page facsimile of documents signed by the applicant personally. The first document was a letter signed by the applicant which said:
My name is [applicant], RRT case number: [number]. My hearing date was scheduled on 3 July in Sydney. As I’d like to attend the interview in person in Sydney, so I came back to Sydney yesterday. Therefore, could you be noted that I will go to the Sydney RRT for interview? So the video conference would not be necessary.
I apologize for the short notice.
Thank you for your kind consideration.
The second document was the Tribunal’s form of response to the hearing invitation, which was completed so as to indicate “Yes”, to the question “will you take part in the tribunal hearing scheduled for 3 July 2012?”, and that the applicant “wanted to participate” “from the location of the member”.
However, on the day of the hearing, which was the following day, there was no attendance by the applicant in Sydney or Perth at the appointed time, although the Tribunal appears to have waited until 1 o’clock to check whether he would attend.
There is also a case note indicating that an officer of the Tribunal telephoned the applicant’s agent at 12.53 pm. The file note records:
The RA did not show up for his hearing. After calling AAT Perth and being told the applicant was not there I rang the agents mobile number as it was unclear if the applicant was attending in AAT Perth or Sydney office. The AR answered and after questioning her she said she was not coming to the hearing & she admitted to not being able to contact the applicant. I asked her why then did she send the positive response to hearing form back if she had no contact. She asked when it was sent. I said yesterday – I then had another look at it & told her it was signed by the applicant. She said oh. I asked her if she had no contact with the RA then how did he know about the hearing & have the form? She said she had to make a phone call. I said the applicant is not here and the member may proceed to make a decision if he doesn’t arrive shortly. I informed the member.
The Tribunal proceeded to make a decision dated 4 July 2012. A copy was sent to the applicant’s agent on 5 July 2012.
In its decision, the Tribunal recounted the applicant’s refugee claims and the history of the matter. The Tribunal said that on the basis of the applicant’s written claims, it was not satisfied that he had a well‑founded fear of Convention‑related persecution if he returned to China now or in the reasonably foreseeable future. The Tribunal identified issues upon which it would have wished additional information from the applicant if he had attended the hearing.
The Tribunal said that it was not satisfied on the information which had been provided by the applicant that he satisfied the criterion set out in s.36(2)(a) of the Migration Act 1958 (Cth), which relates to Australia’s protection obligations under the Refugees Convention.
The Tribunal said that it was also not satisfied that he was a person to whom Australia had protection obligations under other international obligations in terms of s.36(2)(aa) of the Migration Act.
The applicant did receive the Tribunal’s decision, since he lodged an application to this Court on 31 July 2012, seeking judicial review of the Tribunal’s decision. The application has as its grounds:
1.Bias of RRT against the Applicant.
2.Error of RRT in failing to hear evidence given by the Applicant.
3.RRT’s denial of the Applicant’s evidence without conscience.
4.RRT failed to notify the applicant the hearing time.
The applicant has not filed additional documents to explain these grounds by way of amended application or written submissions. When invited today to explain error in the Tribunal’s procedures or reasoning, the applicant asserted that he had been denied an opportunity to be interviewed and to attend a hearing. He asserted that he had not received the invitation to attend the Departmental interview, and that he had been denied an opportunity to attend the Tribunal hearing after he moved back to Sydney from Perth.
He maintained that statement in the face of my taking him to the two documents which he had signed and sent to the Tribunal on 2 July 2012. He could not explain why those documents should not be understood in the terms which appear clear.
I am not satisfied that he was not aware of the appointed hearing, and was not aware of its time and place and date at which he had been told he would have an opportunity to explain his refugee claims.
The applicant did not otherwise make any points which could come within the terms of the grounds of review, and I consider that they are all lacking in substance.
In my opinion, the Tribunal did comply with the procedures required under the Migration Act to afford the applicant an opportunity to attend a hearing under s.425 of the Migration Act.
The applicant has not established jurisdictional error in relation to the Tribunal’s procedures or its reasoning.
I must therefore dismiss the application.

I certify that the preceding twenty‑six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:

Date: 14 December 2012