Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Application for review of RRT decision - where applicant did not attend the Tribunal hearing - where application seeking review on basis that the Tribunal member was biased and the decision unjustified on the evidence - where applicant has not particularised allegations of bias - whether the findings and reasons of the Tribunal evidence jurisdictional error or denial of procedural fairness.

SZBBH v Minister for Immigration [2004] FMCA 871 (18 November 2004)

SZBBH v Minister for Immigration [2004] FMCA 871 (18 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBBH v MINISTER FOR IMMIGRATION
[2004] FMCA 871




MIGRATION - Application for review of RRT decision - where applicant did not attend the Tribunal hearing - where application seeking review on basis that the Tribunal member was biased and the decision unjustified on the evidence - where applicant has not particularised allegations of bias - whether the findings and reasons of the Tribunal evidence jurisdictional error or denial of procedural fairness.




SBBS v MIMIA (2002) FCAFC 361

SBBA v MIMIA (2003) FCAFC 90

Applicant:
SZBBH




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 1478 of 2003




Delivered on:


18 November 2004




Delivered at:


Sydney




Hearing date:


18 November 2004




Judgment of:


Raphael FM




REPRESENTATION

For the Applicant:


Applicant in person




Counsel for the Respondent:


Mr A McInerney




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $3,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1478 of 2003

SZBBH



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China. He arrived in Australia on 30 March 2002. On 29 April 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 21 June 2002 a delegate of the Minister refused to grant him a protection visa and on 26 July 2002 he applied for review of that decision.

2. The applicant completed a form seeking a review from the Tribunal which is found at [CB 37] - [CB 40]. In that form he gives his address as 7 Loftus Street, Campsie. He also completed section C and named a migration agent as a person to be nominated as an authorised recipient of correspondence. On 23 April 2003 the Tribunal sent a letter to the applicant advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter was sent to the applicant at the address given on the form and also to the migration agent. It is accepted that the letter to the applicant, which was sent by registered post was not delivered and was returned. The letter which was sent to the migration agent and which is found at [CB 41] also appears to have been sent by registered post. There is no evidence that it was returned.

3. The applicant did not attend a hearing before the Tribunal. He told me today that this was because he did not know about the hearing and it would appear that he may well not have done. However, the Migration Act makes provision in ss.426A, 441A and 441C for the bringing of notice of hearings to the attention of applicants and for notices delivered in the ways specified to be deemed to have been received, thus allowing the Tribunal to proceed without further reference to the applicant if he or she does not attend.

4. I am satisfied that the requirements of the various sections were met and that the Tribunal acted lawfully under s.426A in proceeding with its decision-making task.

5. Not surprisingly, the decision is short, it commences at [CB 49] as follows:

"[The applicant] states that he was a farmer and worker in China. He claims that his family were classified as "Black Five Class" after the communists came to power. He claims that he was forced to work at a supermarket after completing high school and that in 1999 he lost that job and had to go back to his village and work as a farmer. He also claims that he was persecuted following the birth of his second child in 1991. He states that he was dismissed from his job and fined 30,000 Yuan. He also claims that this child will be denied the right to attend schooling and face other forms of discrimination because she is a second child born in breach of family planning regulations."

6. The Tribunal goes on to note that the delegate wrote to the applicant asking for his comments on certain independent country information particularly that concerning the status of black children. The delegate noted that the applicant's claims were vague and unsubstantiated which gave rise to concerns as to their credibility. The applicant did not respond to the letter.

7. The Tribunal noted that no new information had been provided in relation to the application for review and then went on to state at [CB 50]:


"[The applicant's] claims are vague and it is somewhat unclear exactly what he fears if he returns to China. He appears to be claiming that he was forced to work in a low and inappropriate position after completing high school in 1981 and that he later also lost this job because of his family background. It is not my understanding that people faced discrimination in areas such as employment because of their family background in the 1980s and certainly not in the late 1990s. Without more information, I am not satisfied that he has faced serious discrimination as a result of his family background.

[The applicant] also claims that he was fined and lost his job because he and his wife had a second child in contravention of China's family planning regulations. It is unclear when these penalties were imposed and whether [the applicant] experienced any other difficulties because of the birth of his second child. However, even if these claims are accepted at face value, it appears that he was penalised because he breached China's family planning regulations. It is my understanding that these regulations are laws of general application and it therefore does not appear that he experienced harm for any of the reasons contained in the Convention as a result of the birth of his second child.

If the applicant had attended the hearing it would have been possible to investigate his claims more fully, however, he failed to do so and on the evidence currently before me I cannot be satisfied that his claims are genuine or that he has a well founded fear of persecution in China for any of the reasons contained in the convention."

8. The application filed in this Court on 30 July 2003 seeking review of the decision of the Tribunal states that:

1. The decision by RRT was induced by actual bias of the officer;

2. There was no evidence or other materials to justify the making of the decision

9. The Full Bench of the Federal Court discussed allegations of bad faith in some detail in SBBS v MIMIA (2002) FCAFC 361. They provided nine propositions concerning this allegation, the first of which was that an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. The rules of this Court and the Federal Court of Australia provide that where bad faith is pleaded particulars must be given: Order 54 rule 2, Federal Court Rules.

10. No such particulars were provided in this case and the applicant has not stated in any document or in his oral submissions why he believes the Tribunal was biased. As he did not attend the Tribunal, this might be hard but it is his job if he wishes to make this point.

11. As to the second ground of application that there was no evidence or other material to justify the making of a decision, this seems to misunderstand the nature of the Tribunal's task. The Tribunal is obliged to be satisfied that the applicant has a convention based claim for protection. If no claim is made out, as it was not here, it is not difficult for the Tribunal to say that it has not reached the state of satisfaction required. It is for the applicant to make out his own case. As the Full Bench said in SBBA v MIMIA (2003) FCAFC 90 at [8]:

"It is, however, no part of the Tribunal's function "to make good a case, which the applicant has not articulated, only because there is some evidence on elements of a claim": Parra v MIMA (2000) FCA 85 at [13]."

12. In all the circumstances there are no grounds that I can see that can justify me making a finding that the Tribunal fell into jurisdictional error in the manner in which it dealt with the applicant's claims and reached its decision. It follows that the application must be dismissed. I order that the applicant pay the respondent's costs which because of the simplicity of this case I assess in the sum of $3,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 25 November 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia