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MIGRATION - Refugee - invitation to Tribunal hearing - procedural fairness.

SZDMA v Minister for Immigration [2004] FMCA 908 (1 November 2004)

SZDMA v Minister for Immigration [2004] FMCA 908 (1 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDMA v MINISTER FOR IMMIGRATION
[2004] FMCA 908




MIGRATION - Refugee - invitation to Tribunal hearing - procedural fairness.




Applicant:
SZDMA




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1312 of 2004




Delivered on:


1 November 2004




Delivered at:


Sydney




Hearing date:


1 November 2004




Judgment of:


Nicholls FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Margaret Allars




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) That the application is dismissed.

(2) The applicant to pay the respondent's costs set in the amount of $4000 pursuant to r 21.02(2a) of the Federal Magistrate Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1312 of 2004

SZDMA



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application filed in this Court on 6 May 2004 seeking review of the decision of the Refugee Review Tribunal made on 24 March 2004 and handed down on 15 April 2004, which affirmed the decision of a delegate of the respondent Minister made on 12 December 2003 to refuse a protection visa to the applicant.

2. The applicant is a national of the People's Republic of China who arrived in Australia on 27 September 2003 as a visitor. The applicant claimed to be an active practitioner of Falun Gong and to be in need of protection from the Chinese authorities and the Chinese Communist Party. He further claimed that he would continue to be an active member of Falun Gong if he were to be returned to China and that the Chinese government would persecute him.

3. The grounds in the application to this Court are not particularised. The grounds are:

1) The Tribunal "made mistakes to find I was not a refugee"; and

2) That he was "not given a proper opportunity to explain his case".

4. In an amended application filed in this Court on 5 October 2004 the applicant also claimed :

1) That the officer, [he means the Tribunal] - had a bias against him, and that the Tribunal's finding of the applicant's lack of credibility came from the Tribunal's bias.

2) That the Tribunal made mistakes and based its conclusion on wrong information.

3) The Tribunal did not consider all the information provided.

4) The Tribunal did "not refer to any information from any resources about Falun Gong in China".

5) Again on the basis that the use of the word "officer" means the Tribunal, that the Tribunal made a mistake in its findings because its consideration was vague and based on unjustified assumptions.

5. At the hearing before me today the applicant was unrepresented. He was assisted by a Mandarin interpreter. The applicant was unable to provide any detail or indeed make any relevant comment about his application. He asked for more time to obtain legal representation.

6. The application to this Court was filed on 6 May 2004. On 13 August 2004 the applicant attended the first Court date in this matter. At that time he was given the opportunity to participate in the legal advice scheme. He told me at the hearing today that he did not wish to participate in that scheme and that he had told the Minister's representatives at that time that he would arrange for his own legal representation.

7. Before me today the applicant was unable to provide any reason for his failure to do so other than to say he did not know how to go about arranging for legal representation. I also note from what the applicant told me today that he had sought the assistance of a friend in preparing the application and the amended application to this Court. Given the time that the applicant has had from when he first made application to this Court and in the circumstances outlined above, I did not agree to any adjournment of the hearing today.

8. The Tribunal had before it the respondent Minister's departmental file which included the protection visa application and the departmental delegate's decision record and had regard to the material referred to in that decision and other material (See Court Book page 49.5).

9. By letter dated 25 February 2004 and sent to the applicant's nominated "Authorised Recipient", with a copy sent to the applicant's home address, the applicant was advised that on the material before it the tribunal was unable to make a favourable decision and invited the applicant to a hearing on 11 March 2004 to give evidence and present argument in support of his claims (See Court Book pages 38 and 39).

10. The applicant advised The Tribunal on 2 March 2004 that he wanted to come to the hearing (see Court Book at page 40). However he did not attend. There is no evidence before me to show the reason for the non attendance nor that he sought any alternative hearing date and I note in passing that it is a matter for the applicant whether he chooses to attend tribunal hearing dates or not.

11. In his application and amended application to this Court which the applicant told me this morning were prepared with the assistance of a friend and that he did not know of their contents, the applicant asserts mistakes were made in the finding that the applicant was not a refugee. This ground is not particularised and at the hearing before me today the applicant was unable to provide any detail. The applicant clearly disagreed with the tribunal's findings and decision but has been unable to say anything to me to establish any error of law on this basis.

12. The applicant through his written application asserts a failure to give a proper opportunity to explain his case. The applicant was put on notice that the tribunal was unable to make a decision favourable to him on the material before it. He was invited to a hearing to support his case. He was on notice that if he did not attend that the tribunal could proceed to make a decision without further notice to him. He indicated that he would attend but without explanation, or requesting an adjournment, did not attend.

13. Section 425 of the Migration Act creates the statutory requirement that an applicant is to have the opportunity to attend an oral hearing at the Tribunal, and sections 424 and 424A of the Act are concerned with the conduct of the review by the Tribunal. Section 426A of the Act provides for the Tribunal to proceed to make a decision if the applicant does not appear, or for the Tribunal to reschedule the hearing date.

14. The applicant in this case was given an opportunity to attend a hearing and there is nothing before me to show that the applicant gave any reason for his non attendance or that he sought any new date. There is nothing before me to show that the relevant statutory requirements were not complied with in this matter. In written submissions the respondent minister's counsel has submitted that section 422B(1) of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with.

15. I was referred to authority that held that section 422B requires that Division 4 of Part 7 of the Act, which contains sections 424, 424A and 425 is to be taken as an exhaustive statement of the procedural fairness requirements. The cases of WAID v MIMIA [2003] FCA 220, VAAC v MIMIA [2003] FCAFC 74, and the Full Federal Court decision WABZ v MIMIA [2004] FCA FC 30.

16. But even if in spite of the statutory context a failure to provide an opportunity to an applicant to present their case at an oral hearing were to give rise to a breach of the common law rules of procedural fairness, even where the procedural requirements of section 425 were satisfied, there is nothing in the matter before me to suggest there was any such denial of procedural fairness.

17. The applicant also alleges bias on the part of the tribunal. Again, no particulars are provided and in any event there is no evidence before me nor has the applicant been able to articulate anything more than the mere assertion that the tribunal was biased because it assumed its claims were made up.

18. The applicant also alleged in the amended application, that the Tribunal did not consider all the information provided. Again, at the hearing before me today the applicant was unable to provide any detail to support this claim and in any event I can find no information that was provided that was not considered by the tribunal (see Court Book at pages 49 to 50 under the headings Claims Made in Protection Visa Application and Claims Made in Review Application).

19. The applicant's claim:

"She did not even refer to any information from any resources about Falun Gong in China -"

is factually incorrect, (see Court Book at page 50.8 to 51.4).

20. The applicant asserts that the Tribunal assumed that his claims were made up and that it did not believe him and that his credibility became a problem. On a plain reading of the tribunal's decision, the lack of detail and clarity in the applicant's claims led the Tribunal to invite him to an oral hearing and that he was on notice that the hearing was the opportunity for him to provide more detail.

21. In its findings and reasons at Court Book pages 52.9 to 53.8 the Tribunal clearly states that it is the lack of detail and clarity, the "no particulars", the generality of his claims, the provision of insufficient information about his claims, his lack of explanation that led to its findings that it was not prepared to accept his assertions, and that he was not a Falun Gong practitioner in China or Australia.

22. The applicant was given an opportunity to present his case to the tribunal. The tribunal took into account the material before it and was entitled to come to the conclusions that it did based on that material. No error has been established in this case and there is no jurisdictional error on the part of the Tribunal. This application must be dismissed.

RECORDED : NOT TRANSCRIBED

ORDERS DELIVERED

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

Associate: Katrina Samuel

Date: 1 December 2004
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