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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no reviewable error - application dismissed.

SZDKR v Minister for Immigration [2004] FMCA 738 (29 October 2004)

SZDKR v Minister for Immigration [2004] FMCA 738 (29 October 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKR v MINISTER FOR IMMIGRATION
[2004] FMCA 738




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no reviewable error - application dismissed.




Migration Act 1958 (Cth), ss.425, 425A(4), 426A, 426A(1), 441A, 441C, 474

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311

Applicant:
SZDKR




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1235 of 2004




Delivered on:


29 October 2004




Delivered at:


Sydney




Hearing date:


27 October 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:


Mr D Jordan




Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in an amount of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1235 of 2004

SZDKR



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal ("the Tribunal") handed down on 9 March 2004 affirming a decision of a delegate of the respondent made on 29 July 2003 to refuse to grant the applicant a protection visa.

Background

2. The applicant, who claims to be a citizen of the People's Republic of China, arrived in Australia on 10 July 2003. On 24 July 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 ("the Act"). On 29 July 2003 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa (Court Book pp.33-43). On

2 September 2003 the applicant applied for a review of the delegate's decision (Court Book pp.44-47).

3. The applicant claimed to fear persecution in China for reasons of religion. He claimed he was a devout Catholic and that he had practised his religion in underground churches and gatherings which were not sanctioned by the Chinese authorities (Court Book pp.31-32).

4. The application to the Tribunal seeking a review of the delegate's decision was lodged on 2 September 2003. The applicant disputed the primary decision but did not provide any further material or evidence (Court Book pp.44-47).

5. On 9 January 2004 the Tribunal wrote to the applicant inviting him to attend a hearing scheduled on 4 March 2004. The Tribunal's letter of invitation was posted to the applicant and his adviser. In accordance with s.425A(4) of the Act the letter included a statement to the effect of s.426A and warned that the Tribunal may proceed to a decision without taking any further action if the applicant failed to attend the hearing (Court Book pp.50-51).

6. The applicant did not reply to the Tribunal's invitation to attend the hearing. An administrative checklist was completed by Tribunal staff confirming the applicant's contact details (Court Book p.54). These enquiries included unsuccessful attempts to telephone the applicant's adviser (Court Book p.53). The Tribunal had not been provided with a telephone number for the applicant himself (Court Book p.45).

7. The applicant did not attend the Tribunal hearing as scheduled on 4 March 2004. In the circumstances, the Tribunal exercised the discretion conferred on it under s.426A(1) of the Act and proceeded to determine the application on the available materials. On the limited material provided by the applicant, and given the lack of details in support of his claim, the Tribunal was not satisfied that the applicant held a well-founded fear of Convention related persecution (Court Book pp.62-63).

The Tribunal's findings and reasons

8. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugee Protocol. In the findings and reasons within the decision, the Tribunal stated that it was not provided with necessary material to enable the examiner to establish the relevant facts of the applicant's claim. It was not for the Tribunal to make out the applicant's case on his behalf nor was the Tribunal required to accept unequivocally all or any of the allegations made by the applicant. The Tribunal formed the view that the protection visa application was couched in general and vague terms and the applicant was unable to provide any further details to assist the Tribunal in establishing the relevant facts. The Tribunal was not satisfied as to the applicant's claim that he was a member of the Catholic Church and that because of his religious beliefs his business was destroyed by the authorities and the applicant was unable to obtain alternative, gainful employment (Court Book pp.61-64).

The application for review of the Tribunal's decision

9. On 28 April 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. On 10 August 2004 the applicant attended a directions hearing and consented to Court Orders setting down a timetable recorded in Short Minutes Order. The second of those Orders was that the applicant would file and serve any amended application and all evidence in support of each of the grounds for review being relied upon by the applicant in this application to the Court by 8 October 2004. The applicant also completed a form that he wished to participate in the RRT Legal Advice Scheme (NSW). Nothing was filed prior to the hearing.

10. At the hearing the applicant sought to file in Court an amended application seeking Interim Orders for an adjournment of the proceedings together with Final Orders and new grounds. With the consent of the respondent, I consented to the filing of the amended application. The new grounds were as follows:

1. The Tribunal decision is void for jurisdictional error in that:

a. The Tribunal made its Decision on 9 March 2004, and without the benefit of a (sic) conducting a review hearing.

b. The Tribunal elected to proceed to make the decision on the basis that it had invited me by letter on 9 January 2004, to attend a review hearing on 4 March 2004. No response was received from me.

c. The Tribunal in the Decision stated that a `no reply check" was carried out, which check involved purporting to telephone me, and purporting to contact my migration adviser for any more recent address for me.

d. During early 2004, I travelled to Canberra for approximately six weeks. I do not recollect receiving either the invitation letter of 9 January 2004, nor receiving any telephone calls or messages.

e. I received no communication from my immigration adviser, Ms Yan Ping Xu of Intercontinental Migration Consultancy, to the effect that she had received a letter of invitation from the Tribunal, or had been contacted by the Tribunal to check for whether I had a more recent address.

f. I do not recollect providing the Tribunal, nor the Department with my personal telephone number.

g. Consequently, the ground of appeal is that the Tribunal failed to exercise its jurisdiction according to law, and failed to meet the requirements of procedural fairness, in the steps which it took, or purported to take in order to make contact with me, or my migration adviser, before proceeding to make its Decision.

The law

11. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002&q;
uot;) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

12. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

13. The applicant appeared self represented with the aid of an interpreter. The applicant attended a directions hearing on 10 August 2004 and consented to Short Order of Minutes at that time with the assistance of an interpreter. The Orders included the filing and serving of amended application and any evidence upon which he proposed to rely at the hearing. This direction was not complied with nor were there any written submissions filed and served prior to the hearing.

14. When the applicant was invited to make any oral submissions this was limited to making a further request for time in order to locate a legal adviser to assist in the preparation of his case. The Interim Orders sought an adjournment of the proceedings to a later date in order to enable the applicant:

a. To review the file of the Tribunal and the Department in order to satisfy himself as to the steps which the Tribunal took or purported to take to contact the applicant before proceeding to make its Decision, including checking what telephone number the Tribunal telephoned, and what contact it made with my adviser as referred to on page 0054 of the Court Book.

b. To speak to my migration adviser in order to ascertain whether she received the letter from the Tribunal dated 9 January, 2004 appearing at page 0050 of the Court Book.

c. To take further legal advice in relation to this application.

d. To prepare any evidence which I may be advised to prepare in relation to this Application.

15. Mr D Jordan of Counsel appearing for the respondent filed written submissions prior to the hearing. A number of the grounds to which the written submissions were addressed were no longer relevant as the applicant had abandoned a number of his claims in the original application and they were no longer being pressed. Further, the application which asserted that the applicant could not attend the hearing during illness and that he had attempted to seek an adjournment by telephone on the day of the hearing was also abandoned. The claim was not supported by any evidence. Moreover, the available evidence indicated that the applicant made no further attempt to explain his failure to attend the Tribunal hearing on 4 March 2004, even though the decision was not made until 9 March 2004 and was not formally delivered until 30 March 2004.

16. Mr Jordan of Counsel made detailed oral submissions addressing the key issue raised in the new grounds of the amended application. The new issue focussed on the notification issued by the Tribunal inviting the applicant to appear before it to provide additional and supporting information to his original application. Submissions were made in relation to the structure and operation of the relevant sections of the Act that must be satisfied in order to make a valid notification and the consequential steps that the Tribunal may adopt once that criteria is satisfied.

Conclusion

17. The applicant made no oral or written submissions. However at the hearing the applicant sought to file a new application. This was not done in any formal way but in response to a question as to whether he wished to make oral submissions, the applicant indicated that he did not but indicated he wished to hand up material. On inspection this material was a new application containing new grounds and an Interim Order seeking adjournment. As the applicant is self represented, the Court must independently consider whether any arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. The respondent consented to the filing of the amended application on the understanding that they would make formal objections to the granting of an Interim Order adjourning the matter to a later date.

18. The applicant at all times appears to have had the assistance of an immigration adviser who also received all correspondence forwarded to the applicant.

19. Where factual assertions are made, it is the applicant who bears the onus of establishing these facts. In Ratumaiwai v Minister for Immigration & Multicultural Affairs, Hill J states:

"It is not for the Tribunal to make out a case for an applicant, nor is it, in my opinion, for the Tribunal to have to dredge through the totality of material which may be before it to discover whether somewhere among the material there is an argument that might be relevant to an applicant's case."

20. Under s.426A of the Act the Tribunal may make a decision on the review provided that it has firstly issued an invitation under s.425 to appear before the Tribunal and secondly that the applicant did not appear on that scheduled date. The invitation under s.425(1) was issued on 9 January 2004 and is located in the Court Book at pp.50-51. The invitation must be in accordance with s.425(1) which invites the applicant to give evidence and present arguments relating to the issues arising in relation to their application. That is clearly contained within the invitation referred to above. Section 425A(2)(a) of the Act was complied with as the Tribunal's invitation letter was sent to the applicant at his residential address and a copy was sent to Ms Yan Ping Xu of Intercontinental Migration Consultancy which the applicant had indicated was the alternative address to serve all notices. Section 441A(4) of the Act was complied with in that the letter was despatched by pre-paid post to the two addresses nominated in the relevant sections of the Tribunal application for review form (Section B - the applicant's residential address and Section C - the applicant's authorised recipient/migration agent). Section 425A of the Act, which specifies the prescribed period for delivery of the invitation letter, was dated and despatched on 9 January 2004. Under the provisions of s.441C(4) of the Act, the invitation letter was taken to be received within seven working days from the date of issue and that was within the prescribed period that satisfies the Regulation 4.35D on which day the notice becomes effective.

21. The Tribunal's invitation letter also contains the heading "Important information about your hearing". All of the prerequisites of the Act were satisfied so that the Tribunal could proceed to make a decision under s.426A.

22. When the Tribunal received no response to the invitation letter they attempted to contact the applicant and the applicant's migration adviser. The "No Reply to Hearing Invitation" and letter checklist under ss.424 and 424A appear in the Court Book at pp.53-54. After the applicant's failure to attend the Tribunal's scheduled hearing on 4 March 2004 there is no evidence in the material submitted in the Court Book or by the applicant that any attempt was made to contact the Tribunal prior to it handing down its decision on 30 March 2004. The decision of the Tribunal was subsequently forwarded to the applicant at the same residential address. The Tribunal has complied with its statutory obligation and there is no evidence of any error in law or jurisdiction.

23. As the grounds in the application are general and without any particularisation, I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant's claim should be dismissed.

24. I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 29 October 2004
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