SZMRU v Minister for Immigration & Anor [2009] FMCA 87 (9 February 2009)

Last Updated: 12 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMRU v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 87

MIGRATION – Application for review of RRT decision – where applicant did not receive invitation to hearing – where unofficial third party may have been relied upon.

Migration Act 1958 (Cth), ss.426A, 36, 65

SZFDE v Minister for Immigration & Anor [2007] HCA 35; (2007) 232 CLR 189

Applicant:

SZMRU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2226 of 2008

Judgment of:

Raphael FM

Hearing date:

9 February 2009

Date of Last Submission:

9 February 2009

Delivered at:

Sydney

Delivered on:

9 February 2009

REPRESENTATION

For the Applicant:

In Person

Counsel for the First Respondent:

Mr Reynolds

Solicitors for the First Respondent:

Clayton Utz

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent's costs assessed in the sum of $3,250.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2226 of 2008

SZMRU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. He arrived in Australia on 17 February 2008 utilising a Japanese passport. On 1 April 2008 he applied for a protection (class XA) visa. On 9 April 2008 a delegate of the Minister refused to grant him a protection visa. On 12 May 2008 the applicant applied for a review of the decision from the Refugee Review Tribunal. In his application to the Tribunal [CB 65] the applicant gave an address in Hurstville as his residential address.
2. He completed section C of the application form [CB 65] by indicating that he did not have a representative authorised to act for him in the matter. He completed section D of the application form indicating that he wanted all correspondence sent to him at PO Box 1018 Hurstville [CB 66]. The applicant signed the application in Mandarin although the application had been written in English. Interestingly, there is no reference in that application form as there is in some to the form having been translated to the applicant.
3. On 23 May 2008 the Tribunal sent by registered post a letter to the applicant at the post office box that he had nominated advising him that it had considered the material before it and was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 11 July 2008 and told him where the hearing was to be and that he would receive the assistance of a Mandarin interpreter. The applicant did not respond to that hearing invitation.
4. There is found at [CB 73] a checklist the Tribunal went through before determining that the invitation had been properly issued and that the Tribunal could proceed in accordance with s.426A of the Migration Act 1958 (the “Act”). On 11 July 2008 the Tribunal determined to affirm the decision not to grant the applicant a protection visa. Notification of the decision was sent to the post office box in Hurstville and this time was presumably received by the applicant because he was able to file at this Court an application on 27 August 2008 that contained, annexed to an affidavit of his of the same date, a copy of the Tribunal decision.
5. The applicant claimed that he was a person to whom Australia owed protection obligations because of his practice of and adherence to Falun Gong. He claimed that as a result of this he had been arrested and he had been placed in detention for two years. He was released in 2004 and went to another city to work but he was harassed at that place and so returned to his home where he continued to practise Falun Gong and remained unemployed. The applicant provided no further information about his situation. The statement upon which the Tribunal considered the claims is found at [CB 27-29].
6. It is not surprising that the Tribunal was unable to reach the state of satisfaction required by ss.36 and 65 of the Act in regard to this application. As it said in its findings and reasons [CB 82]:
   • “The applicant has provided no information or detail as to how he was introduced to, why he started to practise and how he was affected by Falun Gong. He has provided no details of his claimed trip to Beijing in 2000 and the exact circumstances of his arrest and subsequent detention. It is unclear why exactly he was released after one year and under what circumstances he distributed Falun Gong related flyers in Longyan. He has provided no information in relation to the circumstances of his arrest and detention after the authorities broke into his home and the circumstances surrounding his claimed hunger strike. It is unclear why he was released into his mother's care and exactly what is meant by “probation”. He has provided no details in relation to his claimed arrest in February 2002 and how he had come to possess 80 packages of “truth-clarifying” material. It is unclear who exactly sentenced him to two years imprisonment in a labour camp and what is meant by a “non-court document”. The applicant has provided no details or information about his personal circumstances after he was released in 2004, how he was released in 2004, how he was harassed in Fuzhou and how he was able to survive financially without a job. Finally, he has not provided any information to shed any light on how he was able to obtain a passport and secure his exit from China...Overall, in view of the insufficient information and lack of detail contained in the applicant's claims the Tribunal is unable to be satisfied that he has been persecuted for a Convention reason in the past, or that there is a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future.”
7. In his application for review of the decision of the Tribunal the applicant says that he never received the invitation for the hearing and then points out that the Tribunal at [20] of its statement of decisions and reasons at [CB 81] said:
   • “The applicant appeared before the Tribunal on 11 July 2008 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.”

As the applicant notes, that is clearly incorrect; but the carelessness of the Tribunal in making this statement does not constitute a jurisdictional error which would entitle me to refer the matter back to the Tribunal to be heard according to law.

8. The second ground put by the applicant in his application was that his migration agent had failed to inform him about the application:
   • “Only recently I came to know that he was an unregistered migration agent and he had done the same unprofessional conduct to some other applicants.”

There is no mention of a migration agent in the application to the Tribunal but there is an indication that the applicant used the services of a third party in completing his application form for the PVA [CB 9]. On that page the name of the person and his address in Hurstville is given. The applicant claimed that he did not give this person any money for the assistance he had provided and the address in Hurstville seems to be the same address as the applicant was utilising at that time.

9. In his grounds of application the applicant names the person who he blames for not bringing the Tribunal's letter to his attention. That is not the same person whose name appears at [CB 9]. The Tribunal did not fall into any jurisdictional error in the manner in which it reached its decision in this case. It could do little else than affirm the delegate's decision in the absence of any clarifying evidence from the applicant. It could have done nothing else but send the invitation to the address given by the applicant in his application form.
10. This is not a case of third party fraud vitiating the Tribunal's decision: SZFDE v Minister for Immigration & Anor [2007] HCA 35; (2007) 232 CLR 189. The applicant was not told by anyone not to attend and he is the person with the responsibility for ensuring that the Tribunal is able to communicate with him.
11. This Court in its Sydney Registry deals with a large number of claims for review of decisions of the Refugee Review Tribunal. A good many of these claims are made by members of the Chinese community who have utilised the services of “friends” to assist them in completing their applications both to the executive and judicial branches. These people are rarely named and are generally blamed for all that goes wrong. They are apparently never paid but remain always available to give applicants the benefit of bad advice and act negligently in respect of the receipt and transmission of materials. It is to be hoped that the Department could liaise with respected members of the Chinese community so that this abuse can be eradicated as soon as possible. It helps neither genuine nor non-genuine applicants, it causes distress, it frustrates the courts and is uneconomical.
12. The application is lacking in merit and it must be dismissed. The applicant shall pay the respondent's costs assessed in the sum of $3,250.00.

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

Associate:

Date: 11 February 2009