SZHBC v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant is a 40 year old male from Fujian and he is a citizen of the People's Republic of China. He arrived in Australia on 5 October 2004. 2 On 16 November 2004, he lodged an application for a Protection Visa with the Department of Immigration and Multicultural Affairs. The delegate of the Minister, the first respondent, refused the application for a Protection Visa on 19 February 2005. 3 The application for a Protection Visa showed that his current residential address was 11/258 Cabramatta Road, Cabramatta, New South Wales 2166. The decision of the delegate of the Minister refusing the application was sent by registered post to SZHBC at 11/258 Cabramatta Road, Cabramatta, New South Wales 2166. 4 On 29 March 2005, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. That application for review showed that his residential address in Australia was 11/258 Cabramatta Road, Cabramatta 2166, that he did not have an adviser authorised to act for him in relation to this application, but his mailing address, which was his address for service, was 198/422 Pitt Street, Sydney, New South Wales. This form was signed by the appellant, although it was otherwise typed by a person the appellant described at the hearing of this appeal as his migration agent. 5 The Tribunal wrote to SZHBC at the address he had given in Pitt Street Sydney as his address for service, informing him that the Tribunal was unable to make a decision in his favour on the information in the application alone, and advised him that there would be a hearing of the Tribunal at 9 am on Tuesday, 14 June 2005 at Level 11, 83 Clarence Street, Sydney. 6 The appellant did not attend the Tribunal hearing. A letter was sent to him at the Pitt Street, Sydney address, indicating that the decision in his case would be handed down at the Clarence Street, Sydney address of the Tribunal at 2.30 pm on 4 August 2005. On that date, a letter was sent to the appellant at his nominated address for service - 198/422 Pitt Street, Sydney - indicating that the Tribunal had decided that he was not entitled to a Protection Visa. The basis of the Tribunal's reasoning is contained in the fourth-last paragraph of its reasons: The tribunal does not accept on the vague and thinly-sketched claims in this application that the Applicant's claims are genuine. The Applicant has displayed no knowledge or understanding of Falun Gong or the pro-democracy movement. His silence in this matter is not helpful to him. 7 On that material, the Tribunal concluded that the applicant did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) (the Act) for a Protection Visa. 8 The appellant filed an application under s 39B Judiciary Act 1903 (Cth) in the Federal Magistrates Court on 31 August 2005, and in that form gave his address for service as 198/460 Pitt Street, Sydney, New South Wales 2000. An amended application, filed 13 December 2005, gave the same address. 9 The appellant attended at the hearing of the Federal Magistrates Court, and Lloyd-Jones FM, who carefully looked at all of the grounds in the application to the Federal Magistrates Court, asked the appellant to reply, and the reasons indicate that the appellant said that he had not been invited to the Tribunal hearing. 10 The Tribunal application form was shown to him. He acknowledged that he signed it, and that the mailing address provided by him in it was 198/422 Pitt Street, Sydney. He was told also that that address was used in the letter notifying the applicant of receipt of his application, the invitation letter, the notification of handing down of the decision, and the notification with the attached copy of the decision. All of those documents had been sent by registered post. It appears that all of the addresses other than 11/258 Cabramatta Road, Cabramatta are addresses of the person whom the appellant has described as his migration agent. 11 There are four such addresses, 198/422 Pitt Street, Sydney being the mailing address in his tribunal application, 198/460 Pitt Street, the address in his Federal Magistrates Court application, and 198/226 Elizabeth Street, Surry Hills, which was given in a notice of change of address for service filed on 25 September 2006 in the Federal Magistrates Court proceedings. 12 Notwithstanding the appellant's earlier answers to Lloyd-Jones FM, when asked how he became aware of the unsuccessful application to the Tribunal, and that he had 28 days notification of that decision within which to file an application for review in the Federal Magistrates Court, the Federal Magistrate indicated that the appellant declined to answer. 13 The appellant also must have been told by somebody because he appeared at the hearing in the Federal Magistrates Court. 14 The appeal to this Court which was filed on 31 May 2007, shows the address for service of the appellant as 5/6 Fisher Street, Cabramatta 2166. The affidavit filed in support of his appeal filed 31 May 2007, shows the same address. 15 The appellant appeared before the Court this morning. The registry had sent a letter informing him of the date and time of this appeal to the address at 5/6 Fisher Street, Cabramatta. That letter was returned to the Registry unclaimed. A letter was sent by Blake Dawson Waldron for the Minister by express post on 8 August 2007 to the appellant at 5/6 Fisher Street, Cabramatta 2166. It has not been returned, but that is understandable, it having been posted on 8 August and the hearing listed at 9.30 on 13 August 2007. 16 The notification of the time and place of hearing obviously was communicated to the appellant, because he appeared today. He informed the Court that he had been told of the time, date and place of the hearing by the person who he describes as his migration agent. 17 It is plain that the appellant has been very poorly advised by the person advising him. It is quite likely that that person is not entitled to act as he or she has done and that they have been acting unlawfully. The result is nonetheless that the appellant has given as his address for service the various addresses that I have referred to. The Minister has complied with the requirements of the Act as to notice, and the position of the appellant may derive from the fault of the person advising him. 18 This is not a case, however, like the case of fraud not only on the person seeking a Protection Visa but also on the Tribunal or Court hearing the matter, recently considered by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35. 19 Here, the appellant has acted as a result of advice given by his agent and the consequences of that conduct by the appellant mean that the deficiencies have to be borne by him. 20 In relation to the merits of the appeal, the reasons for judgment of Lloyd-Jones FM analysed each of the grounds listed in the application to the Federal Magistrates Court and concluded that each of the claims could not be sustained. No error has been shown in those conclusions. 21 Concerning the lack of appreciation by the appellant, the Federal Magistrate said: 32. The applicant is a self-represented litigant and appearing with the assistance of a Mandarin interpreter. It is apparent he has been relying on an unidentified person or persons to prepare and submit material for his original protection visa application, the Tribunal review and the application to this Court. Clearly, the applicant has no comprehension of any of these documents. 22 His Honour commented: 33. The original application to this Court, together with the amended and further amended application, address issues which have no relevance to the applicant's claims. This is particularly evident in the further amended application which is a formulaic document regularly seen in this Court and bears no relationship to the issues in this Tribunal decision. I am satisfied that none of the grounds identified can be sustained. Neither is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicant's claim should be dismissed. 23 Those observations apply also to the appeal to this court. 24 It appears that the appellant has been grievously misled by the conduct of the person purportedly advising him in relation to his migration matters. I note, however, that the signature on the affidavit which accompanies his notice of appeal has the stamp of a Justice of the Peace on it, and the name "Almon Wing Hon Tong, Registration No. 153903 21/103 Majors Bay Rd, CONCORD, NSW 2137". 25 For the reasons that I have given, no error attaches to the judgment of his Honour, Lloyd-Jones FM. 26 It follows that the appeal to this Court must be dismissed. 27 I direct that the Refugee Review Tribunal be joined as a second respondent to this appeal. 28 I order that the appeal be dismissed, and I order that the appellant pay the first respondent's costs, which I fix in the sum of $1,700.00. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.