SZIXO v Minister for Immigration and Citizenship

Federal Court of Australia|2008-02-18|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellants appeal from the decision of Federal Magistrate Raphael delivered on 17 September 2007 which dismissed an Application for Review of the decision of the Refugee Review Tribunal ('the Tribunal') handed down on 16 May 2006. That decision affirmed the decision of a delegate of the first respondent ('the Minister') not to grant the appellant a Protection (Class XA) visa ('protection visa').

FACTS 2 The appellant, a citizen of China, arrived in Australia on 4 July 2005. On 2 August 2005 he made an application to the Department of Immigration and Multicultural and Indigenous Affairs for a protection visa. The appellant claimed that he has been a practitioner of Falun Gong for a long time and was elected as the station master in his community in China in September 1996. He claimed that the government opposed such movement and on 26 April 1997 he led other practitioners in a demonstration to the Zhongnahai. He claimed that having waited outside all night to tell the Premier of the truth of their beliefs, he was arrested and put into detention in Beijing. He said he was abused by the police and when he returned to his home town, lost his job and his family even though they did not practice Falun Gong. He claimed they lived under pressure and as some family members were afraid of him, even believing that he would kill them, he left China to come to Australia where he could practice Falun Gong freely and did not wish to return for fear of persecution. 3 The appellant's application for a protection visa was refused. On 9 January 2006 he applied for a review of that decision to the Tribunal. In such application he recorded that he did not have an adviser whom he authorised to act for him in respect of the application.

TRIBUNAL'S FINDINGS 4 The Tribunal considered the Application for Review against the refusal by the Minister on 19 December 2005 to grant a protection visa. The appellant's claims were vague and very general and were in effect nothing more than unsupported allegations. He had provided very few details of his personal knowledge of Falun Gong or of his own practice of Falun Gong and he could provide no details of the places either in Australia or in China where he practiced Falun Gong and no details concerning the incidents upon which he relied. 5 By letter dated 16 January 2006 the Tribunal invited the appellant to attend an interview fixed for 9 February 2006. It was sent to the address provided by the appellant, but he failed to respond or appear. 6 The Tribunal noted that the appellant worked in employment until shortly before his departure from Australia, had resided at the same address in China until his departure and had obtained a passport without difficulties in his own name with the correct personal details. In these circumstances the Tribunal concluded that the appellant was not of any adverse interest to the authorities. It found the claims were vague and unsupported and was not satisfied that the appellant was a genuine adherent to Falun Gong or that he would face harm if he were to return to China. Accordingly it found that the appellant was not someone to whom Australia owed protection obligations and that he therefore did not satisfy the criteria set out in s 36(2) of the Migration Act 1958.

APPLICATION FOR REVIEW TO FEDERAL MAGISTRATES COURT 7 By application filed on 7 June 2006 the appellant applied to the Federal Magistrates Court of Australia for judicial review. Such application alleged the Tribunal fell into jurisdictional error in making a factual finding concerning his practice of Falun Gong. As a second ground the appellant claimed that the Tribunal did not accept the fact of his involvement in Falun Gong and that he was arrested on 26 April 1999 and abused by the police. Accordingly he claimed the Tribunal fell into jurisdictional error in making such finding. 8 Federal Magistrate Raphael considered the appellant's application and observed that the Tribunal was not satisfied on the information provided to it of the appellant's claims. His Honour observed that the Tribunal had invited the appellant to attend a hearing and he did not do so. 9 Raphael FM referred to the fact that before him the appellant claimed that he had taken his papers to a migration agent who had told him that he could apply for an adjournment because he was working outside of Sydney at the time. However, his Honour noted that on the face of the documents provided there was no migration agent and that even if a migration agent were retained, it was not the fault of the Tribunal that he had failed to attend the hearing before it. Further, it was not the fault of the Tribunal that the migration agent had not been informed of the hearing. His Honour referred to the decision of the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401 which held that fraud could be a ground for setting aside a Tribunal decision however his Honour said 'I do not believe that this case comes anywhere near the facts cited in that decision'. Accordingly there was no jurisdictional error in the manner in which the Tribunal reached its decision. For these reasons the application was dismissed.

APPEAL TO THIS COURT 10 By notice of appeal date 5 October 2007 the appellant appeals from the decision of Raphael FM. The grounds of appeal stated in the notice of appeal states as follows: The applicant asked his agent to apply for an adjournment of the proceedings of RRT because he was working outside of Sydney at the time. But the agent didn't do it which made the applicant lose the chance to appear before the Refugee Review Tribunal to present his evidences so the Refugee Review Tribunal refused his application that is not justice. The Federal Magistrate RAPHAEL FM agreed to Refugee Review Tribunal which seems not justice.

11 The appellant attended before the Court unrepresented but assisted by an interpreter. He sought a hearing before the Tribunal upon the same basis which he raised before Raphael FM. He claimed that he was working a long distance from Sydney when the letter from the Tribunal informing him of the hearing date was received at his residence. He said that another person at the residence telephoned him at about 4.30 pm on the day before the hearing and informed him of the hearing date. He said he telephoned his migration agent and asked him to notify the Tribunal that he wished to seek an adjournment. 12 The appellant claimed he did not know the full name of the agent, stating that he could only remember the name 'Alex'. He could not provide the agent's address or telephone number. Initially he stated that the agent made the phone call to the Tribunal. However he later said that he did not know whether such a call had been placed to the Tribunal. The appellant was vague in respect of the date when he first retained the migration agent and he acknowledged, when it was put to him, that his Application for Review to the Tribunal showed that he had not retained a migration agent. 13 The Tribunal in forwarding the invitation to the address provided by the appellant discharged its duty pursuant to s 425(1) of the Migration Act 1958, and pursuant to s 426A(1) the Tribunal was accordingly entitled to proceed with the review. Significantly, the appellant acknowledges that the invitation was received at the address nominated in his Application for Review. The Court also observes that, although not of direct relevance, the appellant had been invited by a delegate of the Minister to attend an interview on 13 October 2005 concerning his application for a protection visa. The appellant did not respond, nor did he respond to a further invitation sent on 7 November 2005 to provide additional information to the delegate. 14 Even if the appellant had engaged a migration agent it is an established principle that negligence of a migration agent does not lead to intervention to overturn a decision made in consequence of that negligence: see SZFDE (2007) 81 ALJR 1401. 15 The appeal is based entirely upon the conduct of the migration agent which does not amount to fraud. Quite apart from the question of whether the appellant ever had a migration agent, any negligence by the agent is of no effect and cannot constitute a ground for appeal. It follows that the appeal must be dismissed.

COSTS 16 The Minister seeks an order that the appellant pay its costs. The costs are assessed in the amount of $952.50, being 75% of the first respondent's solicitor/client costs of $1,270, and counsel's fees amounting to $1,100.00, making a total of $2,052.50. As such costs appear reasonable, the Court will quantify such costs pursuant to O 62 r 4(2)(c) of the Federal Court Rules. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Counsel for the Appellant: The appellant appeared in person

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