FEDERAL COURT OF AUSTRALIA

SZHDP v Minister for Immigration and Multicultural Affairs [2006] FCA 677

SZHDP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & REFUGEE REVIEW TRIBUNAL

NSD 362 OF 2006

COLLIER J

25 MAY 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal is joined as second respondent.

2.                  The appeal is dismissed.

3.                  The appellant is to pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of Scarlett FM of 3 February 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 16 August 2005.  The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the appellant on 23 February 2005.  I note that the Notice of Appeal names only the Minister as a respondent.  In accordance with the decision of the High Court of Australia in SAAP v Minister for Immigration and Multicultural Affairs (2005) 215 ALR 162, the Tribunal should also be added as a respondent and I order so in this case.

2                     The appellant is a citizen of China.  She arrived in Australia on 5 December 2004 and applied for a protection visa five days later.  She claims to possess a well-founded fear of persecution on grounds of her political opinion.  She was an active supporter of Taiwanese independence while living in China.  She claimed to have written articles on various websites and organised protest actions, although she did not name the websites or the location of the protests.  The Tribunal dismissed the appellant’s application for review due to her failure to provide the Tribunal with evidence supporting her claims.  The lack of detail in those claims and the inconsistency between them and “public knowledge” that the PRC Government took a serious view of supporters of Taiwanese independence, yet the appellant was not arrested and managed to obtain a passport from the government for her passage to Australia.

3                     The appellant applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court on 19 August 2005.  Her amended Notice of Appeal alleged the following:  first, the appellant said the Tribunal breached the rules of procedural fairness by not inviting her to give oral evidence and arguments at a hearing.  Second, she referred to s 420 of the Migration Act 1958 (Cth) which required the Tribunal to do substantial justice in deciding each case on its merits and avoiding technicalities.  Third, the appellant complained of bias and also submitted that the Tribunal was obliged to refer to resources about China and its democratic system.  The appellant also stated on her amended application that she was yet to receive a letter of advice from the solicitor she had been referred to by the Tribunal’s legal aid scheme.  The presiding Federal Magistrate, Federal Magistrate Scarlett, questioned the appellant about this at the hearing and she affirmed that she received the letter after filing the amended application.

4                     Scarlett FM found the appellant’s first ground of appeal was unsustainable given that the evidence demonstrated that the Tribunal had invited the appellant to attend a hearing, but the appellant had failed to attend and not contacted the Tribunal to advise as to why.  As to the second ground, Scarlett FM concluded that the Tribunal did consider the appellant’s claims “based on the limited material that was before it” (at para 15 of Scarlett FM’s judgment).

5                     In relation to the allegation of bias, Scarlett FM observed that it was a “serious matter and should not be lightly made” and that the “circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme” (at para 16 of Scarlett FM’s judgment).  His Honour went on to find no evidence of bias.  On the claim that the Tribunal was obliged to refer to resources about China and its democratic system, Scarlett FM held that it was “well established that the Tribunal has no obligation to conduct its own investigations of an applicant’s claim” (at para 18 of Scarlett FM’s judgment).

6                     His Honour referred to the judgment of Hely J in SZDXC v Minister for Immigration and Multicultural Affairs [2005] FCA 1306 where Hely J described it as an “inevitable consequence” that an application is rejected where the applicant has failed to attend a hearing despite being advised by the Tribunal that the Tribunal is unable to make a decision and the applicant’s failure upon the material available to it.  Scarlett FM observed that a similar comment applied to the appellant’s case.  His Honour dismissed the appellant’s application.

7                     The notice of appeal to this Court makes one allegation against the Federal Magistrates Court and three in relation to the Tribunal.  The appellant submits that Scarlett FM erred in relation to her participation in a free legal advice scheme and her receiving a letter from a solicitor as part of the scheme after she had filed an amended application in the Federal Magistrates Court.  The appellant’s allegations in relation to the Tribunal are broad and unparticularised.  She alleges that the Tribunal committed a jurisdictional error by identifying “a wrong issue” and making an erroneous finding and conclusion.  She also alleges that the Tribunal made a decision without evidence before it and that the Tribunal should have made a proper investigation.

8                     The appellant then refers to the Tribunal basing a judgment on what it thought to be “public knowledge”.  This is possibly a reference to the Tribunal’s finding that the appellant’s claims were inconsistent with “public knowledge” of the PRC Government’s view on the supporters of Taiwanese independence.  In relation to this claim she quotes a Full Court decision in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 at para 15-16, although the connection between the judgment and the claim is not clear.

9                     The appellant also complained, as she did in the court below, that the Tribunal was obliged to refer to resources about China and its democratic system.  She added that the Tribunal did not give her enough time to submit those resources.

10                  The appellant appeared before me in court assisted by an interpreter.  The appellant made two submissions in the form of a letter handed to me during the proceedings as follows:

1.           I request for legal advice, but before I got my legal advice, I was requested by the respondent’s solicitor to submit my amended application before 13 January 2006, while I received a letter from my legal advice on 17 January 2006.  As I do not familiar with Australian law, I think it is unfair for me to submit my amended application before I receive my legal advice.

2.           I request to change the respondent solicitor, as he is the same solicitor for my case of SYG2636/2005 in Federal Magistrates Court.  As I think it is inappropriate for him to be the respondent’s solicitor for my case in the Federal Court.  In this situation, I think it would be unfair for me to go to the Federal Court with the same respondent’s solicitor.

11                  The appellant’s first submission clearly related to her ground of appeal pertaining to the decision of the learned Federal Magistrate, namely that she had not received legal advice before filing an amended application.  In my view, if the appellant had required an adjournment before the case came before Scarlett FM, an adjournment could have been sought.  It is unfortunate that the appellant did not seek an adjournment in these circumstances, however no error in the reasoning of the learned Federal Magistrate appears from this submission.

12                  While I note the second submission of the appellant, I also note that it is not the role of the court to intervene in the legal representation chosen by parties for litigation purposes before the court.

13                  In other grounds in her Notice of Appeal, the appellant submits without further explanation that the Tribunal has identified a wrong issue and reached a wrong conclusion.  The appellant also states that the Tribunal had made a finding that she was not persecuted, without any evidence to that effect.

14                  The appellant referred as authority for her submissions to the Full Court decision SJSB, as I noted earlier in this judgment.  As pointed out by Counsel for the Minister however this case is authority which favours the Minister, as it supports the proposition that the Tribunal cannot grant a visa unless it is positively satisfied that the criteria are made out, and that if it is not so satisfied, it must refuse the visa.  In my view it is clear from the detailed reasons of the Tribunal that it carefully considered the evidence before it.  There is no evidence before me that the Tribunal erred in law in the conclusions that it reached.

15                  The appellant finally submitted that the Tribunal was subject to obligations to refer to resources about China and its democratic system and to allow the appellant to submit resources regarding her case.  The appellant had put a similar argument to Scarlett FM.  In rejecting the submission, the learned Federal Magistrate said at para 18 of his judgment:

            I think it is well established that the Tribunal has no obligation to conduct its own investigations of an applicant’s claim.  The fact is that the applicant provided insufficient evidence to allow the Tribunal to reach a positive state of satisfaction.  This is a common occurrence in matters where the applicant does not appear before the Tribunal at a hearing.

16                  The comments of the learned Federal Magistrate undoubtedly represent the law.  They are consistent with comments of Gummow and Hayne JJ in the High Court case Abee v The Commonwealth (1999) 197 CLR 510 at 576 where their Honours said:

            The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor.  It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.  The Tribunal must then decide whether that claim is made out.

17                  To the extent that the appellant needed more time to collect her evidence to submit to the Tribunal, there is again no evidence that the appellant sought more time by way of adjournment or otherwise.  Nor has the appellant explained why she needed more time to collect her evidence.

18                  The Tribunal at the hearing did consider DFAT country information, however only concerning exit procedures and the departure of nationals from China.  It is perhaps unfortunate that, if the appellant had specific information concerning her own circumstances and the likelihood of persecution, she did not provide it to the Tribunal.  It is not, however, up to the Tribunal to pursue every possible line of investigation in the absence of information provided by the applicant herself.

19                  In my view, the Notice of Appeal does not disclose any basis which would found an appeal from the decision of Scarlett FM.

20                  Accordingly, I make the following orders:

1.                  The Refugee Review Tribunal is joined as second respondent.

2.                  The appeal is dismissed.

3.                  The appellant is to pay the costs of the Minister for Immigration and Multicultural Affairs.

Associate:

Dated:              1 June 2006