FEDERAL COURT OF AUSTRALIA

SZFUA v Minister for Immigration & Multicultural Affairs [2006] FCA 1454

MIGRATION – judicial review – invitation to attend Tribunal hearing – non attendance at Tribunal hearing – no error of law.

Held: Appeal dismissed.

Migration Act 1958 (Cth), ss 425, 425A, 426A, 441C

Minister for Immigration and Multicultural and Indigenous Affairs v SZFDE [2006] FCAFC 142

Minister for Immigration and Multicultural and Indigenous Affairs and Another v SZFHC [2006] 150 FCR 439

SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782

SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110

VNAA and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407

SZFUA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1329 OF 2006

COWDROY J

7 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent in the amount of $3200. 

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

REASONS FOR JUDGMENT

1                     This is an appeal from the decision of Lloyd-Jones FM delivered on 22 June 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 7 January 2005 handed down on 25 January 2005. The Tribunal affirmed a decision of a delegate of the first respondent to refuse the granting of a protection visa to the appellant.

2                     The appellant is a citizen of China who claimed to have a well-founded fear of persecution because he was a Falun Gong practitioner.

3                     The Tribunal found that the appellant had provided insufficient information to enable it to make a decision in favour of the appellant and accordingly wrote to the appellant on 6 December 2004, at the address he had provided for service, inviting the appellant to attend a hearing of the Tribunal on 6 January 2005.

4                     The appellant did not respond to this letter and did not attend the hearing. Accordingly, the Tribunal exercised its power under s 426A of the Migration Act 1958 (Cth)(‘the Act’) to make a decision without taking any further action to enable the appellant to appear. The Tribunal found that the appellant’s claims were unsupported by evidence and that they constituted mere assertions. Further, the information which the appellant did provide was vague and lacking in crucial details. The Tribunal for example questioned why the appellant chose to re-enter China twice after travelling abroad (as evidenced by stamps in his passport), including a previous visit to Australia, if he had a well-founded fear of persecution. The Tribunal concluded that on the limited facts available to it, it was not satisfied that the appellant had a well-founded fear of persecution.

5                     The appellant applied for a review of the Tribunal’s decision on the grounds that he was a member of the Falun Gong group and that he was gaoled by the Chinese authorities on 22 July 1999. Further he claimed that he was arrested in December 2002 and was kicked and beaten and tortured by the police and eventually imprisoned for four months.

FEDERAL MAGISTRATE’S DECISION

6                     At the first directions hearing before Lloyd-Jones FM the appellant indicated a desire to participate in the Federal Magistrates Court’s Legal Advice Scheme and was allocated a panel lawyer. The appellant attended a conference with that lawyer and was provided with written advice. He was granted leave to file an amended application but no such application was filed. He was also ordered to file written submissions but did not do so.

7                     At the hearing, the appellant repeated his claims and referred to his passport as evidencing his previous trips abroad. Lloyd-Jones FM records at [9] that:

‘The Tribunal, in its decision, raised the question of why the applicant did not make a protection visa application during his first visit to Australia. As the applicant did not attend the Tribunal hearing, the Tribunal was unable to raise this issue with him. The applicant did not offer any explanation for his actions and did not take this matter any further. It is unclear whether the applicant contests this finding. This could not be resolved by the Court as the applicant declined to say anything further in respect of this matter.’

8                     His Honour found that the Tribunal had complied with its obligations under s 425A of the Act. His Honour noted that the letter containing the invitation to attend the hearing was not returned to the Tribunal and that the appellant’s application did not contain any other contact details or telephone number. Lloyd-Jones FM also noted that the Tribunal undertook checks of flight records to ascertain whether the appellant had been travelling outside of the country, or whether a more recent address had been notified to it. There was no record of either.

9                     Lloyd-Jones FM noted that the appellant faced difficulties in bringing the proceedings due to language differences and that he did not comprehend some aspects of the proceedings. His Honour also acknowledged that as the appellant was self-represented this placed an obligation on the Court to consider independently whether any argument based on the material could be sustained. Despite these considerations, Lloyd-Jones FM was satisfied that none of the grounds identified in the original application were sustainable and that the appellant had been given the opportunity to obtain independent legal advice to amend his application. The Federal Magistrate was also satisfied from an independent review of the Tribunal’s decision that no other grounds existed by which it could be suggested that the Tribunal had fallen into jurisdictional error in its decision. Accordingly, the application was dismissed.

APPEAL TO THIS COURT

10                  The grounds on which the appeal to this Court are based are:

1.        The decision of the [Tribunal] was biased.

2.        The Tribunal failed to fully consider that the appellant would be prosecuted by the Chinese government if he returned to China.

3.        The appellant was a real Falun Gong practitioner.

11                  At the hearing of the appeal before me the appellant made no submissions in respect of the first ground of appeal. As to the second ground, the appellant claimed that the Tribunal considered the material on which he relied to be untruthful. The appellant re-iterated the he was a Falun Gong practitioner. The appellant acknowledged that he received the invitation to attend the hearing before the Tribunal, but claimed that he was ill. He claimed that he could not locate his migration adviser, but had contacted another agent. However he did not ask that agent to seek another hearing before the Tribunal.

12                   

FINDINGS

13                  The function of this Court is not to review purported errors of the Tribunal, but rather purported errors of the Federal Magistrate: see SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4]. The Court will nevertheless deal with the issues raised by the appellant as grounds of appeal even though the errors complained of are alleged errors of the Tribunal.

14                  The appellant lodged his application for a protection visa with the Department of Immigration and Indigenous affairs on 17 June 2004. He provided both a residential address and a different postal address. The postal address provided was PO Box K412, Haymarket NSW 1240.

15                  By letter dated 23 June 2004 which was forwarded to the appellant’s postal address he was informed that his application for a protection visa had been refused. Although it was not required to do so, the Tribunal also forwarded a copy of such letter to the appellant at his residential address. Such letter was returned unclaimed.

16                  The letter of 23 June 2004 was apparently received by the appellant because on 30 July 2004 he applied to the Tribunal for a review of the decision of the delegate. His Application for Review contained details of the appellant’s home address and his mailing address. The home address was the same as that to which the delegate’s letter dated 23 June 2004 had been sent and returned unclaimed. The mailing address was changed to 160/422 Pitt Street, Sydney NSW 2000.

17                  By letter dated 30 July 2004 the Tribunal wrote to the appellant at his mailing address, specified in the Application for Review acknowledging receipt of his application. Thereafter on 6 December 2004 the Tribunal wrote to the appellant at his mailing address advising him that it was unable to make a decision at that time and inviting him to attend a hearing at 10.30 am on 6 January 2005. The letter enclosed a Response to Hearing Invitation form. Such form was not returned and neither this letter, nor the previous letter sent to that address were returned unclaimed.

18                  A check list was prepared in relation to the fact that the appellant had not responded to the invitation. Such check was made on 23 December 2004. Since no telephone number, mobile telephone number or facsimile number had been provided in the Application for Review the Tribunal had no other means of contacting the appellant.

19                  In the absence of the appellant the Tribunal considered the application. By letter dated 7 January 2005 addressed to the appellant’s mailing address, the Tribunal advised that the decision would be handed down on 25 January 2005. On 28 February 2005 the appellant made his application pursuant to s 39B of the Judiciary Act 1903 (Cth) challenging the decision of the Tribunal.

20                  No explanation was offered before Lloyd-Jones FM for the reason of the appellant’s non-attendance at the hearing of the Tribunal.

21                  Lloyd-Jones FM held that the Tribunal fulfilled its obligation under s 425 of the Act by inviting the appellant to attend its hearing. He further held that sufficient notice was given of the hearing as required by s 425A. The notice provided under s 425 contained the following statement: ‘If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on you case without further notice.’ This was the statement required by s 425A(4) which, together with the fact that the invitation was forwarded by prepaid post, as required by s 441C(4) to the appellant at the last known address for service, satisfies the requirements of s 425 and s 425A. By virtue of s 441C(4)(a) the appellant is deemed to have received the invitation seven working days after its despatch on 6 December 2004.

22                  Whether the invitation actually came to the appellant’s notice is not relevant: see VNAA and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [4]-[9], [13]-[15], [30]; SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110; Minister for Immigration and Multicultural and Indigenous Affairs v SZFDE [2006] FCAFC 142; Minister for Immigration and Multicultural and Indigenous Affairs and Another v SZFHC [2006] 150 FCR 439 at [38]-[39].

23                  Since the appellant failed to attend the hearing, the Tribunal was entitled to proceed in his absence pursuant to s 426A of the Act to consider the material available to it; see SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238.

24                  As the second ground of appeal, the Tribunal considered all of the information before it. The reason for the Tribunal’s decision was the absence of information which could satisfy it that the claims of the appellant were sufficient to show that he had a well-founded fear of persecution. As such it was the absence of such information which led to the decision.

25                  No material has been offered in relation to the third ground of appeal. The Tribunal was unconvinced that the appellant was a Falun Gong follower. This ground is a finding on the merits and is accordingly not reviewable in an application for judicial review.

26                  I am unable to discern any error of law to support the allegation that the Tribunal failed to fully consider that the appellant would be persecuted by the Chinese government if he returned to China or that the appellant was a Falun Gong practitioner. Further, no error of law by Lloyd-Jones FM is apparent. It follows that the appeal must be dismissed.

27                  The first respondent has applied for an order that the costs of the appeal be paid by the appellant in the amount of $3200. As this amount is within a realistic range for costs the Court will make such order.

Associate:

Dated: 7 November 2006