FEDERAL COURT OF AUSTRALIA

SZFVW v Minister for Immigration and Multicultural Affairs [2006] FCA 1457

MIGRATION – failure to attend hearing – appeal dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) – no jurisdictional error.

Held: Appeal dismissed.

Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb)(ii)

Migration Act 1958 (Cth), ss 424A, 425, 426A,

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) ALR 162

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 225

SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 474

SZCCF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1089

SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238

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

SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195

SZGER v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1162

SZHUT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1022

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

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

NSD 1489 OF 2006

COWDROY J

8 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.          The Refugee Review Tribunal be joined as second respondent to the proceedings.

2.          The appeal be dismissed pursuant to s 25(2B)(bb) (ii) of the Federal Court of Australia Act 1976 (Cth).

3.          The appellant pay the costs of the first respondent in the sum of $1900.

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

REASONS FOR JUDGMENT

1                     The appellant appeals to this Court from the decision of Driver FM delivered on 18 July 2006 which dismissed a challenge by the appellant to a decision of the Refugee Review Tribunal (‘the Tribunal’) that he was not entitled to a protection visa.

2                     The appellant, a citizen of the People’s Republic of China, arrived in Australia on 23 July 2004 and made an application for a protection visa on 30 July 2004. The appellant claimed that he had a well-founded fear of persecution because he was a practitioner of Falun Gong.

3                     By letter dated 15 December 2004 the Tribunal invited the appellant to attend a hearing before it. No response was received and the appellant did not appear at the hearing. The Tribunal proceeded to make a decision pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal found that the evidence before it relating to the appellant’s claim was unclear and lacking in detail. Consequently the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

FEDERAL MAGISTRATE’S DECISION

4                     Before Driver FM the appellant relied on an amended application filed on 8 June 2005 which asserted various jurisdictional errors including, inter alia, that the Tribunal failed to take into account a relevant consideration; that the decision was not based upon reasoning which provided a rational or logical foundation; that the Tribunal failed to observe the Act; the Tribunal failed to refer to sufficient independent information; that the Tribunal failed to assess the appellant’s persecution as a member of a particular social group; and that there was bias by the Tribunal.

5                     Driver FM accepted the first respondent’s submissions that the Tribunal complied with the requirements to invite under s 425 of the Act and as the appellant did not appear, the Tribunal was entitled to proceed under s 426A of the Act. Such submissions claimed that the Tribunal’s decision was based on there being no persuasive evidence and, as such, s 424A of the Act did not apply. Driver FM found the Tribunal’s decision was free from jurisdictional error and dismissed the application.

APPEAL TO THIS COURT

6                     The appellant’s notice of appeal raises issues that the appellant was not given an opportunity to explain his case; that there was bias; that there was no material or evidence to justify the decision; that there was a failure to comply with s 424A of the Act; and that the Federal Magistrate did not consider the application carefully in light of the above errors.

7                     The appellant did not attend the hearing before me. The appellant’s name was called outside of Court three times but there was no response. Affidavit evidence was tendered by the respondent verifying that on 27 September 2006 a letter was sent by prepaid post to the address for service of the appellant reminding him of the time and date fixed for the current hearing and enclosing a map showing the location of the Court building. The respondent indicated that this correspondence remained unanswered and had not been returned unclaimed.  Accordingly no further submissions were made on the appellant’s behalf at the hearing.

8                     The respondent seeks to have this appeal dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia  Act 1976 (Cth). While I am disposed to make this order due to the non attendance of the appellant, for the sake of completeness I will nevertheless make substantive findings on the material before me and address each of the issues raised by the appellant in the Notice of Appeal.

FINDINGS

No opportunity to explain case

9                     The appellant’s claim that he was not afforded an opportunity to explain his case must be considered against the following facts. Following his arrival in Sydney on 23 July 2004 the appellant completed a protection visa application. It recorded his postal address in Australia as 116/422 Pitt Street, Sydney NSW 2000. The Department of Immigration and Multicultural and Indigenous Affairs (the Department’) wrote to the appellant at his nominated address acknowledging receipt of his application on 22 October 2004. It again wrote to him at that address by letter dated 22 October 2004, informing him that his application for a protection visa had been refused. On 26 November 2004 the appellant applied to the Tribunal for a review of the delegate’s decision. The Application for Review again nominated his mailing address as that in his original visa application and to which previous correspondence had been sent from the Department, none of which was returned unclaimed.

10                  By letter dated 29 November 2004 the Tribunal acknowledged receipt of his Application for Review. Such letter was sent to the appellant’s mailing address. By letter dated 15 December 2004, also to the same mailing address, the Tribunal informed the appellant that it had not been able to come to a decision and extended an invitation to him to attend on Thursday 13 January 2005 at 10.30 am for the purpose of a hearing. A ‘Response to Hearing Invitation’ was enclosed The letter also advised that in the event that he did not attend the hearing, and the hearing was not postponed, the Tribunal could make a decision without further notice. Such letter was not returned unclaimed and the ‘Response to Hearing Invitation’ form was not returned.

11                  Accordingly the Tribunal proceeded to hear the appeal in the appellant’s absence and by letter dated 13 January 2005 the Tribunal advised the appellant that the decision would be handed down on 2 February 2005. Thereafter a further letter was sent to the appellant on 2 February 2005 at the same mailing address.

12                  The invitation sent to the appellant complied with the requirements of s 425 and s 425A of the Act. Since post was the method adopted for notification, the provisions of s 441C(4)(a) applies and the appellant is deemed to have received the invitation within seven working days from the date it was dispatched, namely 22 December 2004. In these circumstances it is not necessary for the Tribunal to determine affirmatively that the invitation was received by the appellant: see VNAA 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. Accordingly, the appellant was afforded an opportunity to explain his case. There was no error in the decision of Driver FM.

Bias

13                  The appellant has made allegations that ‘the decision was induced by actual bias of the officer.’ No evidence has been provided to support a finding of actual bias. The principles relating to allegations of bias were considered in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. In that decision the Full Court made it plain that allegations of bias are serious and should be clearly alleged and proved (see at [43]). The allegations in the present case are unsupported by any evidence, and in my opinion, do not disclose a genuine claim.

No material to justify the decision

14                  The Tribunal found that the applicant’s assertions were untested and ‘unclear and are lacking detail in important respects’. Without further details it was unable to conclude that the appellant practised Falun Gong. Further, there was no detail regarding why he claimed to be a ‘target for investigation’ and there was no persuasive evidence before the Tribunal to enable it to be satisfied that there was a real chance that the appellant would face serious harm for the purposes of the Convention relating to the Status of Refugees if he returned to his country. The Tribunal could not grant a protection visa unless it was satisfied that the criteria for the grant of a protection visa were met: see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 225 at [15]-[16]. The Tribunal was entitled to reach such conclusion on the evidence before it and there was no error by Driver FM in his conclusion that it was ‘manifestly clear that the applicant was unsuccessful before the RRT due to lack of detail and because there was “no persuasive evidence” to enable it to reach the requisite state of satisfaction’.

Failure to comply with s 424A of the Act

15                  No detail was provided by the appellant concerning this alleged breach. The Tribunal’s obligation pursuant to s 424A only extends to information which the Tribunal considers would be a reason, or part of a reason, for affirming the decision under review. The Tribunal’s reasons confirm that it was unable to reach a decision favourable to the appellant because of the absence of information provided. Section 424A(1) does not arise in these circumstances: see SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29]; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [9]-[12]; SZGER v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1162 at [8]; SZHUT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1022 at [10]; SZCCF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1089 at [21]; SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 474 at [48]-[49].

16                  Driver FM was correct in concluding that s 424A of the Act had no application.

Failure of Federal Magistrate to consider application carefully

17                  No alleged error has been identified and no error is apparent. Accordingly, the Court rejects this ground of appeal.

18                  Since none of the grounds of appeal have succeeded, the appeal must be dismissed. The Court notes however that consistent with the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) ALR 162, the Refugee Review Tribunal should be joined as a party to these proceedings.

Costs

19                  The first respondent has applied for an order that the costs of the appeal be paid by the appellant in the amount of $1900. As this amount is within a realistic range for costs the Court will make such order.

Associate:

Dated:         14 November 2006