FEDERAL COURT OF AUSTRALIA

SZICG v Minister for Immigration & Multicultural Affairs [2006] FCA 1476

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

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

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

VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 291

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

NSD 1087 OF 2006

COWDROY J

10 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent in the sum of $1400.

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 Scarlett FM delivered on 16 May 2006 which dismissed a challenge by the appellant to a decision of the Refugee Review Tribunal (‘the Tribunal’) which found that the appellant was not entitled to a protection visa.

2                     The appellant is a citizen of the People’s Republic of China (‘the PRC’). The appellant arrived in Australia on 4 May 2005 and made an application for a protection visa on 16 May 2005. Before the Tribunal, the appellant claimed that he had well-founded fear of persecution as a practitioner of Falun Gong. His claims involved that he chaired house meetings; that officers from the Public Security Bureau ransacked his house; and that group members were arrested and detained.

3                     In a letter dated 14 September 2005, the Tribunal invited the appellant to attend a hearing on 17 November 2005. On 17 November 2005, the Tribunal received a facsimile letter from the appellant’s authorised recipient stating that the appellant did not wish to attend the hearing and that the authorised recipient no longer acted for the appellant. On the scheduled date, the appellant did not appear at the hearing and the Tribunal proceeded to make a decision pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal was not satisfied that the appellant had well-founded fear of persecution, nor that the appellant was a Falun Gong practitioner. Additionally the Tribunal was not satisfied that the appellant was of adverse interest to the authorities on the basis of the lack of details and the ‘scanty’ information provided by the appellant.

APPLICATION TO the FEDERAL MAGISTRATES COURT

4                     On 12 January 2006 the appellant made an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. The appellant relied on an amended application which set out two grounds of appeal. The first ground alleged the Tribunal did not carry out its statutory duty, which from the particulars suggested a breach of s 424A of the Act. The second ground alleged a breach of s 426A of the Act.

5                     Scarlett FM found the appellant’s grounds to be misconceived. Firstly, the appellant referred to a letter dated 11 October 2005 in his application, but there was no letter dated as such. His Honour found that the appellant had attached the delegate’s decision to the Application for Review and thus the application did contain substantive information. His Honour noted that information caught by s 424A(1) of the Act was only information the Tribunal considers would be the reason or part of the reason for affirming the decision under review. As the application referred to the decision of Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 438, His Honour considered that decision but did not find it was on point.

6                     In relation to the second ground, his Honour stated that the submissions misconceived s 426A of the Act and overlooked the fact the Tribunal also considered the facsimile letter indicating that the appellant had decided not to attend the hearing before the Tribunal. His Honour found that there was no error on the part of the Tribunal proceeding under s 426A of the Act as there was ample time before the Tribunal made its decision for the appellant to explain why he could not attend. Accordingly Scarlett FM found no jurisdictional error and dismissed the application.

APPEAL TO THIS COURT

7                     The appellant’s notice of appeal raises the following grounds: that the Tribunal breached s 424 of the Act as country information and other information was not provided to the appellant; that the Tribunal breached s 425 of Act by failing to exercise its discretion to hold a hearing; and that the Federal Magistrate did not give much weight to the appellant’s submissions.

8                     At the hearing of the appeal before me the appellant acknowledged receiving the invitation issued under s 425(1) of the Act however he said that the reason he did not attend the hearing before the Tribunal was because he feared that he would be further persecuted as he had been in the past. He also referred to the fact that he had received an injury to his head but did not explain whether such injury was part of the reason for his non-attendance before the Tribunal.  

Findings

Alleged breach of s 424

9                     The appellant claims that the Tribunal failed to give him important information clearly and completely which was used as part of the reasons for affirming the decision and in particular failed to ensure that he understood why ‘independent country information’ was relevant to the review.

10                  The alleged breach of s 424 is more properly an alleged breach of s 424A which requires the Tribunal to provide certain information to an applicant. Subject to s 424A(3) the Tribunal must give an applicant particulars of any information that the Tribunal ‘considers would be the reason, or part of the reason, for affirming the decision that is under review…’ It is necessary to look at the Tribunal’s reasons for its decision to determine whether any of the information was a reason, or part of the reason, for affirming the delegate’s decision: see VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 291 at [41] per Gray J. However s 424A(3) relevantly provides that s 424A does not apply to information:

‘(a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; …’

11                  As a consequence, information which is not specific to an applicant need not be furnished to him or her. Independent country information is information which is not specific to an applicant and the Tribunal was under no obligation to provide that information to the appellant in reaching its decision.

12                  Upon reading the Tribunal’s decision, it is apparent that the Tribunal found the claim of the appellant to be unsubstantiated and lacking information, and that independent country information was not relied upon by the Tribunal in reaching its decision. It was because of the deficiency in the information provided that the Tribunal reached the decision adverse to the appellant. No details of the appellants alleged practise of Falun Gong was provided and the Tribunal could not be satisfied that the appellant had a well founded fear of persecution in the PRC for this reason. Where an applicant is unable to satisfy the Tribunal of the merits of its application, s 424A(1) of the Act is not enlivened: 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].

13                  Having read the decision of Scarlett FM and that of the Tribunal, the Court is satisfied that there is no jurisdictional error as alleged.

Breach of s 425 of the Act

14                  The appellant claims that the Tribunal breached s 425 of the Act. Such section requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

15                  The evidence establishes that the appellant arrived in Australia on 4 May 2005. He applied for a protection visa and nominated a migration agent, namely Grace X Chen of PO Box 1178, Bankstown NSW 1885, as his migration agent who was authorised on his behalf to receive all written communications about his application. The receipt of the application was duly acknowledged by the first respondent on 18 May 2005 by letters which were sent to both the appellant at the nominated Bankstown post office box and also to his migration agent at the same address. By letter dated 14 July 2005 the migration agent was notified that the application for the protection visa had been refused. A copy of this letter was also forwarded to the appellant at his residential address contained in his visa application. None of the letters forwarded either to the appellant or to his migration agent were returned unclaimed.

16                  An Application for Review of the Tribunal’s decision was received by the Tribunal on 22 August 2005. It again contained details of the appellant’s residential address, namely 207/21 Hickson Road, Millers Point NSW 2000, which is identical to the residential address he provided in his visa application. It also nominated the address of Ms Grace X Chen as his migration agent who was authorised to act for him in respect of the visa application.

17                  The first respondent acknowledged receipt of the review application by letter dated 26 August 2005. The letter was addressed to the appellant’s migration agent. By letter dated 14 September 2005 the Tribunal notified the migration agent that the Tribunal had been unable to make a decision in his favour on the information provided and invited him to attend a hearing fixed for 12.00 pm on Thursday 17 November 2005. The letter explicitly informed the agent as follows:

‘As the authorised recipient, all correspondence in this case will be sent to you as requested by Mr…[name withdrawn]. Please note that Mr …[name withdrawn] has not been sent a copy of this letter. It is important that you tell the review applicant about the contents of this letter.’

18                  The letter also advised that in the event that there was no attendance and the Tribunal did not postpone the hearing, a decision could be made by the Tribunal without further notice.

19                  As at 9 November 2005 no response had been received and the Response to Hearing Invitation form had not been returned. However, on the day fixed for the hearing a message was sent by the migration agent advising that the appellant had decided not to attend the hearing. The agent advised that she no longer acted for the appellant and requested that all future correspondence be sent to him directly at the address at 207/21 Hickson Road, Millers Point NSW 2000.

20                  By letter dated 13 December 2005 the Tribunal wrote to the appellant advising him that a decision had been made and that it would be handed down on 13 December 2005. On that date the appellant was advised of the Tribunal’s decision.

21                  The appellant acknowledges before this Court that he received notification of the hearing date. Accordingly the Tribunal had extended the invitation required by s 425 of the Act and had included in that invitation a statement to the effect of s 426A of the Act, namely that the Tribunal could proceed to hear the application in the absence of the appellant if he did not appear. As such s 425A was satisfied. There is no basis for the suggestion that the Tribunal should have refrained from proceeding to deal with the claims of the appellant. No jurisdictional error arises and accordingly this ground is rejected.

Failure to give weight to appellant’s submissions

22                  The decision of the Scarlett FM reveals that he understood the submissions of the appellant and has carefully analysed and decided each of the issues. I do not consider that there is any merit in this ground.

23                  It follows that the appeal must be dismissed.

Costs

24                  The first respondent has sought an order that the appellant pay the costs of the first respondent in the sum of $1400. As this amount falls within a realistic range for costs the Court will make such an order.

Associate:

Dated:         10 November 2006