FEDERAL COURT OF AUSTRALIA

SZHKI v Minister for Immigration & Multicultural Affairs [2006] FCA 1517

MIGRATION – application for protection visa – procedural fairness – non-attendance by the appellant at the Tribunal hearing

B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 followed

M172 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 23 applied

NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 considered

SZHKI v Minister for Immigration & Multicultural Affairs [2006] FMCA 1230 affirmed

VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 considered

SZHKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NSD 1635 OF 2006

MIDDLETON J

13 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

2.                  The Refugee Review Tribunal be joined as a respondent to the proceeding. 

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 against a judgment of a Federal Magistrate of 16 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 7 March 2001 and handed down on 29 March 2001.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant.

2                     The appellant is a citizen of the People’s Republic of China (‘China’).  Before the Tribunal, the appellant claimed to have a well-founded fear of persecution as a Falun Gong practitioner.  The appellant’s claims included that he suffered persecution by the Chinese authorities, including that the Public Security Bureau broke up their meetings, confiscated their personal property and abused Falun Gong members.

3                     On 24 January 2001, the Tribunal sent a letter to the appellant indicating that it was unable to make a favourable decision on the material relating to the appellant’s application and invited the appellant to a hearing on 2 March 2001.  That letter was sent to the appellant’s adviser and to the appellant’s home address.  No response was received and the letter sent to the appellant’s address for service was returned unclaimed.  The Tribunal made additional inquiries but was unable to find further information as to the appellant’s whereabouts.  The appellant did not appear at the Tribunal hearing and the Tribunal proceeded to make a decision pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’).

4                     The Tribunal was not satisfied, on the evidence before it, that the appellant had a well-founded fear of persecution within the meaning of the Convention.  The Tribunal considered country information regarding Falun Gong and the Chinese authorities’ response to Falun Gong which indicated that ordinary Falun Gong practitioners who practise privately are unlikely to be the subject of attention.  As the appellant had not claimed to be a leader, or be employed by the government, or to be a member of the Communist party, the Tribunal found on the basis of the country information that it appeared the appellant would not be adversely targeted by the Chinese authorities.

5                     Before the Federal Magistrate, the appellant claimed there was jurisdictional error in the Tribunal’s decision and denial of procedural fairness.  The appellant asserted that he had lost the opportunity to attend the hearing due to the wrongful conduct and advice by his migration agent.  Additionally, the appellant asserted jurisdictional error on grounds that the Tribunal did not comply with s 424A of the Act but that ground was not pressed at hearing.

6                     The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, found there was no contention the Tribunal was on notice of the alleged wrong advice received by the appellant and thus the Tribunal’s decision to proceed under s 426A of the Act was not vitiated.  The Federal Magistrate found in this case the Tribunal was under obligations of procedural fairness, and s 422B did not apply, and went on to hold (at [26]):

The requirements on the Tribunal of inviting an applicant to a hearing under s 425, and the requirements of common law procedural fairness, are exhausted by the express empowerment of the Tribunal to proceed under s 426A(1) once its two pre-conditions are satisfied.  No contention has been made in the present case that those pre-conditions were not satisfied…

The Federal Magistrate found the appellant’s grounds were unsupported and dismissed the application.

Appeal to this court

7                     By notice of appeal filed on 25 August 2006 the appellant raised a single ground of appeal, as follows:

His Honour erred in failing to recognise the principle of non-refoulment contained in article 33 of the 1951 Convention relating to the Status of Refugees (The Convention).

8                     Before the Federal Magistrates Court, the appellant, who was then represented by counsel, clearly took no issue with the Tribunal’s reasoning process as to his refugee status.  In the circumstances of this case and where an appellant does not take issue with the determination of his refugee status when seeking judicial review, it is not available to him on appeal to claim that the learned Federal Magistrate erred by not considering the same.  That is particularly so where he was legally represented and accordingly had advice and assistance in the formulation of his grounds of review.

9                     Accordingly, by seeking to establish jurisdictional error on the part of the learned Federal Magistrate constituted by his alleged failure to deal with an aspect of the appellant’s judicial review application which was simply not raised nor put in issue, is an improper exercise given that the ground could easily have been raised in the Court below.  The learned Federal Magistrate was correct in his determination of the matters argued before him and it is only those matters which he is required to consider.

10                  In addition to the ground of appeal contained in the notice of appeal, the appellant has also filed an affidavit in these proceedings, sworn on 25 August 2006.  By paragraph 3 of that affidavit the appellant states:

His Honour erred in finding that the general attach (sic) on the appellant’s credit as an element of the failure to make a bona find (sic) consideration of the application.

11                  Given there is no finding or reasoning in the judgment of the learned Federal Magistrate which addresses issues of credit or bona fides, there is no basis for this claim.

12                  To the extent that it may be part of the appeal that the Tribunal failed to properly consider the application because of the appellant’s non-attendance, I do not consider that any proper basis for that argument to succeed can be established. 

13                  In M172 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 23 (‘M172 case’), Bryant CFM said the following, at [28]:

All the Australian authorities require some defect in the decision making process.  Re MIMIA; Ex Parte Lam (2003) HCA 6 where at para 105 McHugh and Gummow JJ said:

But the failure to meet that expectation does not reasonably found a case of denial of natural justice.  The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case.  The ends sought to be attained by the requirement of natural justice may be variously identified.  But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome.  It is with the decision-making process not the decision, as Lord Brightman put it (98).  What is delivered by the requirement of natural justice is the right to a hearing, a technical expression in law, before action is taken.

14                  Since that decision, both the Federal Magistrates Court and the Federal Court consider the view of the Chief Federal Magistrate in the M172 case to properly reflect the law: see, e.g. SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 per Bennett J at [13]-[15] and SZBBL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 834 per Tamberlin J at [8]-[10].  The Tribunal considered the material before it.  I can find no defect in the decision-making process itself.

15                  As far as procedural fairness, the appellant was given the opportunity to attend.  The rejection of the appellant’s case was an inevitable consequence of non-attendance: NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5].

16                  It does not matter that an appellant’s non-attendance is by reason of their own election or by no fault of their own.  In VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134, Sundberg and Hely JJ stated, at [16]:

Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole.  Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420.  The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant.  Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence.

17                  Similarly, in NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 at [9], [14] and [16] the Full Court was willing to accept that the appellant was not told of the hearing but even so found that that matter was of no legal relevance and did not constitute jurisdictional error.

18                  In B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 (‘B41 of 2003’), Dowsett J dealt with a similar situation to that of the present appellant.  There the appellant decided not to attend hearing after his migration agent advised him as to his likely prospects of success.  His Honour stated at [23]:

The Tribunal had tried to advise him of these matters in the correspondence.  Even accepting that he did not receive those letters, I cannot accept that he was unaware of the purpose of the hearing.  He asked the immigration adviser whether he could attend and clearly understood that it was the occasion for making submissions.  She did not tell him that he could not attend, but that there was no point in his so doing.  That was a matter for judgment.  He chose to act on this advice.  That he did not attend the hearing was a consequence of such choice.  There was no denial of procedural fairness.  See R v Home Secretary; Ex parte Al-Mehdawi [1990] 1 AC 876 at 895 and SBA Foods Pty Ltd v Victorian WorkCover Authority & Anor [2001] VSC 276 per Gillard J at [274-283].  See also Stefanovski v County Court of Victoria & Anor [2000] VSC 417 per Gillard J at [175-190].  A passage from the decision in Al-Mehdawi was cited with apparent approval by Gleeson CJ in Hot Holdings Pty Ltd v Creasy & Ors (2002) 210 CLR 438 at [22].  However the passage in question was not directly supportive of the outcome in Al-Mehdawi.  I also note that his Honour there observed that: ‘Procedural unfairness can occur without any personal fault on the part of the decision-maker.’

See also SZEYH v Minister for Immigration [2006] FCA 93 at [30]-[31] per Jacobsen J.

19                  Clearly, the appellant made a choice, of exactly the same kind described by Dowsett J in B41 of 2003.  It is not a case, such as that which confronted the Court in the M172 case where the appellant’s migration adviser responded on his behalf, contrary to instructions and declined the invitation.

20                  Finally, a number of factual matters were raised by the appellant before me, which have no relevance to the task I have to undertake for the purposes of the appeal.  Nothing said by the appellant before me indicates any jurisdictional error.

Conclusion

21                  On the basis of the above, I can find no jurisdictional error permitting this appeal to succeed.  Accordingly, I dismiss the appeal with costs.

Associate:

Dated:         15 November 2006