FEDERAL COURT OF AUSTRALIA

SZICS v Minister for Immigration & Multicultural Affairs [2006] FCA 1615

MIGRATION – appeal from Federal Magistrate’s decision to dismiss an application for review of Refugee Review Tribunal decision – non-attendance at Tribunal hearing – inadequacy of information was reason for Tribunal’s decision – no breach of s 424A(1) – whether additional evidence admissible in judicial review proceedings

Australian Retailers Association v Reserve Bank of Australia(2005) 148 FCR 446 considered

MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256 applied

SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 applied

SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 applied

SZICS v Minister for Immigration & Multicultural Affairs [2006] FMCA 1180 affirmed

Tran v Minister for Immigration & Multicultural Affairs [2002] FCA 1522 applied

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

NSD 1659 OF 2006

MIDDLETON J

14 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

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 9 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 24 November 2005 which was handed down on 13 December 2005.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs made on 6 August 2005 to refuse to grant a protection visa to the appellant.

procedural background and appellant’s claims

2                     The appellant is a citizen of the People’s Republic of China (‘China’) and arrived in Australia on 27 April 2005.  He applied for a protection visa on 4 May 2005.  The appellant claimed to have a well-founded fear of persecution because he is a member of an underground Catholic church.  He claimed that in 2004 he was arrested by the Chinese authorities, beaten and detained for eight days and that he had been released after paying a large sum of money.  The appellant further claimed that in March 2005 he learned that he would be in danger if he attended an upcoming ceremony at the church.

3                     The appellant did not appoint a migration agent in his dealings with the delegate.  On 6 August 2005 the delegate made a decision refusing to grant the appellant a protection visa.  The decision of the delegate was sent to the appellant at his nominated residential address.  It was apparently received by the appellant as he lodged an application for review by the Tribunal on 6 September 2005.

4                     The application for review in the Tribunal nominated the same address as the appellant’s residential address and a different mailing address as his address for service and correspondence.  The appellant did not appoint a migration agent in his application to the Tribunal.

5                     On 19 September 2005 the Tribunal wrote to the appellant, not to the mailing address he had specified on his application but to his residential address, informing him of the receipt of his application for review.

6                     On 11 October 2005 the Tribunal sent a letter to the mailing address specified on the application for review, stating that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in his favour on this information alone and the Tribunal invited the appellant to attend at a hearing on 7 November 2005.  However, this letter of invitation was returned to the Tribunal.  Instead, on 4 November 2005 the Tribunal wrote to the appellant at his new residential address notifying him that a letter sent to his mailing address was returned to the Tribunal and seeking confirmation of the appellant’s correct mailing address.  No reply was received from the appellant, nor was the letter returned.  On 7 November 2005, the appellant failed to appear at the hearing and the Tribunal proceeded to make a decision on the appellant’s application for review pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’).  

the tribunal’s decision

7                     The Tribunal found that the appellant’s claims remained untested and were unsupported by particulars that might enable the Tribunal to be satisfied that the claimed events ever occurred or that the appellant was a Roman Catholic.  As such, the Tribunal was unable to be satisfied that the appellant had a well-founded fear of persecution and affirmed the delegate’s decision.  The appellant appealed against this decision to the Federal Magistrates Court.

the federal magistrate’s decision

8                     Before the Federal Magistrate, the appellant claimed in his amended application of 12 May 2006 that the Tribunal had failed to carry out its statutory duty and that it had breached s 424A of the Act.  He also claimed that the Tribunal failed to exercise its discretion to hold a hearing and had fallen into jurisdictional error by not considering exercising its discretion under s 464A of the Act.  Before the Federal Magistrate, the appellant complained that he had provided his telephone number to his migration agent however that person did not provide the details in his application to the Tribunal.

9                     The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, found that the Tribunal’s decision was unaffected by jurisdictional error and was a privative clause decision.  It was the view of the Federal Magistrate that the Tribunal had considered evidence before it and was not satisfied due to the insufficiency of the material provided.  The Federal Magistrate stated that a lack of information is not information for the purposes of s 424A(1) of the Act.  As the Tribunal had not reached a decision to affirm or set aside the decision under review, therefore no obligations under s 424A of the Act arose.  His Honour held that the point of fixing a date for hearing was to obtain further information, particularly from the appellant, which may or may not result in affirming or setting aside the delegate’s decision.

10                  The Federal Magistrate held the view that s 424A obligations are not raised at this point and the appellant’s assertions misconceive the nature of the test in s 425 of the Act.  The Federal Magistrate further held that when the Tribunal considers that it cannot make a decision on the material before it, then the Tribunal must invite an applicant to provide better or more evidence or submissions; it is not information which the Tribunal will use to affirm the delegate’s decision and the obligation under s 424A(1) of the Act does not arise until the Tribunal is deciding whether or not to affirm the decision of the delegate.  Neither was the Tribunal obliged to exercise its discretion to defer its hearing.  In addition, his Honour held that the fact the appellant was unaware of the hearing was of no legal relevance, nor was the Tribunal required to take into account the fact that the letter inviting him to attend the hearing (sent to the mailing address specified on his application to the Tribunal) was returned.  Finally, the Federal Magistrate held that the Tribunal had not misunderstood its discretion and had made some efforts to contact the appellant by sending a second letter to his new residential address.  

grounds of appeal

11                  The notice of appeal raised the following grounds:

1.      That the Federal Magistrate failed to consider the appellant’s oral claims during the final hearing that he provided his contact number to his migration agent yet the Tribunal had failed to contact him by telephone.

2.      That the Federal Magistrate repeatedly ignored the appellant’s claims that the Tribunal had information falling within s 424A of the Act, of which the Tribunal failed to give particulars to the appellant, failed to explain why it was relevant and failed to give the appellant an opportunity to comment on it.

CONSIDERATION

12                  In relation to the first ground, his Honour does consider, at [34] of his decision, the complaint of the appellant that he had provided his telephone number to the migration agent.  His Honour considered that there was no substance in the complaint as the telephone number was not provided to the Tribunal.  As his Honour observed at [33] the Tribunal went to some effort to try to contact the appellant insofar as it was able to do so.  At no stage has the appellant nominated a migration agent to act on his behalf, before either the Tribunal or the delegate. 

13                  In relation to the second ground, I reject the appellant’s complaint that the Federal Magistrate failed to consider the appellant’s claims in relation to s 424A of the Act.  The Federal Magistrate did consider the appellant’s complaint that the Tribunal had failed to comply with s 424A and I can find no error in his Honour’s reasoning or conclusion.

14                  His Honour dismissed that claim and stated at [22]-[23] that he considered that no obligation arose under that section given that at the time that the Tribunal notified the appellant that it was unable to determine the review in his favour on the material before it, the Tribunal had not reached any view on whether the adequacy of the material submitted to the delegate would be part of the reason for its decision.  In support of his reasoning, his Honour indicated that he was bound to follow the decision of Heerey J in SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 at [38]-[43].

15                  The reason for his Honour’s focus upon whether the obligation under s 424A arose at the time that the Tribunal notified the appellant that it was unable to determine the review in his favour on the material before it was that this was how the appellant particularised the breach in his grounds in the amended application.  His Honour did not go on to consider whether there was a breach of s 424A at any other time. 

16                  It is clear from the Tribunal’s reasons for its decision that it found there was insufficient information to enable it to reach a level of satisfaction as to Australia’s obligations to the appellant.  The word ‘information’ in s 424A(1) imports at least some positive factual material and does not apply where the Tribunal has identified a lack of information: see SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 per Bennett J at [23]; MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256 per Heerey J at [14]; and Tran v The Minister for Immigration & Multicultural Affairs [2002] FCA 1522 per Kenny J at [25]-[26].  Therefore, it is clear that s 424A(1) was not enlivened at the time it invited the appellant to the hearing and the Tribunal was not required to give the appellant notice pursuant to that section. 

17                  In exercising its discretion under s 426A of the Act, the Tribunal clearly considered all of the circumstances relating to the invitation to appear at the hearing and the appellant’s failure to attend.  There is no evidence that the Tribunal misunderstood the discretion given to it under s 426A, and, having complied with the statutory requirements, the Tribunal was entitled to exercise its discretion under s 426A.

18                  One other matter needs to be noted.  Before me today the appellant indicated that there may be some other material which he would put in support of his application on the merits.  In my view, that is not a sufficient justification for remitting the matter back to the Tribunal and I am not able to receive that material in the circumstances of this case. 

19                  In an appropriate case it may well be permissible to tender evidence on review.  However, whether it is an appropriate case will depend upon the grounds of review and the circumstances of the case.  I refer to the judgment of Weinberg J in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 where at 564, [454] he stated:

I accept that, ordinarily, material not before the decision-maker at the time of the making of the decision will not be admissible in proceedings for judicial review.

20                  His Honour, after referring to comments of Lockhart J in Attorney-General for (NT) v Minister for Aboriginal Affairs ((1989) 23 FCR 536 at 539-540) and Sackville J in McCormack v Commissioner of Taxation ((2001) 114 FCR 574 at 587, [38]-[40]), explained the types of cases where it may be appropriate to admit such evidence (at 566, [457]-[459]):

It should be noted that neither Lockhart J nor Sackville J considered whether it would be open to a party seeking to affirm a decision impugned on the basis of Wednesbury unreasonableness to rely upon expert evidence, tendered to show that the decision was in fact entirely reasonable. In principle, albeit with some reluctance (having regard to the additional time and costs taken up with such evidence), I can see no reason why, in an appropriate case, such evidence should not be admitted.

Wednesbury unreasonableness is, in some respects, simply a variant of the ground that a decision-maker lacked jurisdiction to make the decision because jurisdiction was dependent on an actual state of facts that did not exist, or that the decision-maker based the decision on a finding of a particular fact that did not exist. If additional evidence is available, in cases reliant upon such grounds, there is no reason in principle why such evidence should not also be admissible where the ground is couched in terms of unreasonableness.

That is not to say that the tender of such evidence should be encouraged. Nor is there any basis for a conclusion that it can be admitted as of right. As Sackville J correctly observed, everything depends upon the grounds of review, and the circumstances of the case.

21                  This is not a situation where such additional material should be admitted.  Therefore I would not permit the material identified as going to the merits by the appellant to be tendered before me.

CONCLUSION

22                  I find no jurisdictional error in the Federal Magistrate’s decision and accordingly dismiss the appeal with costs.

Associate:

Dated:         24 November 2006