FEDERAL COURT OF AUSTRALIA

SZIVL v Minister for Immigration & Multicultural Affairs [2006] FCA 1800

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

NSD 1796 OF 2006

CONTI J

21 DECEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

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

2.                  The application for leave to appeal be dismissed.

3.                  The applicant to pay the first respondent’s costs of the application. 

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal out of time from the judgment of Federal MagistrateDriver, given on 21 August 2006, whereby his Honour dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 31 March 2006 to refuse the grant of a protection visa to the applicant.  The present application for leave was filed in Court on 18 September 2006. 

2                     The applicant claims to be a citizen of the People’s Republic of China, and claims to harbour a fear of persecution by reason of her religion.  The applicant asserted in that regard her membership since March 2005 ofthe Hu Han Pai, an underground Christian group whereof her husband was also said to be a member.  Her claims involved persecution by the Chinese government and the local police, and in that context the arrest of other Hu Han Pai practitioners, and the visitation of her home almost everyday by police, prior to her journeying to Australia, in their search for her husband’s whereabouts.  The applicant claimed that her husband had departed for Australia after local police found out about his membership of the Hu Han Pai. 

3                     On 3 March 2006 the Tribunal sent the applicant an invitation to attend a hearing of her application to review the decision of the Minister’s delegate, made on 23 January 2006, to refuse to grant her a protection visa.  On 30 March 2006, being the day before the hearing, the Tribunal received a facsimile from the applicant seeking postponement of her review application due to what she asserted to be a medical problem.  On 31 March 2006, the Tribunal proceeded nevertheless to make a decision in the absence of the applicant. 

4                     The Tribunal’s reasons for decision adversely to the applicant were that the applicant had not explained the nature of the ‘medical problem’ or provided any medical evidence in support of her claim in the adjournment request, and moreover that the applicant had not provided telephone contact details for the Tribunal to clarify any adjournment issues.  Furthermore, the Tribunal was not satisfied that if the hearing was to be postponed, the applicant would attend in any event. 

5                     The Tribunal found moreover that the applicant’s evidentiary details and assertions provided to the Minister were vague and lacking in detail.  For instance, no details were provided as to the applicant’s religious activities or those of her husband, and in any event that in the applicant’s absence from the Tribunal, her claims remained untested.  The Tribunal was not satisfied on the evidence, such as it was, that either the applicant or her husband was ever a member of Hu Han Pai or involved in any related activities, and consequently it was not satisfied the applicant had any well-founded fear of persecution.

6                     On 12 May 2006, the applicant made application to the Federal Magistrates Court for review of the Tribunal’s decision.  The Federal Magistrate dismissed the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) upon the footing that no arguable case for the relief claimed was raised.  His Honour found in that context that the Tribunal had fulfilled its obligations arising under s 425 of the Migration Act 1958 (Cth) (‘the Act’), and in particular that the applicant had duly received an invitation to the hearing.  His Honour read the medical certificate tendered to the Court, and pointed out that the applicant had sought medical attention subsequent to the Tribunal hearing, and that on the available material, the Tribunal had properly exercised its discretion to proceed to a hearing pursuant to s 426A of the Act, and further that the Tribunal was entitled to conclude in particular that the assertion of an unspecified medical illness was insufficient reason to grant a postponement of the scheduled Tribunal proceedings.

7                     In support of the present application for leave to appeal, the applicant provided to the Court an affidavit and a draft notice of appeal in which the applicant claimed that the Federal Magistrates Court repeatedly ignored the applicant’s claims that she had a medical problem which resulted in her non-attendance at the Tribunal hearing, and further that there had been a denial of natural justice by the Tribunal on that account, and further again that the Federal Magistrate failed to deal with the applicant’s claims fairly. 

8                     The Minister opposed the application for leave to appeal on the basis that the applicant’s proposed grounds of appeal were ‘plainly untenable’, and opposed the application for extension of time to file and serve an application for leave to appeal on the sole basis that it would be futile to extend the time for the making of an application that has no prospects of success. The Minister conceded that an explanation for delay had been offered by the applicant and that the Minister had not been prejudiced by that delay as it only constituted a number of days.  

9                     The Minister submitted that in ‘circumstances where the Tribunal’s lack of awareness flows from an applicant’s failure to provide sufficient information to the Tribunal, there is no failure to comply with s 425’ of the Act. In support of that proposition, the Minister referred to the  Full Federal Court decision of NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [36], where Ryan, French and Nicholson JJ (so far as is materially relevant) observed as follows:

  …If, as a matter of fact, the appellant had been unfit to participate in the hearing, the Tribunal’s lack of awareness of that fact flowed from the appellant’s failure to respond to its reasonable request for further support for the adjournment. Such protection as is offered by s 425 and by the requirements of procedural fairness was not thereby vitiated...

The Minister further submitted that ‘in this particular case...presuming that the applicant was unfit to participate in a hearing, …there is simply no evidence of that other than the assertions by the applicant…[and] it is her failure to provide sufficient information to the Tribunal to demonstrate that fact which caused the Tribunal to form the view that there was no basis for the hearing to be adjourned’.

10                  At the hearing of the present proceedings before the Federal Court, the applicant once more asserted her sickness with fever at the time of the Tribunal hearing, and otherwise her case in broad outline advanced to the Tribunal and the Federal Magistrates Court.  However the applicant was unable to distil any error in approach and reasoning by the Federal Magistrate.

11                  I can find no error in the Tribunal’s decision or that of the Federal Magistrate below. Whilst I reiterate Federal Magistrate Driver’s observation that the circumstances as they now appear, with the benefit of hindsight, are unfortunate, I find that there is no prospect of success on the appeal sought by the applicant.  The grant of leave to appeal would be plainly futile.

12                    The appeal must be dismissed. I also make an order, nunc pro tunc, that the Refugee Review Tribunal, which was a party to the proceedings below, be joined as a respondent to the application.

Associate:

Dated:         21 December 2006