FEDERAL COURT OF AUSTRALIA

SZHMK v Minister for Immigration & Citizenship [2007] FCA 282

Migration Act 1958 (Cth) - ss 424A, 424A(3)(b), 426A 

SZHMK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD1909 OF 2006

EMMETT J

16 FEBRUARY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the First Respondent be changed to Minister for Immigration and Citizenship.

2.                  The Refugee Review Tribunal be joined as a Respondent.

3.                  The appeal be dismissed.

4.                  The Appellant pay the First Respondent’s costs in the sum of $1700.00.

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

REASONS FOR JUDGMENT

1                     The appellant claims to be a citizen of the Peoples Republic of China.  He arrived in Australia on 24 February 2005.  On 17 March 2005, he lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act).  On 8 April 2005, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant a protection visa and on 11 May 2005, the appellant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of that decision.  On 7 September 2005, the Tribunal affirmed the decision not to grant a protection visa.  The appellant was notified of that decision on 29 September 2005. 

2                     The appellant commenced a proceeding in the Federal Magistrates Court for judicial review of the Tribunal’s decision.  An amended application was filed on 30 March 2006.  On 14 September 2006, the Federal Magistrates Court ordered that the appellant’s application be dismissed with costs.  On 28 September 2006, the appellant filed notice of appeal to the Federal Court form the orders of the Federal Magistrates Court.

3                     The Tribunal recorded in its reasons that on 26 July 2005 it wrote to the appellant advising him that it had considered all of the material before it relating to his application, but was unable to make a favourable decision on that information alone.  The Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 7 September 2005.  The appellant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  No response was received and the Tribunal’s letter was not returned unclaimed.  The appellant did not appear before the Tribunal at the time appointed.  The Tribunal therefore decided to make its decision on the review without taking any further action to enable the appellant to appear before it. 

4                     The Tribunal considered that the appellant’s claims were vague and lacking in crucial details.  Apart from his own brief assertions, he provided no evidence that he was ever a Falun Gong practitioner as he claimed in his protection visa application.  He claimed that he was detained and tortured by police for almost three months, but did not state when, in the years since Falun Gong was banned in 1999, that had occurred.  Apart from saying that he was employed, he provided no information about his personal circumstances in the period leading to his departure from China.  The Tribunal considered that the appellant had provided so little information about those circumstances that it was unable to establish any relevant facts.  The Tribunal was therefore not satisfied, on the evidence before it, that the appellant has a well founded fear of persecution within the meaning of the Refugees Convention.

5                     In his amended application of 30 March 2006, the appellant relied upon two grounds.  The first ground was a formulaic assertion of failure to comply with s 424A of the Act.  The primary judge dealt with that ground briefly.  The Tribunal decision was not based on any particular information, rather upon a lack of information.  As his Honour observed, there is no obligation on the Tribunal to give particulars of an insufficiency of information.  The reason for the Tribunal’s decision was simply the lack of detail in the appellant’s claims and his failure to attend a hearing before the Tribunal.  Where an applicant does not appear at a Tribunal hearing and does not submit any new claims to the Tribunal, his Honour considered that the applicant must be taken to be relying upon his protection visa claims before the Tribunal; that would bring the claims within s 424A(3)(b). 

6                     Whether or not that proposition is correct, the Tribunal can only deal with claims that are made.  Where the Tribunal does no more than reject claims by reason of lack of material to support them, it could not be said that the claims constitute part of the reason for affirming a delegate’s decision to refuse to grant a protection visa.   The reason for the decision is not the making of the claims in the original protection visa, but the lack of material to support any claims.  There was no error on the part of the primary judge in rejecting the first ground.

7                     The second ground, which was dealt with at greater length by the primary judge, was as follows:

“I was not invited for a haring [sic] by RRT.  I appointed a Migration Agent to look after my application for a protection visa.  He told me he was the authorized recipient, he received all correspondence on behalf of me. I did not know that he did not put his name as a Migration Agent for me on the form.  He put his postal address as mine and received all letters for me.  However, he did not inform me for the hearing, and I did not know whether he did receive the invitation letter for the hearing.  In all he was the one who received all the letters for me , not me, you could check the records, but no migration agent or authorized recipient mentioned at my application form.  I was cheated and should be given another opportunity to appear at a hearing at RRT, or I should be informed in writing the particulars of the information that was the reason, or part of the reason for affirming the decision according to s.424A of the Act 1958.  My application should be reconsidered at RRT.”

The second ground was not supported by any evidence adduced by the appellant, notwithstanding that, on 6 December 2005, the Federal Magistrates Court had directed that all evidence should be presented by way of affidavit.  No affidavit evidence was filed.  The only material before the primary judge was the Court Book prepared by the Minister containing the relevant documents before the Tribunal. 

8                     Those documents included the appellant’s application to the Tribunal for review of the delegate’s decision (the Review Application). The Review Application was signed by the appellant.  However, he asserted to the primary judge, apparently from the bar table, that the Review Application form was blank when he signed it.  He told the primary judge that he instructed a migration agent to lodge the Review Application on his behalf. 

9                     The Review Application contained spaces for completion of information of various kinds.  The space for the applicant’s residential address in Australia was completed with a Sydney suburban address.  The space for a mailing address was completed with the following particulars:

6/460 Pitt Street, Sydney,

New South Wales, 2000

The appellant told the primary judge that he did not know that address.  However, that is the address to which the Tribunal sent its invitation to the appellant to attend a hearing.  The appellant told the primary judge that he did not receive that invitation.

10                  However, even if the statements made by the appellant to the primary judge were accepted as evidence of their truth, that would not constitute a basis for concluding that the Tribunal denied procedural fairness to the appellant.  The Tribunal attempted to communicate with the appellant at the address provided to the Tribunal with the authority of the appellant.  If it be the fact that the appellant was deceived by a person who was a migration agent or who purported to be a migration agent, that had nothing to do with the Tribunal.  It was not suggested that the Tribunal was aware of such facts.  The appellant conceded before the primary judge that the Tribunal was not at fault in the manner in which it proceeded. 

11                  The primary judge considered that the Tribunal was entitled, pursuant to s 426A of the Act, to proceed in the absence of the appellant.  His Honour considered that there was no jurisdictional error by reason of the appellant’s agent failing to tell the appellant about a hearing.  His Honour concluded that the decision of the Tribunal was free from any jurisdictional error.  There was no error on the part of the primary judge in reaching that conclusion. 

12                  The grounds of appeal in the notice of appeal filed on 28 September 2006 are as follows:

“2.       I was not given an opportunity to explain my case.  I did not receive the invitation for the hearing mentioned at the decision letter from RRT.

3.         The Tribunal failed to carry out its statutory duty.  The Tribunal did not notify me the reason or part of the reason for affirming the decision.  I therefore lost the opportunity to comment on it.

4.         My application for review at Federal Magistrates court was not considered thoroughly at Federal Magistrates court.

4.         The Tribunal did not consider my application according to S91R and S424A of the Mgiration [sic] Act.”

13                  At the hearing of the appeal the appellant appeared in person assisted by an interpreter.  He did not provide written submissions.  His oral submissions indicated a lack of comprehension of the process he had initiated.  He asserted that he had not been given notice of the hearing by the Tribunal and said that the Tribunal should not have deprived him of the opportunity to explain his claims, in circumstances where he did not understand the legal process.  He made no attempt to support the grounds that I have just articulated. 

14                  I do not consider that there was any error on the part of the Federal Magistrates Court.  It follows the appeal must be dismissed with costs. 

Associate:

Dated:         6 March 2007