FEDERAL COURT OF AUSTRALIA

SZHYU v Minister for Immigration and Citizenship [2007] FCA 356

SZHYU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2086 OF 2006

BESANKO J

13 FEBRUARY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the respondent be amended from ‘Minister for Immigration and Multicultural Affairs’ to ‘Minister for Immigration and Citizenship’.

2.                  The Refugee Review Tribunal be joined as the second respondent to the appeal.

3.                  The appeal be dismissed.

4.                  The appellant pay the first respondent’s costs of the appeal.

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 from orders made by a Federal Magistrate. The appellant applied to the Federal Magistrates Court for constitutional writs in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Federal Magistrate dismissed the application. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, refusing to grant a protection visa to the appellant.

2                     The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 28 March 2005. On 20 April 2005 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (‘the Act’). On 5 August 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the appellant’s application for a protection visa. On 6 September 2005 the appellant applied to the Tribunal for a review of that decision.

3                     In his application for review the appellant gave his residential address in Australia. In the section of the application dealing with the sending of correspondence about the application, the appellant gave a mailing address.

4                     On 7 September 2005 the Tribunal wrote to the appellant at his mailing address and advised him that it had received his application for review. On 28 September 2005 the Tribunal wrote to the appellant at his mailing address and advised him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. He was invited to attend a hearing of the Tribunal on Monday 31 October 2005 and he was advised that the Tribunal would only change the hearing date for good reasons. He was advised that if he thought that he might be unable to attend the hearing he should contact the Tribunal immediately. He was advised that if he did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice.

5                     The appellant did not attend a hearing on 31 October 2005. The Tribunal member noted that the letter to the appellant was not returned unclaimed. He noted that, as the appellant had not provided the Tribunal with any telephone contact number, no other steps could be made to contact him. He noted that the appellant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. He said that, in those circumstances and pursuant to s 426A of the Act, he had decided to make his decision on the review without taking any further action to enable the appellant to appear before the Tribunal.

6                     The appellant’s case as stated in the material before the Tribunal was that he was a Falun Gong practitioner and that he started to practise that faith in 1996. His case was that in December 2002 he participated in a Falun Gong demonstration in Tianjin, which was broken up by the police. His case was that he was arrested and beaten and that he was subsequently hospitalised. His case was that the police removed him from hospital before he was ready to be discharged and beat him again. He said that he fell into a coma. He said that after he was released, he bribed a powerful official, obtained a passport and came to Australia.

7                     The Tribunal member accepted that the appellant is a citizen of China. He said that where broad allegations are made, the Tribunal hearing is an opportunity for the Tribunal to obtain details about the claims from the appellant. He noted the invitation to appear which had been given to the appellant, and he said that as a result of the appellant’s non-appearance a number of relevant questions have been left unanswered. He said that he would have wished to satisfy himself that the appellant is indeed, as claimed, a Falun Gong practitioner. He said that he would wish to find out why the appellant waited over two years after the claimed brush with the police to leave the country. He said that he would have wished to have found out if anything else had happened to the appellant, either before or since, as a result of his claimed practice of Falun Gong. The Tribunal member said that in the absence of an opportunity to satisfy himself on these matters, he was not satisfied that the appellant was a Falun Gong practitioner. He did not accept that the appellant was detained and beaten by the police as claimed or that there was a real chance of such a thing or any other harm amounting to persecution befalling the appellant should he return to China in the foreseeable future by reason of his religion, real or imputed political opinion, or any other Convention reason. The Tribunal member found that the appellant did not have a well-founded fear of persecution in China for a Convention reason.

8                     As I have said, the appellant issued an application for constitutional writs in the Federal Magistrates Court. That was done in December 2005. There were two grounds upon which the appellant sought relief. First, he alleged that the Tribunal had failed to comply with s 424A(1) of the Migration Act. That section requires the Tribunal to give to an applicant ‘particulars of any information the Tribunal considers would be the reason or part of the reason, for affirming the decision that is under review’. The appellant alleged that the Tribunal member failed to invite him to comment on the member’s statement that he would have wished to have known why the appellant waited over two years after the claimed brush with the police to leave the country. Secondly, the appellant alleged that he had not been invited to appear before the Tribunal as required by s 425 of the Act. The appellant alleged that he was unaware of the invitation the Tribunal said that it had extended to him by letter dated 28 September 2005. The Magistrate rejected both grounds of challenge.

9                     The grounds of appeal to this Court are as follows:

‘1.        The appellant contended in the FMC that the Tribunal failed to invite the applicant to comment on information would be the reason, or a part of the reason, for affirming the decision that is under review. The appellant contended that by failing to do so the Tribunal breached the section 424A(1) of the Migration Act 1958. The FMC failed to deal with this claim properly.

2.         The FMC failed to consider that appellant’s explanation of his non-appearance at the Tribunal’s hearing was due to his migration agent’s fault. The appellant was unaware of such hearing invitation at the Tribunal.’

10                  As to the first ground of appeal, the Magistrate said that the reason for the Tribunal’s decision was that, having read the limited material before it, it was unable to reach the required mental state of satisfaction that the appellant satisfied the criteria for the visa for which he applied, in particular, as required by ss 36 and 65 of the Act. The Magistrate said that the authorities establish that s 424A is not engaged in those circumstances. She referred to SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 and SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 492.

11                  I have read the Tribunal’s reasons and I think the Magistrate’s conclusion is correct. In those circumstances, the first ground of appeal must fail.

12                  As to the second ground of appeal, the Magistrate had before her an affidavit of Mr Jonathan Christian Willoughby-Thomas sworn on 3 October 2006. Mr Willoughby-Thomas is the District Registrar at the Sydney Registry of the Refugee Review Tribunal. She also had before her an affidavit from the appellant which stated that he did not receive an invitation to appear from the Tribunal. The Magistrate noted that the appellant was not cross-examined on his affidavit, and she proceeded on the basis that he had not received the invitation from the Tribunal. However, on the basis of the evidence of Mr Willoughby-Thomas, the Magistrate was satisfied that the Tribunal had complied with its obligations under the Act. Section 425A provides that the notice of invitation to appear must be given to the applicant by one of the methods specified in s 441A, and s 441C contains deemed receipt provisions. The Magistrate held that the Tribunal had complied with the provisions of the Act and it was entitled to proceed under s 426A of the Act to make a decision without taking further action to allow or enable the applicant to appear before it. She said:

‘No failure to comply with section 425 of the Migration Act has been established. The applicant is deemed to have received the invitation even if he did not in fact receive it. The Tribunal met its obligations under the Migration Act to invite the applicant to a hearing.’

13                  The Magistrate rejected the second ground of challenge. I do not think that she erred in doing so, and the second ground of appeal must fail.

14                  The Magistrate said that she could not otherwise detect jurisdictional error in the decision of the Tribunal, and in those circumstances she decided that the application must be dismissed.

15                  There is no error in the reasoning of the Magistrate, and the appeal to this Court must be dismissed.

Associate:

Dated:         14 March 2007