FEDERAL COURT OF AUSTRALIA

SZIQC v Minister for Immigration & Citizenship [2007] FCA 522

SZIQC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2422 OF 2006

BENNETT J

9 MARCH 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the first respondent is changed from the ‘Minister for Immigration & Multicultural Affairs’ to the ‘Minister for Immigration and Citizenship’.

2.                  Leave to appeal is granted. 

3.                  Leave to rely on new grounds of appeal is refused.

4.                  The appeal is dismissed.

5.                  The appellant is to pay the first respondent’s costs.

6.                  Leave is granted to the first respondent to file and serve any affidavit in support of an application for fixed costs within 7 days.

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

REASONS FOR JUDGMENT

1                     The appellant, who claims to be a citizen of the People's Republic of China, applied for a protection (class XA) visa in March 2000.  A Delegate of the Minister refused to grant that visa and the appellant applied to the Refugee Review Tribunal for review of the Delegate's decision.  An invitation to attend a hearing scheduled for 27 February 2001 was sent by registered post to the appellant’s nominated contact address and to his migration adviser by the Tribunal.  Receipt of that invitation is not disputed.  The appellant responded to the invitation in a document signed by him (‘the response’).  In answer to the question ‘do you want to come to a hearing’ the appellant marked the box “No”.  That box also contained a statement:

            ‘I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.’

2                     The appellant asserts in this appeal from the Federal Magistrates Court that the Tribunal committed jurisdictional error by failing to reschedule the hearing or delay its decision in order to enable the appellant to appear before it. 

The Tribunal Decision

3                     In its reasons the Tribunal set out the claims and evidence before it.  The Tribunal noted that the appellant had advised it in writing that he did not wish to give oral evidence and that he wanted the Tribunal to proceed to make a decision “on the papers”.  The Tribunal proceeded to do so, as it was entitled to under s 426A of the Migration Act 1958 (Cth) (‘the Act’).  The Tribunal concluded that the appellant's evidence was ‘very unsatisfactory’.  It noted that ‘he makes general claims, and without being able to clarify certain matters, [the Tribunal is] not disposed to attach credibility to his claims’. 

4                     The Tribunal then gave examples of the additional information that it would have sought in order to be satisfied as to the credibility of the appellant's claims.  The Tribunal concluded that without at least that information it was not satisfied on the basis of the evidence before it that the appellant had a well-founded fear of persecution for a Convention reason in China or in Hong Kong.  The Tribunal referred to Hong Kong in addition to China as the appellant asserted that he had obtained a Hong Kong British passport which was not in his own name and that he had felt unsafe in Hong Kong while spending time there before coming to Australia from China.

The Federal Magistrates Court

5                     The appellant applied to the Federal Magistrates Court for orders to show cause why a remedy should not be granted in respect of the Tribunal’s decision in the exercise of that court’s jurisdiction under s 476 of the Act.  In that application, as in his appeal to this Court, the appellant appeared in person assisted by an interpreter.  Federal Magistrate Smith recorded that, in an unsworn statement and without prompting, the appellant told his Honour that his migration agent had suggested to him that it was not necessary to attend the Tribunal hearing.  That statement confirmed a finding that his Honour said that he would have made on the evidence in any event, namely, that the appellant had authorised his agent to notify the Tribunal that he did not wish to attend the hearing (SZIQC v Minister for Immigration & Anor [2006] FMCA 1886 at [12]).  His Honour proceeded to consider the grounds of the appellant's application, which asserted, in broad terms, jurisdictional error by reason of an improper and unreasonable basis for the Tribunal's decision, lack of evidential support for the Tribunal’s conclusion and a failure by the Tribunal to comply with s 424A of the Act (at [17]).

6                     Federal Magistrate Smith noted that no particulars had been given with respect to the first two grounds (at [18]).  His Honour concluded the Tribunal’s reasoning was entirely reasonable, that it did not consider irrelevant matters and, in fact, made no reference to independent country information, the latter being referred to as one of the evidential difficulties asserted by the appellant (at [18]).  His Honour also stated that he could see no arguable failure by the Tribunal to comply with s 424A(1) of the Act as the Tribunal’s conclusion was based upon ‘the manifest insufficiency of the claims presented by [the appellant]’ (SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 per Allsop J). 

7                     His Honour concluded that no jurisdictional error had been established and, accordingly, that the application should be dismissed.  His Honour stated that he would also dismiss the application as incompetent by operation of the time limit prescribed by s 477 of the Act (at [29]). 

The appeal to this Court

8                     It is not clear from Smith FM’s decision whether his Honour dismissed the application pursuant to r 44.12(1)(a) or (c) of the Federal Magistrates Court Rules 2001 (Cth).  Further, there are different views in this Court as to whether a decision is final or interlocutory where a Federal Magistrate finds an application incompetent for failure to comply with s 477 of the Act yet also dismisses the application “on the merits” (SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 227 ALR 683 at [68] –[69]).  The Minister has, however, proceeded on the basis that this is an appeal from a final decision.

9                     The Minister points out that the grounds in the notice of appeal and the subject of the appellant’s written submissions relating to the Tribunal decision were not relied upon before the Federal Magistrate.  It follows that, in any event, leave to agitate those grounds is required.  I will turn to consider whether the new grounds raised by the appellant have any prospect of success. 

10                  The appellant relies, in summary, on the following grounds of appeal:

1.                  Error of law in the Tribunal's decision constituting a jurisdictional error.  No particulars are given.

2.                  A constructive failure on the part of the Tribunal to exercise its jurisdiction.  No particulars are given.

3.                  A failure by the Tribunal to consider rescheduling the hearing before it or to delay its decision in order to enable the appellant’s appearance.

4.                  A failure to comply with ss 425(1) and 426A of the Act.  No particulars are given.

5.                  A reference to s 426 of the Act.  This seems to be based upon the alleged failure on the part of the Tribunal to defer a decision without taking further action to enable the appellant to appear before it.

6.                  ‘Regarding to other issues raised from Tribunal’s decision, it is obviously ill-founded without any substantial evidences excepting its erroneous findings based’ (sic).

11                  The first and second grounds as stated do not support a finding of jurisdictional error.  No particulars were provided and the appellant has been unable to give further details at this hearing.  No basis has been given as to why the Tribunal was not entitled to proceed to determine the application before it pursuant to s 426A of the Act.  Accordingly, grounds 3, 4 and 5 do not establish jurisdictional error.  To the extent that ground 6 seeks merits review that is not a matter within the jurisdiction of this Court.  The Tribunal gave reasons for its decision, referring to the appellant’s evidence and its inability to find a well-founded fear of persecution for a Convention reason on the basis of that evidence.  It follows that the grounds set out in the appellant’s notice of appeal have no prospect of success. 

12                  Further “grounds of appeal” are set out in the appellant’s written submissions.  The first is an assertion that there was material that was ignored.  It is not clear whether that is said to be an error on the part of the Federal Magistrate or the Tribunal.  No particulars are given and the appellant was unable to point to any particular fact or evidence that was ignored by the Tribunal or his Honour.  By reference to the matters considered by the Tribunal I have not seen any material that was not taken into account.  Smith FM has, on my reading of his Honour’s decision, given full consideration to the matters raised by the appellant before him. 

13                  The written submissions repeat the asserted failure to comply with ss 425(1) and 426A of the Act.  Under the heading “particulars” the appellant alleges that the Tribunal was obliged to take action to allow or enable the appellant to appear before it by rescheduling the hearing or delaying its decision.  Further detail is not provided.  As I have stated, the Tribunal complied with its obligation under s 425 of the Act to invite the appellant to a hearing.  The appellant advised the Tribunal that he did not wish to attend the hearing and the Tribunal was entitled pursuant to s 426A of the Act to proceed to a decision without providing the appellant with a further opportunity to appear before it.  There is no evidence that the appellant had requested a postponement or any other evidence that would have alerted the Tribunal to any desire on the part of the appellant to attend a hearing.  No jurisdictional error is apparent in the approach of the Tribunal. 

14                  The third ground in the written submission is that Smith FM failed:

            ‘to consideration the first respondent did not seek to cross‑examine the applicant further.’ (sic)

15                  This seems to be a reference to [4] of his Honour’s reasons.  His Honour there referred to the fact that the appellant had not taken the opportunity to file any further material and had made unsworn statements from the bar table.  His Honour noted that the Minister’s representative did not request further sworn evidence from the appellant and did not seek to cross-examine him.  His Honour concluded (at [4]):

            ‘In those circumstances, and for reasons which I shall indicate, I am able to decide the case by accepting the truth of the factual statements made today by [the appellant] from the bar table.’

16                  That is, his Honour did not reject the matters put by the appellant but accepted them.  It was a matter for the Minister as to whether or not he wished to test those matters in cross-examination.  In the absence of such cross-examination his Honour was entitled to and did accept the appellant's factual statements. 

17                  The final ground set out in the written submission is that Federal Magistrate Smith failed:

            ‘to consider the migration agent to act the applicant on his behalf in preparing application for the review that decision effect if decision by RRT.’ (sic)

18                  It is not precisely clear what is meant by this ground.  Smith FM did make reference to the appellant's migration adviser.  His Honour referred at [6] to the fact that the appellant had authorised his adviser to act on his behalf and had requested that correspondence be sent to that adviser as well as to himself.  At [12] his Honour noted that the appellant had asserted previously that he did not recall being told by his agent that he had been invited to a hearing, but affirmed, at the hearing before his Honour, that the agent had suggested to him that it was not necessary to attend the Tribunal hearing.

19                  That was relevant to his Honour’s conclusions as to the absence of appearance before the Tribunal and the response.  There is no suggestion that the signature on the response was not that of the appellant.  The appellant has confirmed at the hearing of this appeal that it was his signature.  The appellant has made further references to the advice given to him by his migration agent that there was no need to attend the hearing.  However, there is no suggestion that any concern about the adequacy of that advice or the advice itself was conveyed to the Tribunal.

20                  No error on the part of Smith FM or jurisdictional error on the part of the Tribunal has been established in relation to the actions of the migration agent.

Conclusion

21                  There is no arguable ground of appeal.  It follows that if leave to appeal were required because the decision of the Federal Magistrate was interlocutory, I would refuse leave.  However, as the Minister has, by treating this as an appeal consented, in effect, to leave being granted, to the extent that leave is required, I grant leave to appeal.

22                  The new grounds of appeal, which were not raised before the Federal Magistrate, do not have any prospect of success.  Leave to rely upon these grounds should be refused. 

23                  The appellant has failed to demonstrate jurisdictional error on the part of the Tribunal.  The appellant has not succeeded in showing error on the part of the Federal Magistrate.  The appeal must be dismissed.  The appellant should pay the first respondent’s costs. 

Associate:

Dated:         16 April 2007

The appellant appeared in person.