FEDERAL COURT OF AUSTRALIA

SZJIP v Minister for Immigration & Multicultural Affairs [2007] FCA 694

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

NSD 328 OF 2007

EDMONDS J

11 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from the Federal Magistrates Court (Emmett FM) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) refusing an application for a protection (class XA) visa.

2                     The appellant, who claims to be a citizen of Pakistan, arrived in Australia on 25 January 2006 and lodged an application for a protection visa on 9 March 2006.  A delegate of the Minister refused the application on 22 May 2006.  On 16 June 2006 the appellant applied to the Tribunal for a review of that decision. 

The Appellant’s Claims

3                     In his protectionvisa application the appellant claimed that he feared persecution by the ruling party in Pakistan, the Pakistan Muslim League (‘the PML’), during the ruling period of Nawaz Sharif by reason of his membership and political activism with the Pakistan People’s Party (‘the PPP’).  The appellant claimed to have organised protests against the PML and to have been invited to participate in processions in other cities.

4                     The appellant claimed that, in November 2005, he organised a large procession in Sargodha and was subsequently arrested in December 2005 and beaten by police on the orders of local authorities.  The appellant claimed that workers from the PML also beat him at his home, causing him and his family to leave his home.  The appellant claimed that when he reported these incidents to the police he was not given protection, as a consequence of which he went into hiding.  The appellant claimed that he feared being killed by members of the PML. 

In the Tribunal

5                     The appellant provided no further information in writing to the Tribunal.

6                     On 28 June 2006 the appellant was sent an invitation to a hearing scheduled for 4 August 2006 to the address for correspondence nominated by the appellant in his application for review.  The Tribunal did not receive any response to this invitation.

7                     On 31 July 2006 an officer of the Tribunal called the appellant on the mobile telephone number nominated by the appellant in his application for review.  The appellant stated that he had not received the invitation but that he wished to attend the hearing.  He confirmed that the address to which the letter had been sent was the correct address.  The Tribunal officer undertook to ring him back in a few minutes to tell him if the Tribunal member intended to go ahead with the hearing on 4 August 2006.  The Tribunal officer called the appellant back on three occasions but the mobile phone was switched off.  The officer left her telephone number.  On 1 August 2006 an officer of the Tribunal posted a copy of its letter of invitation to the appellant’s address by express post.  There was no response from the appellant and the appellant did not attend the Tribunal hearing.

8                     Pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’), the Tribunal decided to make its decision on the review without taking any further action to enable the appellant to appear before it.

9                     The Tribunal concluded that the appellant provided too little information about himself to enable the Tribunal to establish the relevant facts.  He produced no documentary evidence to attest to his claimed activities as a political activist and office holder in an established political party.  He provided scant details about the protests and other activities he organised.  He provided no evidence that he was assaulted on any of the three occasions to which he referred.  It would have been reasonable to expect some medical evidence to be submitted in support of these claims.  He provided no information as to where his family fled or how and where he was assaulted again.  The Tribunal was not satisfied, on the limited evidence before it, that the appellant had a well-founded fear of persecution within the meaning of the Refugees Convention.

In the Court below

10                  The appellant sought, and was granted, leave to rely upon an amended application for review filed in court on the day of the hearing.  The amended application asserted that the Tribunal denied the appellant procedural fairness and/or natural justice in connection with the invitation to the hearing.

11                  The appellant did not dispute the facts as summarised in the Tribunal decision.  He stated that the last communication he had with any person from the Tribunal was on 31 July 2006 and that he had made no effort to contact the Tribunal since 31 July 2006.  He stated that he received a copy of the invitation to the hearing on 4 August 2006, being the day of the hearing.  He claimed that he did not call the Tribunal on 4 August 2006 or subsequently because he did not have the Tribunal’s telephone number.  However, the telephone number was on the footer of the copy invitation that he received.

12                  Her Honour found that this ground was not made out.  Her Honour found that the Tribunal was entitled to exercise its discretion to proceed under s 426A of the Act on the basis that the invitation dated 28 June 2006 complied with the statutory regime that applied to such invitations.

13                  Her Honour observed that it was the inadequacy of the information provided by the appellant to the Tribunal that was the reason for the Tribunal not being satisfied that the appellant had a well-founded fear of persecution within the meaning of the Convention.  In making this observation, her Honour noted that s 65 of the Act mandates that it is for an applicant to satisfy a decision-maker, in this case the Tribunal, that he meets the criteria for refugee status.  If the decision-maker is not satisfied that the criteria are met, the decision-maker must refuse a protection visa (s 65(1)(b) of the Act).

14                  In the result, her Honour concluded that:

(i)                  The conclusions of the Tribunal were open to it on the material before it and for the reasons it gave. 

(ii)                The Tribunal conducted its review and made its decision in accordance with its legislative obligations and its decision was otherwise unaffected by error. 

(iii)               In the circumstances, the Tribunal’s decision was a privative clause decision and, accordingly, pursuant to s 474 of the Act, the Federal Magistrates Court had no jurisdiction to interfere. 

The Appeal to this Court

15                  The appeal was listed for hearing on Thursday, 10 May 2007.  Both parties were notified by the Court of this listing by letter dated 5 April 2007 and, in the case of the appellant, the letter was sent to his recorded address for service.  When the matter was first called for hearing, there was no appearance by or on behalf of the appellant.  The Minister appeared by his instructing solicitor and counsel.  I stood the matter down for thirty minutes during which time Court registry staff attempted to telephone the appellant on his mobile phone.  However, the phone was switched off.  The matter was called again on resumption and again there was no appearance by or on behalf of the appellant.

16                  The Minister’s counsel made no oral submissions, content to rely on the submissions contained in the written outline filed on behalf of the Minister.

17                  The appellant’s notice of appeal raises three grounds:

1.                  That the appellant did not receive the hearing invitation pursuant to reg 4.35D of the Migration Regulations 1994 (‘the Regulations’).

2.                  That the Tribunal failed to comply with the mandatory requirements under the Regulations and the Act.

3.                  That the Federal Magistrate did not consider the Tribunal’s failure to comply with the mandatory requirements under the Regulations and the Act.

18                  In respect of these grounds, the Minister submits that the judgment of Emmett FM is not vitiated by error and the findings made by Her Honour were open on the evidence and based on the prevailing state of the authorities that have relevantly considered ss 422B, 425, 425A, 426A, 441A and 441C of the Act and reg 4.35D of the Regulations.

19                  Specifically, the Minister submits:

(a)                The Tribunal invited the appellant to the Tribunal hearing in accordance with s 425A.  In particular:

(i)                  The invitation dated 28 June 2006 gave the appellant notice of the day, time and place of the hearing before the Tribunal.

(ii)                The invitation contained a statement of the effect of s 426A.

(iii)               The invitation was dispatched, on the same day as the date of the invitation, by prepaid post to the last address for service provided to the Tribunal by the appellant in connection with the review.

(iv)              The period of notice given by the Tribunal was more than that prescribed by reg 4.35D.  Regulation 4.35D required 14 days notice after the date of receipt, such receipt being deemed by s 441C(4)(a) to be 7 working days after the date of the invitation.  The invitation was dated 28 June 2006 and the hearing was on 4 August 2006.  No error arose based merely on the appellant’s failure to receive the notice of invitation to hearing: NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 at [16].  The fact of non-receipt is of no legal relevance: SBSC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 77 at [16].

(b)               Having complied with s 425A such compliance was sufficient for compliance with s 425: VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14].

(c)                Further, having complied with the ‘procedural code’ provided for in s 425A and 441A the Tribunal had no further obligations of procedural fairness at common law in respect of that invitation: s 422B; Minister of Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214 and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62; SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 at [17]; Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39].  Nevertheless, the Tribunal called the appellant four times and sent a further copy of the invitation to clarify any misapprehension that the appellant may have had as to the scheduled hearing.

(d)               Having invited the appellant to the Tribunal hearing, the Tribunal was entitled to proceed to determine the matter under s 426A when he did not attend.  There is no evidence that the Tribunal’s exercise of discretion in that respect miscarried.  The Tribunal’s exercise of discretion was based on all relevant material before it.  That material indicated that:

(i)                  The invitation to hearing dated 28 June 2006 had been sent.

(ii)                The appellant was made aware that a hearing was scheduled for 4 August 2006, notwithstanding that he claimed not to have received the invitation.

(iii)               The Tribunal member had endeavoured to contact the appellant by telephone by the only means available.

(iv)              The Tribunal member had left messages for the appellant to call the Tribunal.

(v)                The Tribunal had sent a copy of the original invitation by express post.

(vi)              Despite all of these steps the appellant did not call the Tribunal and did not attend the hearing.  Indeed, the appellant had switched off his telephone number despite the officer of the Tribunal undertaking to call him back ‘in a few minutes’ on 31 July 2006.

Based on that material it was reasonably open for the Tribunal to make its decision under s 426A without taking any further steps.

20                  I agree with these submissions.

21                  The Tribunal’s decision is not infected with jurisdictional error and there is no appellable error in her Honour’s judgment below.

22                  The appeal must be dismissed with costs.

Associate:

Dated:         10 May 2007