FEDERAL COURT OF AUSTRALIA

SZJXG v Minister for Immigration and Citizenship [2007] FCA 1120

SZJXG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 695 OF 2007

RYAN J

31 JULY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed

2.         The appellant pay the first respondent’s costs fixed in the sum of $2,000.00.

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 Scarlett FM on 11 April 2007, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  By a decision handed down on 15 November 2006, the Tribunal had affirmed a refusal on 28 August 2006 by a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”), to grant a protection visa to the appellant. 

2                     The appellant is a national of South Korea.  Before the Tribunal, the appellant claimed to have a well-founded fear or persecution because he was a member of a workers union.  He claimed that he had been involved in the struggle for workers’ rights, conducted by the Taejongdae Workers Union, and, as a result, his life had been threatened by his employer and by the South Korean Government.  The appellant outlined his involvement in the union, instancing in particular his participation in a strike from 2 June 2003.  The appellant described threats which he had received from “gangsters” during the strike, which included a telephone call to the effect that he would be raped and killed.  After the strikers had been dismissed by their employer, they held protests in front of the factory and proposed to parade in the streets of Pusan City, but were violently disbanded by police.  When he and other strikers threatened legal action against the Pusan City Government, they received further intimidatory telephone calls and letters.  Gangsters then broke into the appellant’s house and assaulted him, as a result of which he was forced to move to another locality and undertake work as a miner.  When he returned home after more than a year to visit his sick mother, he was again attacked and savagely kicked and beaten, on that occasion by four unknown assailants.  As a result, he required extensive treatment in hospital, where he remained for 20 days.  In the light of that experience and the threats during the second assault, that he would “disappear” if he caused further trouble, he decided to seek protection in a Western country, and after six weeks left for Australia. 

3                     On 25 September 2006, the Tribunal wrote to the appellant, indicating that it had considered all the material before it in relation to the application, but had been unable to make a decision in his favour on that information alone.  The Tribunal invited the appellant to attend a hearing to be held on 31 October 2006.  The appellant failed to attend that hearing.  The change of contact details form was received from the appellant on 31 October 2006, and on the same day the Tribunal wrote to him, indicating that another hearing would be held on 14 November 2006.  No response to that invitation was received, and the appellant failed to attend the new hearing at the allocated time and date. 

4                     The Tribunal expressed its reasoning and conclusion as follows;

‘While the applicant has set out in his protection visa application fairly detailed claims, saying that he has been harmed in the past because he has been threatened and beaten by the police and others, and that this harm has been done to him by reason of his real or imputed political opinion, there has been no opportunity for the Tribunal to test these claims by asking the applicant questions at hearing.  A number of questions therefore remain unanswered, and the claims have not, in the Tribunal’s view, been made out.

… … …

The applicant was invited to appear before the Tribunal on two separate occasions, but did not do so, leaving this claim and other key claims unclarified.  On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well-founded fear of persecution within the meaning of the Convention if he returns to Korea in the foreseeable future.’

5                     Before the learned Federal Magistrate, by an amended application dated 27 March 2007, the appellant contended that the Tribunal had failed to review the appellant’s application and that the Tribunal had made jurisdictional errors in its assessment of his claims.  He also asserted that he had not received the court book and was awaiting legal advice.  In oral submissions, the appellant claimed that the notice given to him to attend the rescheduled Tribunal hearing had been too short, being only 14 days.  His Honour was of the view that the Tribunal had complied with the requirements of ss 425 and 425A of the Migration Act 1958 (Cth) (“the Act”), when it invited the appellant to a hearing.

6                     The period of notice given on 25 September 2006 in relation to a hearing to be held on 31 October 2006 was more than that prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”), which requires 14 days’ notice after the date of receipt, which is deemed to be seven working days after the date of the invitation.  The Tribunal exercised its discretion to send the appellant an invitation to a rescheduled hearing once it had received notice of the change of contact details.  His Honour considered it to be well-established that the prescribed period of notice does not apply to the further invitation;  see SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251, at [29].

7                     Accordingly, Scarlett FM held that the claim by the appellant that he had received insufficient notice of the rescheduled hearing had not been made out.  His Honour recounted that the Tribunal had reviewed the delegate’s decision but had not been satisfied that the appellant had a well-founded fear of persecution for a Convention reason.  In his Honour’s view, that was a conclusion open to the Tribunal in the light of the paucity of the information before it, and upon reaching it, the Tribunal was required to affirm the decision under review.  The learned Federal Magistrate also remarked that the appellant could not complain when the Tribunal advised him of a hearing by letter sent to the address for correspondence given by the appellant himself.  The fact that the appellant chose to absent himself from that address was entirely a matter for the Tribunal, and its treatment of that issue disclosed no jurisdictional error. 

8                     The grounds of the appellant’s notice of appeal filed in this Court on 20 April 2007 are;

‘(1)         RRT did not provide substantial evidence before making the decision and that there was a breach of Section 424A; 

(2)           RRT did not require any evidence to find I am not a refugee; 

(3)           The processing of RRT had some jurisdictional error.’

9                     By directions given on 5 June 2007, Registrar Farrell required, amongst other things, that the appellant file and serve written submissions not later than five clear working days before the hearing date.  That direction was not complied with, and no written submissions have been filed on behalf of the appellant.  The appellant did not assert, either in the Federal Magistrates Court, or on appeal, that he did not receive the Tribunal’s letter of 31 October 2006. 

10                  On the hearing of the appeal, the appellant claimed that he had been ill during the period which included the date of the rescheduled hearing of his application.  He conceded he had made no attempt to notify the Tribunal of that fact, or to seek a further rescheduling of the hearing.  He pressed this Court to remit his application to the Tribunal, and undertook to attend on any hearing which should be fixed as a result of the remitter.  In my view, the learned Federal Magistrate was correct in holding that the Tribunal was not required to give the appellant the prescribed period of notice before the date of a hearing rescheduled in exercise of the discretion conferred by s 426A of the Act.  Provided that the time between the rescheduled hearing and the notice of it is reasonable, the Tribunal commits no jurisdictional error if it does not give the minimum period of notice required by s 425A;  see Minister for Immigration, Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572.

11                  No contravention of s 424A has been made out because the appellant has not identified any information in the possession of the Tribunal which was the reason, or part of the reason, for affirming the decision of the delegate.  The sole reason for taking this course, as the learned Federal Magistrate identified, was a generalised failure, in the absence of the appellant, to attain the requisite satisfaction that the appellant had a well-founded fear of persecution in Korea for a convention reason.  It follows that none of the grounds adumbrated in the notice of appeal has been established, and accordingly, the appeal must be dismissed, with costs which are fixed in the sum of $2,000.

Associate:

Dated:         2^nd August 2007