FEDERAL COURT OF AUSTRALIA

SZIHX v Minister for Immigration and Citizenship [2007] FCA 1295

MIGRATION – appeal from a decision of a Federal Magistrate – Malaysian citizen of Chinese ethnicity – non-attendance at hearing – Federal Magistrate correct in concluding no breach of s 425(1) – new grounds raised on appeal – appeal dismissed.

Migration Act 1958 (Cth) ss 424A, 425(1), 426A

WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 cited

SZIHX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1098 OF 2007

LANDER J

20 AUGUST 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

1                     This is an appeal against an order of a Federal Magistrate made on 29 May 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 8 December 2005 and handed down on 3 January 2006.  The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the appellant.

2                     The appellant was born on 31 March 1963 and is a citizen of Malaysia.  He arrived in Australia on 12 June 2005.  On 25 July 2005 he applied for a Protection (Class XA) visa.  A delegate of the first respondent refused his application on 24 August 2005.  On 28 September 2005 the appellant lodged an application for review to the Tribunal.  The Tribunal affirmed the delegate’s decision.

3                     In a statement attached to his protection visa application, the appellant claimed that he was persecuted in Malaysia on the Convention ground of race, namely, his Chinese ethnicity.  He claimed the Chinese minority were subject to racial discrimination.  He stated that Chinese people in Malaysia were not afforded the same opportunities as the Malaysian majority and that if returned to Malaysia he would become a target of “gangsters”.  He would receive no help from the Government.

4                     The appellant did not supplement those claims in respect of his review application to the Tribunal.

5                     On his application to the Tribunal for review, the appellant did not nominate an agent or authorised recipient to receive correspondence, instead electing that it be sent to him at “34 Parkside Drive, Kogarah Bay, NSW, 2217” (the Kogarah Bay address).

6                     On 27 October 2005 the Tribunal sent the appellant an “invitation to hearing” by way of registered letter to this address inviting him to a hearing on 30 November 2005.  This letter was “returned to sender” with the box marked “refused” ticked and was received by the Tribunal on 2 November 2005.

7                     On 18 November 2005 the Tribunal sent a letter to the appellant at 36/460 Pitt Street, Sydney, NSW, 2000 (the Pitt Street address), which was the postal address recorded on the appellant’s initial protection visa application, seeking confirmation of the appellant’s address and enclosing a change of contact details form.  The Tribunal warned the appellant (in bold text) that if it had not heard from him by 6 December 2005 it would assume “that [his] addresses have not changed from the ones shown in the box above.”  No reply was received from the appellant.  He did not attend the hearing.

8                     The Tribunal proceeded to make a decision pursuant to s 426A of the Migration Act 1958 (Cth) (the Act).

9                     The Tribunal set out the appellant’s claims as stated in his protection visa application.  In its finding and reasons, the Tribunal stated that the appellant’s claims were “vague and lacking in detail” and that he had “provided little evidence of any persecution or discrimination he may have suffered or that he fears that he may suffer from gangs in Malaysia.”  The Tribunal noted that the claims were mere assertions and that the Tribunal had not had the opportunity to test those claims at a hearing.  Due to the lack of detail as to how the appellant was adversely affected, the Tribunal said that it could not be satisfied that the appellant had suffered serious harm in the past or would do so in the reasonably foreseeable future.  The Tribunal concluded that it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

10                  On 9 December 2005 the Tribunal wrote to the appellant at the Kogarah Bay address advising that a decision had been made and would be handed down on 3 January 2006.  The decision was then sent to the appellant at the Kogarah Bay address on 3 January 2006.

11                  On 9 February 2006 the appellant applied to the Federal Magistrates Court for a review of the Tribunal’s decision.  He claimed that the Tribunal failed to invite him to a hearing and therefore breached s 425(1) of the Act.  The particulars stated that the appellant assumed that as the Tribunal had sent the letter dated 6 December 2005 to the Pitt Street address, that by stating it would assume “that [his] addresses have not changed from the ones shown in the box above”, it was referring to his Pitt Street address.  He asserted that he was not notified by the Tribunal regarding the hearing or any other matters in relation to his application.

12                  In the application to the Federal Magistrates Court, he stated that he received notification of the decision of the Tribunal on 12 January 2006.  It is to be remembered that the Tribunal’s decision was sent to the same address as the invitation to hearing letter.  In his affidavit filed with his application he stated that he “recently became aware that [the] RRT has refused [his] application and the decision was sent to [his] previous address at Kogarah Bay.”

13                  The Federal Magistrate examined the procedures prescribed by the Act in order for the Tribunal to validly effect notice of an invitation to hearing and concluded that the Tribunal invited the appellant to attend a hearing in accordance with the prescribed time.  The Federal Magistrate concluded that the Tribunal had complied with its obligations pursuant to s 425(1) in inviting the appellant to a hearing.  The Federal Magistrate further concluded that the Tribunal was entitled to make a decision under s 426A of the Act without inviting the appellant to a further hearing.  The ground identified by the appellant in his application to the Federal Magistrates Court was therefore not made out.

14                  The Federal Magistrate also considered the Tribunal’s decision.  She concluded that the Tribunal was within jurisdiction to dismiss the application on the material before it.

15                  On 18 June 2007 the appellant filed a notice of appeal to this court.  Two grounds are raised.  First, that the Tribunal fell into jurisdictional error in relying upon historical country information rather than up-to-date information.  Secondly, that the Tribunal breached its obligations under s 424A of the Act by not putting the country information on which it relied to the appellant.

16                  The notice of appeal raises two grounds not in issue before the Federal Magistrate.  In WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624, new appeal grounds were substituted at the last minute when the appellant had been assigned pro bono counsel.  French J noted at [18]:

It is ordinarily regarded as exceptional to allow a point to be raised on appeal that was not raised at first instance – University of Wollongong v Metwally (No 2) (1985) 60 ALR 68; 59 ALJR 481; Crampton v R (2000) 206 CLR 161; 176 ALR 369.  But as Branson and Katz JJ said in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at [3]:

“This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance.”

17                  His Honour continued at [19]:

To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant.

18                  There appear to be no “exceptional” circumstances in this case.  The appellant sought to impugn the Tribunal’s decision under s 425(1) of the Act before the Federal Magistrate.  That point has now been abandoned in favour of two quite different grounds.  To allow the appellant to agitate those grounds would be to render the process before the Federal Magistrate irrelevant and indeed contrary to the policy in the Act, as this Court would be made the Court of first instance.  The appellant, who was unrepresented on appeal, could not explain why the present course had been adopted and why the matters sought to be agitated could not have been raised before the Federal Magistrate.  For those reasons, in my opinion, it would have been inappropriate to have allowed the appellant to argue those matters on this appeal.  However, there is a more compelling reason for reaching that conclusion.  Both new grounds would fail for the simple reason that the Tribunal did not rely on any country information.  The grounds of appeal are therefore irrelevant to the Tribunal’s decision.

19                  The appeal must be dismissed and the appellant must pay the first respondent’s costs.

Associate:

Dated:         21 August 2007