FEDERAL COURT OF AUSTRALIA

SZKLZ  v Minister for Immigration & Citizenship [2008] FCA 262

Migration Act 1958 (Cth)  

 SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238

SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195  

SZKLZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2279 OF 2007

EDMONDS J

6 MARCH 2008

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 from a judgment of the Federal Magistrates Court (SZKLZ v Minister for Immigration & Citizenship & Anor [2007] FMCA 1851 (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 the appellant’s application for a protection visa.

Background

2                     The appellant is a citizen of the People’s Republic of China (‘PRC’) and arrived in Australia on 30 September 2006.  She applied for a protection visa on 4 October 2006. 

3                     The appellant claimed to be entitled to a protection visa by reason of her fear of persecution by the authorities in China by reason of being a Falun Gong practitioner.

4                     On 5 December 2006 the delegate refused the appellant a protection visa on the basis that she was not a person to whom Australia had protection obligations.  The delegate found the appellant’s claim in relation to Falun Gong to be ‘general and unsubstantiated’.  The delegate found that the appellant provided no evidence to satisfy the delegate that she had faced adverse attention of any kind from the PRC authorities.

The Tribunal

5                     On 29 December 2006 the appellant lodged an application for review of the delegate’s decision by the Tribunal.  The appellant did not provide any further information in support of the review application.

6                     On 15 January 2007 the Tribunal wrote to the appellant at her identified mailing address informing her that the Tribunal had considered the material before it in relation to her review application but was unable to make a decision in her favour on that information alone.  The letter went on to invite the appellant to come to a hearing of the Tribunal to give oral evidence and present arguments on a specified date at a specified time and place.  It attached a Response to Hearing Invitation Form which the appellant was asked to complete and return.

7                     On 23 January 2007 the Tribunal received from the appellant the Response to Hearing Invitation Form which had been sent to the appellant indicating that she wished to come to the hearing and requesting a Mandarin interpreter.

8                     The Tribunal’s records disclose that the appellant did not attend at the scheduled time, date and place of hearing.  In its decision, the Tribunal noted that it had written to the appellant on 15 January 2007 inviting the appellant to attend a hearing and noting that the Tribunal received a response from the appellant on 23 January 2007 indicating that she would attend the hearing.  In those circumstances, the Tribunal purported to exercise its discretion pursuant to s 425A of the Migration Act 1958 (Cth) (‘the Act’) to make a decision on the evidence before it without taking further action to allow the appellant to appear before it.

9                     The Tribunal had regard to the only evidence of the appellant’s claims to be a refugee as provided in her statement in support of her application for a protection visa.  The Tribunal found that her claims lacked detail in important respects.  The Tribunal identified those areas of concern which the Tribunal would have wished to explore with the appellant at a hearing.  The Tribunal noted that the appellant’s claims were ‘mere assertions which the Tribunal had not had the opportunity to test at a hearing’.  The Tribunal concluded that ‘given the lack of detail in the Applicant’s claims and without the opportunity to explore the details or test the truthfulness of her claims at a hearing, the Tribunal is unable to be satisfied that the Applicant is or ever was a Falun Gong practitioner’.  The Tribunal affirmed the decision under review.

The Federal Magistrates Court

10                  On 5 April 2007 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  On the morning of the hearing she appeared without representation although she had the assistance of a Mandarin interpreter.  The appellant confirmed that she relied on the grounds identified by her in a further amended application filed on 13 June 2007.  Those grounds were:

‘1.        I was not given an opportunity to explain my case.  I could not manage to attend the hearing on time.  By the time I got to the RRT office, I was told that the hearing was over; I could leave because the hearing was over.  I therefore was not given an opportunity for a hearing.

2.         The Tribunal failed to carry out its statutory duty.  I was not notified the reason or part of the reasons for affirming the decision in accordance with s 424A of the Migration Act 1958.’

11                  The grounds were interpreted for the appellant.  The court informed the appellant that there was no evidence before the court to support her application in terms of her failure to attend the hearing.  The court invited the appellant on at least three occasions to seek leave of the court to give such evidence orally on oath.  The appellant repeatedly stated that she did not wish to give evidence on her behalf.

12                  The Minister read an affidavit of a member of the registry staff of the Tribunal indicating that there was ‘no show’ by the appellant.  There was nothing in the evidence of the Tribunal records before the court to suggest that the appellant attended the Tribunal on the day of the hearing, or that she contacted the Tribunal after the hearing to explain her absence.  The Tribunal decision makes it clear that the appellant did not contact the Tribunal prior to the scheduled hearing to seek a postponement or explain her failure to attend.

13                  The appellant declined to make any submission in support of the first ground of the further amended application and accordingly her Honour found that the first ground was not made out. 

14                  The appellant declined to make any submission in support of the second ground of the further amended application.  As her Honour rightly observed, s 424A of the Act does not require the Tribunal to put its final decision to the appellant.  Moreover, her Honour found that there was no evidence relied on by the Tribunal in affirming the decision under review that was not otherwise information provided by the appellant.  Indeed, as her Honour observed, it was the inadequacy of the appellant’s information that led the Tribunal not to be satisfied that the appellant met the criteria for being a refugee (SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 per Allsop J at [29], [30]; SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238.

15                   Her Honour found that the conclusions of the Tribunal were open to it on the materials before it and for which it provided reasons.  Section 65(1) of the Act mandates that if the Tribunal is not satisfied that an applicant meets the criteria required for a protection visa then a protection visa is to be refused.

16                  Her Honour found that the Tribunal’s decision was not affected by jurisdictional error and therefore was a privative clause decision.  Accordingly, pursuant to s 474 of the Act, the court had no jurisdiction to interfere.

Appeal to this Court

17                  The appellant’s notice of appeal raises the following grounds:

‘1.        The Tribunal had bias against me and did not consider my application in accordance with s 91R of the Migration Act 1958.

2.         The Tribunal failed to carry out its statutory duty.  The Tribunal failed to notify me the reason or part of the reasons for affirming the decision.  The Tribunal failed to consider my application according to s 424A of the Migration Act 1958.

3.                  The Tribunal failed to refer to sufficient independent information for the consideration of my application.’

18                  These grounds were identical to those raised in the appellant’s original application for judicial review filed in the Federal Magistrates Court on 5 April 2007.  However, these were amended in an amended application dated 14 May 2007 and then further amended in the further amended application filed on 13 June 2007 (see [10] above).  It was the grounds raised in this further amended application which were relied on below.  They did not include the first and third grounds of the notice of appeal to this Court.  In the circumstances, there can be no error in her Honour’s reasons below going to the first and third grounds of the notice of appeal to this Court.

19                  So far as the second ground is concerned, it corresponds with the second ground of the further amended application below (see [10] above).  Her Honour dealt with this ground at [24] and [25] of her reasons, in the manner described in [14] above.

20                  There is no error in the way her Honour dealt with the second ground of the further amended application and it follows that there can be no error in her Honour’s reasons below going to the second ground of the notice of appeal to this Court.

21                  The appeal must be dismissed with costs.

Associate:

Dated:         6 March 2008