FEDERAL COURT OF AUSTRALIA

SZNNJ v Minister for Immigration and Citizenship [2009] FCA 1356

SZNNJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1113 of 2009

COWDROY J

23 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for extension of time be dismissed.

2.                  The Applicant pay the costs of the First Respondent.

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

1                     The applicant seeks an extension of time to file and serve a Notice of Appeal from the decision of Federal Magistrate Scarlett delivered on 28 July 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 25 March 2009. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the applicant.

BACKGROUND

2                     The applicant is a citizen of China who arrived in Australia on 29 October 2008. On 11 November 2008 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship (‘the Department’). A delegate of the Minister refused the application for a protection visa on 5 January 2009. On 9 February 2009 the applicant applied to the Tribunal for a review of that decision.

3                     In his application for a protection visa, the applicant claimed to have a well-founded fear of persecution because he is a practitioner of Falun Gong. He claimed to have been arrested in May 2003, September 2006 and August 2008.

THE TRIBUNAL’S DECISION

4                     On 20 February 2009 the Tribunal wrote to the applicant, care of his migration agent, inviting him to attend a hearing of the Tribunal on 23 March 2009. The applicant did not attend the hearing. The Tribunal proceeded pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’) to make its decision, which was sent to the applicant by letter dated 25 March 2009.

5                     Due to the insufficiency of evidence before it, the Tribunal did not accept that the events described by the applicant did occur, or that the applicant was a Falun Gong practitioner. The Tribunal concluded that there was no real chance of the applicant suffering persecution for a Convention-reason in the reasonably foreseeable future on the basis of his involvement with Falun Gong or for any other Convention-reason. The Tribunal therefore affirmed the decision of the delegate that the applicant did not satisfy the prescribed criteria for the grant of a protection visa.

6                     On 27 March 2009, following the handing down of the decision, the applicant’s agent telephoned the Tribunal and explained that he had received the invitation to the hearing but had not been able to contact the applicant and, therefore, the registered agent had not attended the hearing. The Tribunal officer advised the agent that the matter had been finalised.

7                     On 30 March 2009 both the applicant and the migration agent attended the office of the Tribunal and again explained that the applicant was unable to be contacted because, as there was no mobile phone coverage where he was living, he had received no notification of the hearing. For this reason he did not attend. The agent provided a letter to the Tribunal, asking for the applicant’s case to be reopened, and a further letter from the personnel manager of the applicant’s employer at Wallangarra in Queensland, explaining the difficulty in mobile phone communication at the applicant’s work site.

8                     On 31 March 2009 the applicant again attended the Tribunal and told the officer at the counter that there was a lack of mobile phone reception where he was working and that it was not his fault that he was unable to receive any calls or messages. The applicant provided documents to support that claim, and sought a further hearing by having the case reopened. The Tribunal wrote to the applicant’s migration agent on 9 April 2009 stating, inter alia:

Your submission and the further information was forwarded to the Member, who considered the information and decided not to reopen your case.

The decision in your case was made on 24 March 2009. I advise that you were notified of the Tribunal’s decision on 25 March 2009. As the Tribunal has made a decision, it no longer has any power to consider your case.

FEDERAL MAGISTRATES COURT

9                     By Application filed in the Federal Magistrates Court of Australia on 27 April 2009, and by Amended Application filed on 8 July 2009, the applicant sought judicial review of the Tribunal’s decision. The Amended Application stated as follows:

I did not receive notice from my migration agent Mr Songtao LU in respect of the time and date for hearing held by Refugee Review Tribunal. My mobile can not be reached because the signal is very weak in the area I work.

10                  The Federal Magistrate found that it was clear from the material in the Court Book that the Tribunal had no way of knowing that the applicant had not received notice of the Tribunal hearing. Accordingly his Honour found the Tribunal did not fall into error when it proceeded to decide the review under the provisions of s 426A of the Act, citing SZIGQ v Minister for Immigration & Citizenship[2007] FCA 328. The Federal Magistrate also found that the Tribunal was clearly functus officio and had no power to recall its decision once it had been made.

11                  Having found no jurisdictional error in the decision of the Tribunal, Scarlett FM dismissed the application.

APPLICATION TO THIS COURT

12                  On 1 October 2009 the Applicant filed in this Court an Application for Extension of Time to File and Serve Notice of Appeal from the decision of Scarlett FM. The applicant raises the following three grounds in his Draft Notice of Appeal:

1.    Procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed.

2.    I did not receive notice from my migration agent in respect of the time and date for hearing held by Refugee Review Tribunal. My mobile can not be reached because the mobile reception is very weak in the area I work.

3.    I would like to say what I said in my application for a protection visa is true and correct.

SUBMISSIONS

13                  The applicant appeared before the Court, assisted by an interpreter. The applicant re-iterated the circumstances leading to his non-attendance before the Tribunal. The applicant requested this Court to provide him with the opportunity to have a hearing before the Tribunal.

FINDINGS

Application for an extension of time

14                  The decision of Scarlett FM was delivered on 8 July 2009 yet the Notice of Appeal was not sought to be filed until 1 October 2009. Accordingly, an extension of time is required in which to file and serve the Notice of Appeal because, pursuant to O 52 r 15(1)(a)(i) of the Federal Court Rules (‘the Rules’), the appeal should have been lodged within 21 days of the delivery of the judgment sought to be appealed from. Accordingly, leave is required from the Court before the appeal can proceed.

15                  Pursuant to O 52 r 15(2) of the Rules, leave can be granted where ‘special reasons’ are demonstrated by an applicant to justify a grant of leave: see Jess v Scott and Others (1986) 12 FCR 187 at 195. In determining whether ‘special reasons’ exist to warrant a grant of leave under O 52 r 15(2) of the Rules, the Court must be satisfied that there has been an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave and that the substantial application has merit: see Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-349 and Parker v The Queen [2002] FCAFC 133 at [6].

16                  In these proceedings there is no suggestion of prejudice to the respondent if the Court granted leave. As to the aspect of delay, the Court has considered the affidavit of the applicant sworn on 1 October 2009 where the applicant states:

I do not [sic] fill my application for notice to appeal in time for the reason as following: I was in Canberra and I lodged notice of appeal in Canberra on 17 August 2009. but [sic] unfortunately my application was returned to me because I did not provide enough information.

17                  There is nothing presently before the Court to suggest that the Application had been filed in the Canberra Registry of the Court. The applicant informed the Court that he attempted to file the application but further information was requested by the Court. The applicant said he supplied the information, but he was told upon making a telephone enquiry that his papers could not be located. However, this is not of any consequence, since the Minister does not challenge the justification provided by the applicant for the delay, rather the Minister opposes the Application on the basis that the grounds of appeal in the Draft Notice of Appeal contain no merit.

18                  The grounds of appeal nominated in the Draft Notice of Appeal (which accompanies the applicant’s affidavit sworn on 1 October 2009) are extracted at [13] of this judgment. The Court observes that these are substantially the same grounds as those raised before the Federal Magistrate in the Application for judicial review.

First and second grounds of appeal

19                  As was found by Scarlett FM, it is apparent from the material contained in the Court Book that the Tribunal had no way of knowing that the applicant had not received the notice informing him of the date of the Tribunal hearing. Accordingly, the Tribunal did not fall into error when it proceeded to determine the proceedings under review pursuant to s 426A of the Act: see SZIGQ. Although the circumstances leading to the failure of the applicant to attend the hearing are unfortunate, there is no error on the part of the Tribunal. It acted entirely within the procedure mandated by the Act.

20                  It was open to the migration agent to communicate with the Tribunal once he had received notification of the invitation. The invitation, having been forwarded on 20 February 2009, nominated 23 March 2009 as the date for the interview. That is, there was a period of more than four weeks during which time the agent could have notified the Tribunal that his client could not be contacted. The applicant informed the Court that his agent told him that five attempts to contact him by mobile phone were unsuccessful, and that a letter had been posted to him. The applicant said he did not receive any letter form his agent.

21                  In these circumstances the Court considers that the failure to communicate was unfortunate. The agent certainly had it within his power to inform the Tribunal that he could not contact his client, and it is reasonable to assume the Tribunal might have given more time for the applicant to be contacted had it been requested. It was incumbent upon the agent to take such step when it became apparent to him that he was unable to communicate with his client. It was wholly inadequate for the agent to attempt to rectify the situation after the date of the hearing passed and the decision was handed down. However, even if there was bare negligence or inadvertence on the part of the agent, this has been held not to be sufficient to give rise to a fraud by a migration agent on the Tribunal: see Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501 at [33]. No suggestion of fraud by the agent has been raised in these proceedings, as occurred in SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189 and SZNWT v Minister for Immigration and Citizenship (2009) 109 ALD 473.

22                  The Court is unable to find any error in the Federal Magistrate’s decision, namely that the Tribunal was entitled to proceed in accordance with s 426A of the Act. The requirements of procedural fairness mandated by the Act comprises a code, which, if complied with, deems the Tribunal to have fulfilled its statutory obligations concerning a hearing and therefore there is no merit to the proposed grounds of appeal.

Third ground of appeal

23                  The third proposed ground of appeal raised by the applicant suggests that the applicant wishes to challenge the merits of the Tribunal’s decision. The Tribunal, upon the evidence before it, found that it was not satisfied that the applicant had substantiated his claims. The proposed ground of appeal would require the Court to engage in a merits review of the Tribunal’s decision which is impermissible: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259.

24                  As was noted by the Federal Magistrate, frequently a Tribunal will not be satisfied that an applicant meets the requirements for a protection visa due to the inadequacy of the information before it in circumstances when an applicant does not attend Tribunal hearings: see, for example, SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 at [18]; SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCA 1306 at [16]; and NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5].

25                  The Court can find no merit in the proposed ground of appeal.

Conclusion

26                  The Court is accordingly unable to find any error in the findings of the Federal Magistrate or merit in the proposed grounds of appeal. Consequently, the Court cannot find ‘special reasons’ justifying a grant of leave for the filing of a Notice of Appeal out of time.

27                  The circumstances are unfortunate for the applicant. However, in the absence of jurisdictional error the Court is unable to set aside the decision of the Federal Magistrate or the Tribunal. The only avenue available for the applicant is to make representations to the Minister pursuant to s 351 of the Act.

Associate:

Dated:         23 November 2009