FEDERAL COURT OF AUSTRALIA

SZRRW v Minister for Immigration and Citizenship [2013] FCA 332

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

(Revised from transcript)

BACKGROUND

1    The appellant in this matter claimed to be a citizen of China who arrived in Australia on 2 August 2011. He apparently came to this country on a tourist visa. He applied for a protection visa on 24 October 2011. On 17 February 2012 a delegate of the Minister refused to grant the appellant the protection visa. This occurred in circumstances where, as it would appear from the reasons for decision of the Refugee Review Tribunal (the Tribunal), the appellant failed to attend his scheduled interview and also failed to make contact with the department explaining why he was unable to attend.

2    In submissions made to me today, the appellant asserted that he never received notice of that interview. In one sense, that may be beside the point, because the appellant subsequently applied for review of the delegate’s decision to the Tribunal. The Tribunal affirmed the decision of the delegate not to grant a protection visa in circumstances which I will shortly describe.

3    By letter dated 11 May 2012, the Tribunal invited the appellant to attend a hearing in Sydney on 29 May 2012. On 11 May 2012, the Tribunal received a response to that invitation by facsimile indicating that the appellant would attend the hearing.

4    The day before the scheduled hearing the appellant sent a facsimile to the Tribunal indicating that he was in Perth and unable to attend the hearing, and asking for the case to be transferred to Perth or for videoconference facilities to be made available. In response, the Tribunal sent another invitation to the appellant to attend a hearing, this time scheduled for 3 July 2012 to take place by videolink. The day before that hearing was to take place, the appellant sent a facsimile to the Tribunal stating that he had returned to Sydney and would attend the hearing in person.

5    The Tribunal hearing took place on 3 July 2012. Contrary to what the appellant foreshadowed in the facsimile he sent to the Tribunal the previous day, he did not attend the hearing. It is apparent that the Tribunal had, in the absence of the appellant, very little information upon which to assess his claims. According to the Tribunal, the appellant claimed that he had reported corrupt practices at his work place, which was a hotel in which a local government official had a shareholding. The appellant claimed that the corruption involved this official and the appellant’s boss. He claimed that he reported the corruption to government officials in October 2010, and that no action was taken in relation to his report, but that his boss was informed and that he was subsequently beaten up and threatened.

6    The appellant claimed that he took his complaint to the provincial government in January 2011 and that in the following month he was detained by police for 15 days. After his release, he claimed his former boss sent people to harass him, and that while in China he lived under the threat of such harassment. He claimed that he wanted to quit his job but that government officials could find him wherever he went.

7    In circumstances where there was very little evidence before the Tribunal and the appellant failed to appear at the hearing, the Tribunal was, perhaps unsurprisingly, not satisfied that he had a well-founded fear of persecution if he were to return to China now or in the foreseeable future: see NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]; NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [5]. The Tribunal found that the evidence before it did not suggest, and the Tribunal was not satisfied, that the appellant would be subjected to mistreatment amounting to persecution because of his past actions in exposing corruption. The Tribunal was satisfied that the appellant was not a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees 1951.

THE FEDERAL MAGISTRATE’S DECISION

8    The appellant lodged an application for judicial review of the Tribunal’s decision with the Federal Magistrates Court. The grounds relied upon in the application for review asserted that the Tribunal was biased against the appellant, that it failed to hear evidence from the appellant, and that it failed to notify the appellant of the hearing time.

9    The matter came on for hearing before the Federal Magistrate, whose decision is the subject of the present appeal. The appellant appeared at the Federal Magistrates Court. Having heard from the appellant, the Federal Magistrate dismissed the appellant’s application with costs.

10    The Federal Magistrate was not satisfied that the appellant was not aware of the appointed hearing time. His Honour was satisfied that the Tribunal complied with the necessary procedures under the Migration Act 1958 (Cth) to afford the appellant an opportunity to attend a hearing.

GROUNDS OF APPEAL

11    The grounds of appeal relied upon by the appellant in this court are twofold. The first ground of appeal asserts that the Federal Magistrate was in error in failing to identify procedural unfairness affecting the Tribunal hearing. The second was that the Federal Magistrate was biased. In his oral submissions to me, the appellant did not press the second of these grounds, and it need not be addressed further.

12    So far as the first ground of appeal is concerned, the appellant asserted to me that he did not receive notice of the hearing before the delegate. It was less clear to me what his position was in relation to the hearing before the Tribunal, but I will proceed on the basis that it is his contention that he did not receive any notice of the hearing that took place before the Tribunal.

13    In circumstances where the Tribunal rescheduled the hearing date to suit the appellant, it does not seem to me plausible that the appellant was not on notice of the rescheduled hearing date. The Federal Magistrate was not satisfied that the appellant did not receive notice of the hearing before the Tribunal. His Honour made a finding that the Tribunal complied with its statutory obligations in relation to affording the appellant an opportunity to attend the Tribunal hearing. Nothing has been put to me that would suggest that there was any legal or factual error by the Federal Magistrate in arriving at that conclusion.

DISPOSITION

14    In the circumstances, the appeal against the Federal Magistrate’s decision will be dismissed with costs.

Associate:

Dated:    11 April 2013