MZWXH v Minister for Immigration & Multicultural Affairs

[2006] FCA 1322

FEDERAL COURT OF AUSTRALIA

MZWXH v Minister for Immigration & Multicultural Affairs
[2006] FCA 1322

MZWXH AND MZWXI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR
VID 335 OF 2006

RARES J
4 SEPTEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	VID 335 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWXH
First Appellant

MZWXI
Second Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	4 SEPTEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	VID 335 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWXH
First Appellant

MZWXI
Second Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	4 SEPTEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from the Federal Magistrates Court:  MZWXH v Minister for the Immigration [2006] FMCA 418. The matter was originally listed before me in Melbourne on 9 August 2006. On that occasion after the matter was called the appellants did not appear. In the course of discussion with counsel for the first respondent an issue arose as to whether there had been service, of the invitation to attend the hearing before the Refugee Review Tribunal for the purposes of the Migration Act 1958 (Cth), on the second appellant, who is the wife of the first appellant.

2. I adjourned that hearing in order that the Minister might make further submissions on that issue and I directed that the appellants be given notice of the resumed date which was originally fixed for 1 September 2006.  That was rescheduled to today because the video conferencing facilities for me to sit in Sydney and hear the matter by video link to Melbourne were not available on that day.  The solicitor for the Minister, Mr Brereton, wrote to the male appellant at their address for service on 11 August 2006 notifying the original relisting of 1 September.  Then on 15 August 2006 he wrote notifying the rescheduled hearing.  The letters were each addressed to the husband.

3. Although the solicitor for the Minister wrote only to the male appellant on these two occasions, he addressed the letter to the address for service which the appellants gave in their notice of appeal.  The female appellant had not appeared when the matter was listed in the regular course on 9 August 2006 and in those circumstances I dispense with any further requirement for her to be notified of today’s hearing date.

4. Essentially the appellants challenged, in their notice of appeal, the failure of the trial judge to detect a jurisdictional error in the decision of the tribunal made on 14 December 2004 and handed down on 7 January 2005 to affirm the Minister’s delegate’s decision not to grant protection visas to the appellants.  In essence, the appellants claimed that because of the husband’s political activities in Thailand, of which country both appellants are nationals, he had a well-founded fear of persecution for reasons of his political opinion so as to justify him and his wife obtaining refugee status under the provisions of the Act in conformity with the 1951 Convention relating to the Status of Refugees as amended (the Convention).

5. The husband had stated in his application for review which he made to the tribunal that he wished to have reviewed the decision of the delegate to refuse the grant of a visa.  He did not provide any further material to the tribunal.  The appellants’ original application for a protection visa included a letter written by them to the Minister dated 24 May 2004 in which they claimed that because of the husband’s support of the Democrat Party since 1999 and the husband’s connection to the person who became the President of Rayong Province he was at risk of life-threatening persecution.

6. The tribunal sent a letter in early November 2004 notifying the husband, who was the authorised recipient for his wife under ss 441A(1) and 441G of the Act to receive communications, that it had considered all the material before it in relation to the application but was unable to make a decision in their favour on that information alone.  The husband responded to the invitation to hearing indicating that he did intend to attend and give evidence to the tribunal but on 13 December 2004, the day before the hearing was scheduled, he wrote saying:

   ‘I request the Tribunal to make a decision on the papers before them.  I have decided not to attend the hearing.’

7. Unsurprisingly, having been warned by the tribunal in its letter inviting him to the hearing that it was unable to make a decision in the appellants’ favour, the tribunal said that it was not satisfied that the appellants had established their claims for protection.

8. The tribunal said in its reasons that it did not accept that the appellant was an active supporter of and/or campaign worker for the Democrat Party as he claimed.  It indicated that it would have asked him questions about his involvement had he attended the hearing.  It also indicated that it did not accept that the husband was threatened as he had claimed and that it would have asked him questions about those claims had he come to the hearing.

9. In particular, the tribunal noted that it would have invited the husband to provide more information about what had happened in the three years since the 2001 election when the Democrat Party lost power in Rayong Province and what had finally caused the husband to come to Australia in 2004.

10. The tribunal noted that the husband had not provided any information about who was or might be threatening him and concluded that it did not accept, on the limited information available to it, that the husband faced a real chance of persecution due to his political opinion or for any other Convention reason.  The tribunal concluded that it was not satisfied on the evidence before it that the husband had a well-founded fear of persecution within the meaning of the Convention.  Because the wife’s application in essence depended upon the fate of her husband’s application, hers also failed.

11. I am of opinion that there is no arguable basis upon which it could be suggested that the tribunal, on the material before it in circumstances where the husband did not appear, made any jurisdictional error in arriving at a conclusion that it was not satisfied that his claims were made out.  He did not give any evidence to the tribunal in support of his claims.  It was entirely open to the tribunal to come to the conclusion that those claims on the papers did not satisfy it that any claim for a protection visa had been established.

12. The scheme of the Act envisages that an applicant for review can be invited to a hearing where the tribunal has given notice to the applicant that it is unable to decide the review in the applicant’s favour on the basis of the material before it (s 425).  In that circumstance, s 425A requires that the tribunal must give an applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.  It is clear that those requirements were fulfilled in the present case.

13. At the hearing on 9 August 2006, I raised the question with counsel for the Minister as to whether the form of invitation complied with the Act in respect of notifying the wife of the hearing before the tribunal.  That was because the tribunal wrote only to the husband in conformity with the request of both the husband and the wife in the application for review, which each of them signed, that the tribunal be authorised to communicate with the husband alone about the application.

14. In light of the Minister’s supplementary submissions which drew attention to the way in which Div 7A of Pt 7 of the Act operates and in particular how ss 441A and 441G operate, I am satisfied that the method of communication adopted by the tribunal was a method of communication in such circumstances authorised by the Act:  see SZDLA v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 221 ALR 164 at 176-178 [41]-[45] per Conti J. In dismissing the application for special leave to appeal in that case (SZDLA v MIMIA [2006] HCA Trans 21), Kirby J on behalf of himself and Hayne J said:

    ‘The Act requires by the use of the word “must”, that the Tribunal give notice of a hearing to an applicant.  However, unsurprisingly, it provides for the relevant document to be given “to the applicant or to a person authorised by the applicant to receive documents”.  See the Act-section 441A(2)(a).  The relevant form contained what appeared to have been the husband’s signature authorising the Tribunal to communicate with the wife as contact person.  Notice was certainly given to the wife.  In these circumstances the statutory requirement with respect to the husband was complied with.’

15. The court refused special leave to appeal.

16. I am of opinion that the requirements of the Act were complied with in this case for the giving of notice to the wife in the manner adopted by the tribunal.

1. For these reasons I am of the opinion that the appeal should be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:       9 October 2006

Appellants:	No appearance
Counsel for the Respondent:	Mr M Felman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 September 2006
Date of Judgment:	4 September 2006