SZBFV v Minister for Immigration and Multicultural &

[2005] FCA 936

FEDERAL COURT OF AUSTRALIA

SZBFV v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 936

SZBFV v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

NSD 487 of 2005

LINDGREN J
5 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 487 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBFV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	5 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

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	NSD 487 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBFV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	5 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a decision of the Federal Magistrates Court of Australia (‘FMCA’) of 10 March 2005 (SZBFV v Minister for Immigration [2005] FMCA 324), dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 30 June 2003 and handed down on 24 July 2003. By that decision the Tribunal affirmed a decision of a delegate of the respondent Minister (‘the Delegate’ and ‘the Minister’ respectively), made on 7 June 2002 refusing the appellant’s application for a protection visa.

   Background

2. The appellant is a 24 year old Chinese citizen.  He arrived in Australia on 16 April 2002, travelling on a visitor’s visa.  On 16 May 2002 he lodged an application for a Protection (Class XA) Visa.  He claimed to fear persecution because he was a practitioner of Falun Gong.

3. After the Minister’s delegate refused the appellant’s application for a protection visa on 7 June 2002, the appellant applied to the Tribunal to review that decision on 3 July 2002.

4. On 2 June 2003 the Tribunal sent a letter to the appellant, at both the address he had supplied as his address for service, and the address he had supplied as his home address, stating:

   ‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.’

   The letter invited the appellant to a hearing on 26 June 2003.

5. On 16 June 2003 the copy of the letter dated 2 June 2003, sent to the appellant’s home address, was returned marked as ‘Unknown at Address’.  On 16 June 2003 the Tribunal called a telephone number which had been provided to it by the appellant, but the appellant was unknown to the person who answered the phone.

6. On the same day, 16 June 2003, the Tribunal received a notice appointing an authorised recipient, a notice of change of address, and a response to hearing invitation form which indicated that the appellant did want to attend the hearing.  It purported to be signed by the appellant personally.  Despite this, the appellant failed to attend the hearing.

7. When the appellant failed to appear at the hearing, the Tribunal proceeded to determine the application pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’). It found his claims to be very general and non-specific, and too vague to enable appropriate and reliable factual findings to be made about key issues central to his claims. It found that it did not have sufficient detailed information about his claims to be satisfied that he met the definition of refugee under the Convention. The Tribunal was not satisfied that he was a Falun Gong member, or that he was in genuine fear of persecution.

8. The appellant filed an application in the FMCA on 18 August 2003.  It stated two grounds of review:

   ‘1.       The decision of the RRT was induced by actual bias of the officer.

   2.There was no evidence or other materials to justify the making of the decision.’

   Those grounds were not particularised.

9. In late February 2004, the respondent was served with an unfiled affidavit sworn on 23 February 2004 by the appellant.  It appeared to raise the following additional grounds of review:

   ‘3.[W]hen I asked for postpone of my hearing date, the Tribunal refused my application.  I don’t think the Tribunal had the genuine intention to discuss above-mentioned matter with me.

   4.I believe that the officer made jurisdiction mistakes by saying I was not a refugee and did not take into account the details of my application.’

10. The appellant did not file any written submissions in support of the application before the FMCA.

11. A hearing was held before Raphael FM on 10 March 2005. At the hearing the appellant was cross-examined on his affidavit. The learned Federal Magistrate delivered reasons for judgment dismissing the application. His Honour found that the provision of the notice of the hearing given to the appellant at the addresses he provided constituted deemed service of the notice of the hearing. His Honour was satisfied that the Tribunal was able to come to the decision which it did on the basis of the failure of the appellant to provide it with sufficient particulars to allow it to be satisfied, as required under s 36 of the Act.

12. The learned Federal Magistrate noted the appellant’s argument that he had asked the Tribunal to adjourn the hearing, and it had not agreed to do so.  The difficulty with that assertion was that his Honour could not be satisfied, from the appellant’s evidence, that he really did send the letter that he alleged he did, when he appeared to have been represented by a migration agent, and there was no record of receipt of such a letter by the Tribunal contained in the Court Book.  His Honour believed that he was entitled to infer that had such a letter been received by the Tribunal, it would at least have been answered, but the appellant did not claim to have received an answer.  His Honour rejected an argument that the Tribunal had not told the appellant where to go for the purposes of the hearing.

13. His Honour also rejected an allegation of bias and a submission that there was no evidence to justify the Tribunal’s decision.  His Honour finally rejected an assertion that the Tribunal did not take into account the details of the appellant’s application.

14. His Honour concluded that, in all the circumstances, there were no grounds on which the Court could grant the appellant review of the decision of the Tribunal.

15. On 30 March 2005 the appellant filed in this Court a notice of appeal appealing from the whole of the learned Federal Magistrate’s judgment of 10 March 2005.  He also filed an affidavit sworn by him on 28 March 2005.  The affidavit states:

    ‘1.I lodged my application for review to Federal Magistrates Court because I found out some mistakes of RRT when they considered my application for a protection visa.

    2.The decision made by RRT was induced by actual bias of the officer.  There was no evidence or other materials to justify the making of the decision.

    3.The Tribunal officer had bias against me and refused to accept any new submissions to the Tribunal.

    I argued at the Federal Magistrates Court with particulars of the grounds of my review application, and I put forward the jurisdiction errors made by the Tribunal.  The Judge could not accept any of my arguments and the explanation, and refused my application at the Federal Magistrates Court.  I hereby lodge my application for the Federal Court of Australia for further consideration of my application for a protection visa.  I believe that my application should be reconsidered at RRT I hereby file a notice of appeal from the judgement [sic] at the Federal Magistrates Court on 10/03/2005.’

16. On 2 June 2005 an amended notice of appeal was filed.  It raises the following grounds of appeal (which have been renumbered):

    ‘1.The Tribunal fell into jurisdiction [sic] error when considering my application for a protection visa.

    2.The Federal Magistrates Court did not consider the points that I put forward at the hearing and refused my application on the spot.

    3.The Tribunal did not provide a solid ground for not granting me the visa.’

17. The appellant has not served any written submissions in support of his appeal.

    Consideration

18. None of the three grounds of appeal are made out.

19. If it is assumed, in favour of the appellant, that the grounds of appeal import the matters referred to in the appellant’s affidavit, my conclusion is that the appellant has not established ‘mistakes’, or bias or an absence of evidence or other material to support the Tribunal's decision.

20. The only matter which seems to call for further discussion is the question of the appellant’s alleged non-receipt of notice of the Tribunal hearing.  The appellant has addressed certain oral submissions relating to this matter to me today.  It should be noted, however, that he did not raise this matter before the learned Federal Magistrate.  He did complain (erroneously) that the Tribunal had ‘refused’ to give him a hearing, but conceded that what he had meant was that the Tribunal had conducted a hearing in his absence.  He also complained before the Federal Magistrate, as noted above, that he had written a letter to the Tribunal asking for a postponement of the hearing date of 26 June 2003.  His testimony to that effect before the Federal Magistrate suggested that he was aware of the hearing date.  His complaint before the Federal Magistrate was that he had not received a reply and that the Tribunal had proceeded with the hearing in his absence. 

21. In his form of application to the Tribunal for review of the Delegate’s decision, the appellant stated two addresses:  a home address and an address for service.  That application was received by the Tribunal on 3 July 2002.  On 10 July 2002, the Tribunal wrote to the appellant at the address for service, and it is not suggested that he did not receive that letter. 

22. On 2 June 2003, the Tribunal wrote to the appellant again at the address for service, with a copy to him at his home address.  The letter which was sent to the home address was returned to the Tribunal on 16 June 2003, marked ‘Unknown at address’.  However, importantly, the letter sent to the appellant’s address for service was not returned to the Tribunal. 

23. One document which the Tribunal received on 16 June 2003, was a document appointing a person named ‘Orchid Sit’ as the appellant’s authorised agent with authority to act on his behalf in the proceeding before the Tribunal.  The second document, purporting to have been signed by the appellant, was dated 6 June 2003, and stated that the he wished to attend the hearing and would need an interpreter in the Chinese language.  The third document was one by which the appellant notified the Tribunal of a change of his home and mailing address.  The new mailing address was apparently that of Orchid Sit, his newly appointed agent. 

24. The appellant denies that the signature on the second document referred to, the one indicating his desire to attend a hearing, is his signature.  It does appear to be different from the signatures on various other documents which undoubtedly are the signature of the appellant.  Moreover, while the ‘authorisation of agent’ document and change of address document are both dated 16 June 2003, the acceptance of the invitation to come to a hearing is dated 6 June 2003.  It may be that what purports to be the appellant’s signature on the acceptance of invitation document is in fact the handwriting of Ms Sit.

25. Nothing, however, turns on the factual question to which I have referred. Section 425A of the Act requires that any invitation to an applicant to appear before the Tribunal must be given, by, relevantly, one of the methods specified in s 441A.

26. The relevant method specified in s 441A is as follows:

    ‘(4)Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:

    (a)within 3 working days (in the place of dispatch) of the date of the document; and

    (b)       by prepaid post or by other prepaid means; and
    (c)       to:

    (i)the last address for service provided to the Tribunal by the recipient in connection with the review; or

    (ii)the last residential or business address provided to the Tribunal by the recipient in connection with the review.’

27. In this case, the Tribunal sent the invitation dated 2 June 2003 by prepaid post to the appellant at both the last address for service provided by him to the Tribunal, and the last residential address provided by him to the Tribunal. Subsection 441C(4) of the Act provides that:

    ‘If the Tribunal gives a document to a person by the method in subsection 441A(4), ... the person is taken to have received the document:

    (a)if the document was dispatched from a place in Australia to an address in Australia – 7 working days ... after the date of the document;’

    That is to say, the Act deems the appellant to have received the invitation dated 2 June 2003, seven working days after that date, even if, unbeknown to the Tribunal, he did not in fact receive it.

    Conclusion

28. For the reasons given above, the appeal will be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             11 July 2005

The appellant appeared in person.
Counsel for the Respondent:	Mr J A C Potts
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 July 2005
Date of Judgment:	5 July 2005