SZCQR v MIMIA

[2005] HCATrans 838

[2005] HCATrans 838

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S323 of 2005

B e t w e e n -

SZCQR

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 9.06 AM

Copyright in the High Court of Australia

McHUGH J:   The Refugee Review Tribunal rejected the claim of the applicant, a Chinese national, for a protection visa because the Tribunal found that the applicant would not be at risk of persecution relating to her family background as “rich farmers”, if she were to return to China, and that the applicant’s association with the Falun Gong was not motivated by a genuine belief in Falun Gong, but was an attempt to provide an additional claim in support of her application.

The Federal Magistrates Court held that the Tribunal did not breach the principles of procedural fairness by making “a decision on the review without taking any further action to allow or enable the applicant to appear before it”, under s 426A of the Migration Act 1958 (Cth) (“the Act”), after the applicant had failed to attend the Tribunal’s hearing on 17 December 2003, even if the applicant’s migration agent had informed her that she was not required to attend the Tribunal hearing. The Court also held that the ordinary person reading the letter that the Tribunal sent the applicant would have been left with the same understanding as was required by the procedural fairness provisions of the Act.

The Federal Court dismissed an appeal on the grounds that the Federal Magistrates Court made no findings of fact as to information that the applicant allegedly provided the Tribunal’s Registry on 4 January 2004 and that, without those findings of fact, the applicant’s grounds of review that concerned the Federal Magistrates Court’s failure to consider the information could not succeed. The Court also held that the Tribunal did not fail to consider the information that the applicant provided the Tribunal in the faxed letter of 5 January 2004, that it was open to the Tribunal under s 426A of the Act to make a decision in the absence of the applicant, and that the letter that the Tribunal sent the applicant did not fail to contain a statement of the effect of s 426A of the Act.

The applicant’s special leave application complained that the failure of the Tribunal to comply with the applicant’s request in the letter of 5 January 2004 and grant the applicant a new hearing date constituted a denial of procedural fairness and jurisdictional error.  However, the decision of the Federal Court is not attended with sufficient doubt to justify, in this case, a grant of leave to appeal.

The application is dismissed.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application.  I publish our joint reasons.

AT 9.07 AM THE MATTER WAS CONCLUDED