SZFBF v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 756

FEDERAL COURT OF AUSTRALIA

SZFBF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 756

SZFBF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

N 406 OF 2005

HILL J
3 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 406 OF 2005

BETWEEN:

SZFBF
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

HILL J

DATE OF ORDER:

3 JUNE 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application to this Court for leave to appeal be amended so as to include the Refugee Review Tribunal of Australia as the second respondent.
2. The application for leave to appeal be dismissed.
3. The applicant pay the first respondent’s costs of the application.

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	N 406 OF 2005

BETWEEN:

SZFBF
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL OF AUSTRALIA
SECOND RESPONDENT

JUDGE:	HILL J
DATE:	3 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex tempore – revised)

HILL J:

1. Before the Court is an application for leave to appeal against a decision of a Federal Magistrate upholding an objection made by the respondent Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) that the Federal Magistrates Court had no jurisdiction to hear the applicant's application to that Court. 

2. The appellant is a citizen of the Peoples Republic of China.  She arrived in Australia in June 2000 and applied for a protection visa in June 2001.  In due course, a delegate of the Minister conducted an inquiry into her application.  She was asked to comment on certain matters that the delegate regarded as being adverse to her claim.  She made no response to that request.  Her application for a protection visa was refused by the delegate and accordingly, she applied to the Tribunal to review that decision.

3. It was the applicant's claim that she feared that she would be arrested if she were returned to China because of her being a practitioner of Falun Gong.  She relied both upon activities she had undertaken in Australia and the fact that Falun Gong was banned by the authorities in the Peoples Republic of China.  In due course, the Tribunal wrote to the applicant advising her that it would be unable to make a favourable decision on the papers alone.  It invited the applicant to attend a hearing on 16 August 2002.  As it happened, for reasons I will mention in a moment, she did not attend that hearing. 

4. The Tribunal proceeded to consider her application and reject it.  It noted that the information she had given was sparse and vague.  She gave no documentary evidence supporting her claim.  It was not irrelevant to the Tribunal that she had continued in employment until she left the Peoples Republic of China and had not applied for the protection visa until a year had passed after her arrival in Australia. 

5. In her application for the visa and related documents, the applicant had notified, as her address to receive notices from the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”), the address of a migration agent.  One document bearing her signature revoked an address in Cabramatta and advised, as a new address, the agent's address.  No other address was notified to the Minister or the Tribunal.  No telephone number was notified to the Tribunal.  The applicant says that she did not receive the Tribunal's invitation to attend the hearing before it.  She says, and I have no reason to disbelieve her, that the reason she did not do so was the agent's mistake.  She says that she trusted him and paid him money.  She says that he told her to leave everything to him.  She did so, but was then ignorant of the fact that the Tribunal had heard her case.

6. After the Tribunal's decision the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal's decision.  That application was out of time.  It followed that the Magistrate had no jurisdiction to hear the application for judicial review unless the Tribunal's decision was not a privative clause decision.  A decision of the Tribunal which is infected with jurisdictional error or made in bad faith will not be a decision at all and thus not a privative clause decision: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.

7. It was therefore necessary for the applicant to show that the Tribunal's decision was either infected with jurisdictional error or made in bad faith.  It seems to have been argued before the Magistrate that, because the Tribunal had proceeded in her absence in the circumstances I have described, the Tribunal had acted either manifestly unreasonably or had otherwise made a jurisdictional error.  The learned Magistrate rejected the submission that it was.

8. It may be accepted that there was an obligation upon the Tribunal to invite the applicant to attend a hearing and address the Tribunal's concerns.  It can be accepted that failure on the part of the Tribunal to do this would amount to jurisdictional error.  However, the present is not such a case.  The Tribunal did all it could to notify the applicant of the hearing it proposed to undertake.  It telephoned the applicant's adviser and asked him whether the applicant intended to come to the hearing.  Initially, the adviser/agent said he had been unable to contact the applicant.  Later, he called the Tribunal and advised the Tribunal that the applicant did not wish to attend.  The agent did not, as requested by the Tribunal, put this in writing.

9. As the learned Magistrate pointed out, there was nothing else which the Tribunal could do in seeking to have the applicant attend the inquisitorial hearing it proposed to conduct. Section 425 of the Migration Act 1958 (Cth) (“the Act”) imposes upon the Tribunal the obligation to invite an applicant to appear before it. Subject to certain exceptions, not presently relevant, the Tribunal did what it was obliged to do under that section. Section 426A of the Act provides that if the applicant has been invited under section 425 to appear but does not do so, the Tribunal may proceed to make a decision on the review without taking any further action.

10. In these circumstances, the fact that the Tribunal proceeded to a hearing without the applicant being present cannot amount to jurisdictional error on the part of the Tribunal.  Accordingly, the application to the Federal Magistrate's Court was out of time and, there being no jurisdictional error in the Tribunal's decision or bad faith, the Tribunal's decision was a privative clause decision.  The learned Magistrate was accordingly correct in finding that he had no jurisdiction to hear the application.  It follows that there is no purpose to be served in my granting an application for leave to appeal against the Magistrate's decision.

11. I would accordingly dismiss the application for leave.  I would order the applicant to pay the Minister's costs of the application.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             8 June 2005

For the applicant:	The applicant appeared for himself
For the respondent:	A Nanson
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	3 June 2005
Date of judgment:	3 June 2005