SZFPM v Minister for Immigration and Multicultural Affairs

[2006] FCA 1626

FEDERAL COURT OF AUSTRALIA

SZFPM v Minister for Immigration and Multicultural Affairs [2006] FCA 1626

SZFPM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD1450 OF 2006

STONE J
22 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1450 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFPM Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	STONE J
DATE OF ORDER:	22 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be added as the second respondent to this appeal.

2.The appeal be dismissed.

3.The appellant pay the first 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	NSD1450 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFPM Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	STONE J
DATE:	22 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant claims to be a citizen of China and to have been persecuted by the Chinese government for his practice of Falun Gong.  His application for a protection visa was rejected by a delegate of the first respondent on 30 August 2004.  The appellant applied for a review of this decision. 

2. In his application for review the appellant did not provide any information beyond that contained in his visa application.  He did not give any more details of his claimed persecution but merely repeated part of what he had said in that application.  He claimed that he learned Falun Gong from his uncle, who has since been imprisoned for its practice.  The appellant claims that in 2000 he was detained and “tortured cruelly” by the Chinese authorities, who were seeking further information about the Falun Gong organisation.  In 2004, Chinese police arrested several Falun Gong members at the house of a friend of the appellant.  The appellant claimed to have been “lucky to escape” and to have left China for Australia immediately. 

3. The Refugee Review Tribunal reviewed the appellant’s files and was not satisfied that it could make a favourable decision on the basis of the information in those files alone.  On 5 November 2004 the Tribunal wrote to the appellant inviting him to give oral evidence and make submissions in support of his application at a hearing before the Tribunal on 2 December 2004.  The letter was sent by registered mail to the appellant’s address for service with a copy to his residential address as set out on his application for review.  In its reasons the Tribunal says:

   ‘No response was received from the applicant and the letter was not returned to the Tribunal.’

   Presumably the Tribunal was referring to the letter sent to the appellant’s address for service not being returned as the appeal book contained a copy of the envelope sent to the appellant’s residential address.  This envelope was marked as having been returned to sender because the addressee was unknown at that address. 

4. The Tribunal continued:

   ‘The Applicants adviser’s office was telephoned by a Tribunal staff member and a message requesting the adviser to contact the Tribunal was left on two occasions.  There has been no further contact or information from the Applicant or the adviser.’

5. This latter comment is puzzling as the application for review states that the appellant does not have an adviser. Moreover the Tribunal’s checklist of actions where there is no reply to a hearing invitation also notes that the appellant has no adviser. In any event, the appellant failed to attend his scheduled Tribunal hearing. The Tribunal proceeded pursuant to s 426A of the Migration Act 1958 (Cth) to determine the appellant’s application without taking further steps to enable the appellant to appear before it.

6. The Tribunal found the appellant’s claims vague and lacking in detail, in particular in relation to his detention and torture.  On the scant evidence before it, the Tribunal did not accept that the appellant was a Falun Gong practitioner or that he had a well-founded fear of persecution in China. 

7. The appellant applied to the Federal Magistrates Court for judicial review of this decision.  The Federal Magistrate noted that the invitation sent to the appellant’s residential address was returned to sender and that the invitation sent to the appellant’s address for service was not returned, although the appellant claimed that he had not received the hearing invitation.  His Honour also referred, without comment, to the Tribunal’s statement about telephone calls to the appellant’s adviser. 

8. The Federal Magistrate referred to s 441C of the Act, which deemed the appellant to have received the invitation to the hearing within 7 days of being sent.  His Honour held that “this deeming provision is not displaced by the fact that one of his invitations was returned” and that the appellant was adequately notified of the hearing.  Consequently there was no jurisdictional error in determining his application in his absence. 

9. The remainder of the appellant’s claims were dismissed as baseless; in particular his Honour referred to allegations that the Tribunal was biased; that it erred in not making a finding that the appellant faced persecution in China, that it failed to provide particulars of independent country information; and that the Tribunal failed to consider the appellant’s claims.  Accordingly, his Honour found that the Tribunal had not made any jurisdictional error in affirming the delegate’s decision.

10. The appellant appealed from the Federal Magistrate’s decision on grounds which can be summarised as follows:

    1.the Tribunal did not give adequate particulars of independent (country) information, that, presumably, it took into account in assessing the application for review;

    2.the Tribunal failed to observe the requirements of the Migration Act; and

    3.the Tribunal and the Federal Magistrate failed to consider the appellant’s claims.

11. To the extent that the above grounds of appeal are directed towards the decision of the Tribunal, they are misdirected.  In any event they are plainly baseless.  As the Federal Magistrate noted, the Tribunal did not refer to any independent country information in its decision.  Insofar as the second ground above is intended to refer to the Tribunal’s decision to proceed in the appellant’s absence, the learned Federal Magistrate was clearly correct in his approach.  Section 425 required the Tribunal to invite the appellant to attend the hearing and s 425A provided the formal specifications of the notice of invitation to appear.  In particular, s 425A(2) required that notice of the hearing be given in one of the means specified in s 441A.  The Tribunal fulfilled these requirements by sending an invitation in the correct form to the appellant’s last known residential address and to his address for service.  At the hearing of this appeal the appellant claimed from the bar table that he did not receive the invitation.  Whether or not this is so does not, in the light of s 441C affect the Tribunal’s right to proceed to determine the appeal.

12. The Tribunal provided adequate notice within the requirements of the Migration Act and accordingly was entitled to proceed pursuant to s 426A in the manner it did. There is nothing to suggest that either the Tribunal or the Federal Magistrate failed to consider the appellant’s claims. Although the Tribunal’s reference to the appellant’s adviser is puzzling (see [4] - [5] above) it does not alter the fact that the legal requirements were met. The Tribunal is not obliged to telephone applicants’ advisers so it is not necessary to resolve the issue.

13. Accordingly, the appeal is dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:        27 November 2006

Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondent:	Ms S McNaughton
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 November 2006
Date of Judgment:	22 November 2006