SZFXZ v Minister for Immigration and Multicultural Affairs

[2006] FCA 808

FEDERAL COURT OF AUSTRALIA

SZFXZ v Minister for Immigration and Multicultural Affairs [2006] FCA 808

MIGRATION – appeal from orders made by Federal Magistrate dismissing application for review of decision of Refugee Review Tribunal affirming decision of Minister’s delegate not to grant appellant protection visa – where appellant invited to attend hearing of Tribunal – where appellant indicated that she did not wish to attend hearing – where appellant claimed that she later informed Tribunal that she had changed her mind and wished to attend hearing – whether Federal Magistrate erred in rejecting evidence of appellant – whether Federal Magistrate erred in refusing to find that Tribunal fell into error by proceeding without affording appellant hearing – whether Federal Magistrate erred in refusing to find that Tribunal committed jurisdictional error – held, no error in reasoning of Federal Magistrate – appeal dismissed.

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 5, 425, 425A

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 referred to

SZFXZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 129 OF 2006

BESANKO J
30 JUNE 2006
ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 129 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFXZ
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BESANKO J

DATE OF ORDER:

30 JUNE 2006

WHERE MADE:

ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.        The words ‘and Indigenous’ be removed from the title of the first respondent.

2.        The appeal is dismissed.

3.        The appellant is to 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
SOUTH AUSTRALIA DISTRICT REGISTRY	NSD 129 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFXZ
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BESANKO J
DATE:	30 JUNE 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate. The Magistrate had before him an application by the appellant under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 25 February 2005. On 17 January 2006 the Magistrate made orders joining the Tribunal as a respondent, dismissing the appellant’s application and requiring her to pay the first respondent’s costs.

2. The appellant is a citizen of the People’s Republic of China. She arrived in Australia on 11 September 2004. On 8 October 2004, the appellant applied for a protection (Class XA) visa, claiming that she had a well-founded fear of persecution because of her religious belief in Falun Gong and that she therefore fell within the terms of the Refugees Convention as amended by the Refugees Protocol (‘the Convention’): s 5 of the Migration Act 1958 (Cth) (‘the Migration Act’). On 11 November 2004, the application was refused by a delegate of the first respondent. On 8 December 2004, the appellant applied to the Tribunal for a review of the delegate’s decision.

3. The issues raised on the appeal are such that it is necessary to examine the events from 8 December 2004 to 25 February 2005, when the Tribunal handed down its decision.

4. By letter dated 30 December 2004, the District Registrar of the Tribunal wrote to the appellant advising her that it had considered the material before it in relation to her application, but was unable to make a decision in her favour on that information alone.  The appellant was invited to appear at a hearing of the Tribunal on 23 February 2005.  The letter enclosed a form that the appellant could complete indicating whether she wished to attend a hearing of the Tribunal on 23 February 2005. 

5. The appellant responded to the letter and form on 28 January 2005, indicating on the form that she did not wish to attend a hearing of the Tribunal. Thereafter, the Tribunal proceeded as if the appellant did not wish to attend a hearing.

6. By letter dated 7 February 2005, the District Registrar of the Tribunal advised the appellant that the Tribunal had made its decision and that the decision would be handed down on 25 February 2005.  In its decision handed down on that date, the Tribunal said:

   ‘On 30 December 2004, the Tribunal wrote to the applicant, advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 23 February 2005.  On 31 January 2005, the applicant responded to the hearing invitation by noting that she did not wish to attend the hearing.  She also consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.

   This matter has therefore been determined on the evidence available to the Tribunal.’

7. As to the merits of the application for review, the Tribunal reached the conclusion that, on the basis of the available information, it could not be satisfied that there was a real chance of what it called ‘Convention-related harm’ occurring to the appellant in the reasonably foreseeable future, and that therefore it could not be satisfied that the appellant had a well-founded fear of persecution for a Convention-related reason.  The Tribunal affirmed the decision of the delegate not to grant a protection visa.

8. Before the Magistrate, the appellant contended that she had in fact changed her mind after completing the form on 28 January 2005 and that she had decided that she did wish to appear at a hearing.  She said that she had contacted the Tribunal on 4 February 2005 and advised a male person of that fact.  She asserted that the Tribunal erred in proceeding without affording her a hearing and that that error was a jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293.

9. Under s 425(1) of the Migration Act, the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425(2) provides that subsection (1) does not apply if, inter alia, the applicant consents to the Tribunal deciding the review without the applicant appearing before it.

10. Before the Magistrate, the assertion that the appellant contacted the Tribunal on or about 4 February 2005 was in dispute. He decided that the appellant did not contact the Tribunal on or about that date and that by reason of her response of 28 January 2005 the Tribunal was entitled to proceed without hearing from the appellant in terms of s 425(1) of the Migration Act. In view of his finding of fact, the Magistrate did not need to consider whether, had he accepted the appellant’s version of events, the Tribunal had committed an error going to jurisdiction. The only remaining question for the Magistrate was whether the Tribunal had otherwise committed a jurisdictional error and he had decided that it had not.

11. The first question is whether the Magistrate erred in finding that the appellant did not contact the Tribunal on or about 4 February 2005 and advise it that she wished to appear at a hearing of the Tribunal.

12. The Magistrate had before him an affidavit and brief oral evidence from the appellant, who was cross-examined by counsel for the respondent, and an affidavit of Jonathon Willoughby-Thomas, the District Registrar of the Sydney registry of the Tribunal.

13. The appellant said she contacted the Tribunal on the morning of 4 February 2006 with the assistance of a friend.  That friend has since returned to China and was not available to give evidence before the Magistrate.  The appellant or her friend spoke to a male person, whom she advised that she wished to attend the hearing of the Tribunal.  The male person said that he would make a note of the conversation and have someone call her back.  He told the appellant that she should call back if she did not hear from the Tribunal.  The appellant said that she did not hear from the Tribunal and she did not call back ‘due to language barrier’.

14. In his affidavit, Mr Willoughby-Thomas set out details of the gender of those persons who were rostered on the switchboard during the week of Monday 31 January 2005 to Friday 4 February 2005 and of the Tribunal’s system for recording communications with it.  On 4 February 2005, the two persons rostered on the switchboard were female.  The only morning of that week on which a male person was rostered on the switchboard was Tuesday 1 February 2005.  Mr Willoughby-Thomas said that all officers and employees of the Tribunal work in accordance with a standard operating procedure when receiving telephone calls from, or on behalf of, applicants and that, in accordance with that procedure, all communications are ordinarily documented in the Tribunal’s electronic case management system, otherwise known as ‘CMS’.  The CMS file notes do not record the appellant, or anyone on her behalf, having contacted or spoken to anyone at the Tribunal on 4 February 2005 or any other date.

15. After referring to the appellant’s evidence, which was given through an interpreter in the Mandarin language, and his opportunity to observe her demeanour in the witness box, the Magistrate said that he was not satisfied that the appellant’s evidence was credible.  He said that her evidence appeared to be implausible and speculative, and that her claims that someone else may have answered the phone and not recorded the message appeared to be in ‘total contradiction’ to the procedures referred to in the affidavit of Mr Willoughby-Thomas.  The Magistrate said that there was no evidence before him to show that the procedure of the Tribunal was ‘in any way faulty’.  He said that he did not accept the appellant’s evidence and was not satisfied that she had proved to the Court that she did telephone the Tribunal to advise it that she had changed her mind about appearing at a hearing.

16. The Magistrate was entitled to reject the appellant’s evidence.  No doubt the fact that she gave evidence through an interpreter was a matter to be taken into account.  Furthermore, the question was not necessarily whether the appellant had shown that the Tribunal’s procedure was ‘in any way faulty’, but, at the same time, the fact that, on the face of it, the procedure contradicted her evidence was undoubtedly a matter to be taken into account.  The Magistrate was entitled to take into account the matters he identified in his reasons, including the appellant’s demeanour, the Tribunal’s procedure, the fact that her friend did not give evidence and the fact that her evidence was implausible.  In assessing whether the appellant’s evidence should have been accepted, it is relevant for me to note, and this is perhaps what the Magistrate meant when he said that he found the appellant’s evidence implausible, that the appellant was not able to explain why she did not receive the letter dated 7 February 2005 or why, had she contacted the Tribunal as she asserted, she did not attend at the premises of the Tribunal on 23 February 2005.

17. The Magistrate did not err in refusing to find that after 28 January 2005 the appellant contacted the Tribunal to request a hearing, and in finding that in those circumstances the Tribunal was entitled to proceed as it did.

18. The Tribunal was entitled to proceed in the absence of the appellant and, in those circumstances, the Tribunal’s decision must stand unless it committed a jurisdictional error.  The Tribunal said that the appellant had made a series of general and vague claims that were lacking in important details.  There were no details of her Falun Gong beliefs or practices.  There was no corroborative evidence and the appellant did not appear at the hearing.  The Tribunal said that it could not be satisfied that the appellant was a Falun Gong believer or that she practised its precepts.  It could not be satisfied that she suffered the harm that she alleged.  In those circumstances, it could not be satisfied that the appellant had a well-founded fear of persecution for a Convention-related reason.  There is no reason to think that the Tribunal fell into error in making those findings, let alone a jurisdictional error.

19. The appeal must be dismissed and the appellant must pay the first respondent’s costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:            30 June 2006

Appellant:	The appellant appeared in person.
Counsel for the Respondent:	Ms S McNaughton
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	9 May 2006
Date of Judgment:	30 June 2006