SZGMW v Minister for Immigration and Citizenship

[2007] FCA 312

FEDERAL COURT OF AUSTRALIA

SZGMW v Minister for Immigration and Citizenship [2007] FCA 312

SZGMW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2179 OF 2006

CONTI J
7 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2179 OF 2006

BETWEEN:

SZGMW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	28 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘Minster for Immigration and Citizenship’.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of the proceedings. 

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 2179 OF 2006

BETWEEN:

SZGMW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE:	7 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of Federal Magistrate Smith delivered 18 October 2006, whereby his Honour dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) handed down 28 November 2003.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as then designated) to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of the People’s Republic of China (‘the PRC’) who arrived in Australia on 18 October 2002.  On 4 November 2002, a migration agent acting on behalf of the appellant submitted an application for a protection visa.  By her application the appellant claimed to have a well-founded fear of persecution because she had practised the Falun Gong religion whilst living in the PRC.  The appellant further claimed in a separate statement that she had resided near the place in China where Master Li Hongzhi gave his first demonstrations, and further that she attended his demonstrations and got to know other Falun Gong practitioners.  The appellant complained that the government of the PRC has for some years suppressed the practice of Falun Gong and that she feared being put into prison for her beliefs if returned to China. 

3. On 2 December 2002, the appellant submitted a form of Notification of Incorrect Answers, whereby she stated that when she arrived in Australia, she did not have a residential address and was confused.  The delegate proceeded to reach a decision on the application as it had by then become valid as from 2 December 2002 following upon the provision of her current address.  On 20 December 2002 a delegate of the Minister refused the appellant’s application for a protection visa, and on 14 January 2003, the appellant applied to the Tribunal for a review of that decision.  On the application form which she lodged for the purposes of that application, the appellant listed as her residential address her mailing address and the contact details of her authorised recipient Mr Belbruno.  

4. On 11 September 2003 the Tribunal sent a hearing invitation letter to the appellant’s authorised recipient Mr Belbruno, which outlined that it was unable to make a decision in her favour based alone on the information placed by her before the Tribunal.  That letter was addressed to the appellant’s postal address, that being the agent’s postal address, as well as the residential address recorded in that application.  The letter invited the appellant to attend a Tribunal hearing in Melbourne on 3 November 2003.  The Tribunal did not receive a response from the appellant to the invitation. By a memorandum dated 30 October 2003, the Tribunal observed that the appellant’s authorised recipient Mr Belbruno was contacted by telephone on behalf of the Tribunal.  The Tribunal was informed by Mr Belbruno to the effect that he had been unable to communicate with the appellant and did not think she would attend the hearing.  The appellant did not attend the hearing at the nominated date and time or at all.

5. As the appellant failed to attend the hearing, the Tribunal proceeded to deal with the appellant’s application for review of the decision of the Minister’s delegate pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal outlined the matters upon which it sought to question the appellant, as well as indicating it would have wanted to discuss matters concerning independent country information with the appellant had she attended the Tribunal hearing. Without the opportunity to fully examine the purported claims of the appellant, the Tribunal indicated that it was not satisfied on the evidence placed before it that the appellant was a Falun Gong practitioner or that she would be in future, or that she had criticised the PRC government or that she had experienced or would experience the problems that she claims.

6. By an amended application filed in the Federal Magistrates Court on 13 September 2005, the appellant sought review of the decision of the Tribunal, claiming thereby that she did not attend the hearing before the Tribunal because she had been misled by her migration agent.  The appellant asserted that she had been subjected to procedural unfairness giving rise to jurisdictional error, citing thereby O’Sullivan v Repatriation Commission (2003) 74 ALD 407 at [42]-[59].

7. The written submissions of the appellant provided to the Federal Magistrates Court raised three issues as follows:

   (i)whether the appellant was deprived of the opportunity of a hearing before the Tribunal as a result of ‘wrongful conduct’ by her migration agent and in the circumstances whether there was jurisdictional error inherent in the decision of the Tribunal;

   (ii)whether s 422B of the Act applied adversely to the Tribunal’s decision; and

   (iii)whether relief should be refused on the basis of the delay in filing the appellant’s application for judicial review.

8. The Federal Magistrate found that the appellant had authorised her agent Mr Belbruno to receive correspondence on her behalf and otherwise to act on her behalf.  However his Honour was unable to make any finding to the effect that the appellant’s prior application to the Tribunal was invalid for want of authority, since the Tribunal received no communication which would have caused it to doubt the authorisation relevantly of her agent.

9. The Federal Magistrate further found that the Tribunal had invited the appellant to a hearing and moreover that the invitation had informed her that if she did not attend the Tribunal hearing, the Tribunal might make a decision on her case without further notice. His Honour further found that pursuant to s 441C(4) of the Act, the appellant and her agent were deemed to have received the invitation to the Tribunal hearing, and the Tribunal was duly authorised to proceed to consider and to resolve the appellant’s application by reason of s 426A of the Act.

10. The matter of the appellant’s delay in making application for judicial review was next considered by the Federal Magistrate, and his Honour found it unnecessary to investigate what he considered to be the contradictory and obscure testimony given by the appellant by way of purported explanation of the relevant delay, since his Honour was satisfied that the Tribunal’s decision was unaffected by jurisdictional error.

11. In relation to the written submissions of the appellant made to the Federal Magistrate, his Honour considered that on the basis of the evidence placed before the Federal Magistrates Court, he was unable to make any finding to the effect that the migration agent was responsible for the appellant not having received actual notice of the hearing.  The Federal Magistrate considered that the appellant tailored her evidence without regard to the truth of what had actually and relevantly occurred, and that it was quite possible that the appellant did not inform the migration agent of her contact details at least by the time of the hearing invitation.

12. Referring to recent Full Federal Court authority of relevance, Smith FM further found that the operation of s 426A(1) of the Act, when read with s 422B thereof, rendered irrelevant whether or not actual notice of a hearing invitation had been received or what were the purported reasons for not receiving any such notice. The contentions of the appellant’s counsel were therefore rejected by his Honour.

    The Federal Court proceedings

13. The appellant filed a notice of appeal to the Federal Court on 6 November 2006, which contained the following grounds of appeal:

    (i)there was no evidence or other materials to justify the making of the decision. The Chinese Government not only prosecutes leaders and organisers of Falun Gong, but normal Falun Gong practitioners;

    (ii)the Tribunal failed to consider the whole of the matter; and

    (iii)the Tribunal failed to consider that the appellant still practiced the Falun Gong religion after she arrived in Australia.

14. The Minister submitted that none of those grounds contained in the appellant’s notice of appeal were raised before the Federal Magistrate and that the appellant required leave to rely on reasons for argument not raised in the Federal Magistrates Court below.  It was further submitted by the Minister that such leave would only be granted where it would be expedient and in the interests of justice so to do, the Minister citing NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [154]-[175] (Madgwick J).

15. The Minister also contended that each of the grounds set out in the appellant’s notice of appeal had no reasonable prospect of success and effectively invited the Court to review the merits of the Tribunal’s decision on the facts.  The appellant’s first ground of appeal, which asserted that there was no evidence or other materials to justify the making of the Tribunal’s decision, was said by the Minister to be misconceived as the Tribunal did not make any positive findings of fact that might be said to require evidence or other material in support.  Rather the Tribunal found that it was unable to be satisfied, on the basis of the limited information available, that the appellant was a person to whom Australia owed protection obligations.  There is force in that submission made by the Minister.

16. In relation to the second ground of appeal, the Minister acknowledged that as a general proposition, the Tribunal is obliged to give ‘proper, genuine and realistic consideration to the merits of the case’ that it is reviewing, and that a failure to meet such an obligation will give rise to a jurisdictional error: SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39]. However the Tribunal below plainly set out in its decision the nature of the appellant’s claims and the limited information in support of those claims which had been provided by the appellant. I agree with the Minister’s contention that there is nothing in the Tribunal’s reasons for decision to suggest that the Tribunal failed to give proper, genuine and realistic consideration to the merits of the appellant’s application for review of the decision of the Minister’s delegate.

17. In the third and final ground of appeal, the appellant asserted that the Tribunal had failed to consider that the appellant had practised Falun Gong since arriving in Australia.  The Minister submitted, rightly in my opinion, that such a ground must fail for a number of reasons. First, the appellant did not provide any information regarding her Falun Gong activities in Australia prior to the Tribunal hearing.  The application for a protection visa in particular did not contain any information regarding such activities, and the appellant did not provide any further information in support of her application for review of the decision of the Minister’s delegate to the Tribunal.  Secondly, the Tribunal’s reasons show that one of the issues that the Tribunal wished to examine at the hearing was whether the appellant was a ‘devoted follower and understood the principles, tenets and exercises of Falun Gong’. The Minister submitted that had the appellant attended the hearing, a consideration of that issue could have included the appellant’s activities in Australia. Thirdly, any consideration of the appellant’s activities in Australia would have been subject to s 91R(3) of the Act, which, in the context of determining whether a person has a well-founded fear of persecution, requires the Tribunal to disregard any conduct engaged in by the person in Australia unless the person satisfies the Tribunal that the person engaged in that conduct otherwise than for the purpose of strengthening his or her claim to be a refugee. Therefore even if the appellant had put before the Tribunal information about her activities in Australia, so the submission continued, the Tribunal would have been required to disregard that conduct unless it was satisfied that it was not engaged in for the purpose of strengthening her claims.

18. Moreover as observed by the Minister, the appellant’s notice of appeal did not seek to challenge the primary judge’s findings regarding the operation of s 426A and the correctness or otherwise of the Tribunal’s decision to hear the application in the absence of the appellant. I am of the opinion that his Honour made no material error in making those findings.

19. In summary, I would conclude that the Minister’s submissions advanced to the Court on the present appeal were plainly correct and I can find no error in the reasons for decision of the Federal Magistrate below or in the prior decision of the Tribunal.  Accordingly, the appeal is dismissed and the appellant is ordered to pay the Minister’s costs of the appeal.

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

Associate:

Dated:        7 March 2007

The Appellant appeared in person.
Counsel for the Respondent:	Mr S Free
Solicitor for the Respondent:	DLA Phillips Fox Lawyers
Date of Hearing:	28 February 2007
Date of Judgment:	7 March 2007