SZHBK v Minister for Immigration and Multicultural Affairs

[2006] FCA 805

FEDERAL COURT OF AUSTRALIA

SZHBK v Minister for Immigration and Multicultural Affairs [2006] FCA 805

MIGRATION – whether former s 425 of the Migration Act required more by way of notice of a proposed Tribunal hearing than compliance with former s 426 – whether shortcomings of an adviser to an applicant for review can affect the validity of a Tribunal decision on such a review – refusal of constitutional writ relief on discretionary grounds

Held:
(a)       Tribunal’s decision unaffected by jurisdictional error where notice of proposed hearing reached the appellant’s adviser and the appellant failed to appear at the appointed time and place.
(b)       It would be inappropriate to interfere with the Federal Magistrate’s refusal to order constitutional writ relief on discretionary grounds even if jurisdictional error was established, which was not the case in this matter.

Migration Act 1958 (Cth) ss 425, 426

Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243
SZAXF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 496
Freeman v Health Insurance Commission (2004) 141 FCR 129
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [80]

SZHBK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR
NSD 198 of 2006

GRAHAM J
19 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 198 of 2006

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHBK
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

GRAHAM J

DATE OF ORDER:

19 JUNE 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS:

1.That the appeal be dismissed.

2.That the appellant pay the first respondent’s costs.

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 198 of 2006

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHBK
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	19 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, who has been identified for the purposes of these proceedings as SZBHK, was born in China in about 1956.  On 30 April 1997 a passport was issued to him by the People's Republic of China.  On 6 August 1997 he secured a visa to enter Australia on a short-term basis.  He departed from Shanghai on or about 25 August 1997 and arrived in Australia on or about 26 August 1997.  On 26 September 1997 he applied for a Protection Visa (866).  No grounds were specified in the application for the visa but it would appear to have been accompanied by a typed two page document entitled ‘APPLICATION FOR REFUGEE STATUS’.

2. That document referred to what was said to have been persecution of the appellant's father in 1957 for expressing his opinions as a member of a right wing party.  The appellant indicated that as a son of a right wing party member he had been beaten and discriminated against.  This was said to have hurt him deeply in his heart.  No particulars of the circumstances of his beating or discrimination were provided.  The appellant referred to the fact that in 1978 the cultural revolution ended and China was ready to open its doors to the world.

3. Mention was made of the ‘China Modern democrat’ and it may be inferred that the appellant was a supporter of that movement.  It is said that in 1986, when the appellant was about 30 years of age, he received ‘checking and suppressing’.  The appellant says that in 1989 he went to Beijing and made contact with student representatives within a body known as the ‘Beijing Workers’ Self-government’.  After the massacre, which I would understand to have been a reference to the Tiananmen Square massacre of 1989, the appellant says that he escaped from Beijing to Fushuen and that he was dismissed from the company by which he was employed.

4. He says that in 1994 he joined a ‘China Democracy, Human Rights Federation’ body headquartered in the United States of America.  He says that from that time onwards he ‘desired to escape China’.  He says, without providing any particulars whatsoever:

   ‘… my experience tells my [sic] that if I go back to China, I would be arrested and Jailed.’

5. The application for a visa nominated an address in Enmore as the current residential address in Australia of the appellant.  The application was accompanied by a document described as ‘APPOINTMENT OF PERSON TO ACT AS AGENT’ which had been marked to indicate that all correspondence relating to the appellant's application was to be sent to the agent and if any information, additional documentation or action was required on the appellant's case the agent was to be contacted.  The nominated agent was Chun George Ao whose address was 340/401 Sussex Street, Sydney 2000.

6. The ‘APPOINTMENT OF PERSON TO ACT AS AGENT’ was signed by the appellant, as was a declaration forming part of the visa application which stated:

   ‘I declare that:

   ·The information I have supplied on or with this form is complete, correct and up-to-date in every detail

   ...

   ·I undertake to inform the Department of Immigration and Ethnic Affairs if I change my address for more than 14 days while my application is being considered.

   ...’

7. By letter dated 13 October 1997 directed to the appellant at the address provided by him as his residential address, with a copy to his agent at the nominated address, the appellant was advised that his application for the grant of a protection visa had been refused. 

8. On 12 November 1997 an Application for Review was lodged with the Refugee Review Tribunal (‘the Tribunal’).  The Application for Review again nominated Chun George Ao of 340/401 Sussex Street, Sydney, 2000 as the appellant's adviser.

9. On 13 November 1997 the Tribunal wrote to the appellant at his nominated ‘home address’ in Enmore, with a copy to Chun George Ao at 340/401 Sussex Street, Sydney, NSW, 2000, acknowledging receipt of the Application for Review. 

10. On 13 October 1998 the Tribunal wrote again to the appellant at his nominated ‘home address’ advising that the Tribunal was unable to make a favourable decision on the material relating to his application alone.

11. A copy of that letter would appear to have been sent to 340/401 Sussex Street, Sydney, NSW, 2000.  For some unexplained reason the copy was directed to ‘K & Z Marketing Pty Ltd’ at the address in Sussex Street.  On 20 October the copy of the letter addressed to the appellant at his Enmore address was returned to the Tribunal marked ‘no such person at address’.  However, it is clear that the copy directed to the Sussex Street address reached the appellant's adviser.

12. On 3 November 1998 the adviser rang the Tribunal to indicate that the appellant had not received his offer of hearing letter.  It would appear that mention was made of a change of address and the adviser was asked to cause notice of the change of address to be provided. 

13. On 6 November 1998 the Tribunal again wrote to the appellant at the address provided by him in Enmore.  That letter commenced:

    ‘We have received your "Response to Hearing Offer" telling us that you want to come to a hearing of the Tribunal to give oral evidence.’

14. The letter nominated a hearing date and time which was Wednesday, 9 December 1998 at 9 am.  A copy of the letter advising the appellant of this hearing date was also sent to the address 340/401 Sussex Street, Sydney, NSW, 2000.  Again, for an unexplained reason, it was also addressed to ‘K & Z Marketing Pty Ltd’. 

15. The letter addressed to the appellant at his Enmore address was returned to the Tribunal on 12 November 1998.

16. On 23 November 1998 the Tribunal contacted the appellant's adviser to inform him that the letter sent to the appellant at his nominated Enmore address had been returned and that the Tribunal had not been told of any change of address in writing.  The adviser indicated that he had difficulty in contacting the appellant as the appellant was ‘always moving about and not informing him of any changes of address’.

17. The Tribunal informed the adviser that the appellant had an obligation to inform the Tribunal of any change of address and that if the Tribunal did not hear from the appellant it would proceed to make a decision on his appeal on the material before it. 

18. It seems clear that no response was provided. 

19. The appellant did not appear before the Tribunal on 9 December at the specified time and place.  Accordingly the Tribunal proceeded to decide the matter without the benefit of the appellant's assistance and by letter dated 10 December 1998 the Tribunal forwarded the decision and reasons for decision of the Tribunal, which was to affirm the decision of the Minister's delegate not to grant a protection visa, to the appellant at his Enmore address and to the appellant’s adviser at K & Z Marketing Pty Ltd at 340/401 Sussex Street, Sydney, NSW, 2000. 

20. It is unnecessary in these reasons to deal with the Tribunal's decision.  The Tribunal was not satisfied that the applicant before it was a political activist at risk of attracting the adverse attention of the authorities in the People’s Republic of China.  It was not satisfied that he had a well-founded fear of persecution in China, due to his political opinion, were he to return.

21. When addressing the Court, the appellant was asked to explain why no action was taken in respect of the decision of the Tribunal for over six years.  The appellant's response was to the effect that it was merely his mistake.  He attributed his default to his difficulties with the English language and his understanding of the laws in Australia.  He also sought to visit blame on his adviser.  He asserted that he was not permitted to see the documents which his adviser held as they were secret documents belonging to the adviser's office.  This is inconsistent with the case that he presented to the Federal Magistrate to which I will shortly refer.

22. On 1 September 2005 the appellant filed an application in the Federal Magistrates Court of Australia for constitutional writ relief in respect of the decision of the Tribunal.  The grounds set out in that application were as follows:

    ‘(1)I’m a citizen of China.  If I go back to my country, I will be risk of suffering persecution, within the meaning of the 1951 Convention relating to the status of (RRT) Refugees and the 1967 protect [sic] relating to the status of Refugees.

    (2)Member of RRT failed to understand my claims and failed to consider relavant [sic] matters.  Further particulars to be provided.

    (3)I seek relief under s38B of the Judiciary Act 1903 (Cth) on the grounds that the tribunal, at the decision to affirm the Respondend's [sic] decision not to grant me a protection visa in that it; I was not accorded natural justice.

    (4) The respondent refused to grant my protection visa application without any proper grounds and proper investigation.’

23. The application for review came before the Federal Magistrates Court on 8 December 2005 and was decided by the Federal Magistrate adversely to the appellant on 19 December 2005, although his Honour did order that his orders should not take effect until 31 January 2006.  He made orders for costs against the appellant and on 18 January 2006 delivered supplementary reasons for judgment affirming his proposed orders in respect of costs.

24. In the reasons for judgment of the Federal Magistrate reference was made to the appellant's desire to inspect his file as held by his adviser.  He said in his statement that his adviser said that the documents were hers and that the appellant could only look at them in her office, but could not take them away.  This assertion does not sit comfortably with the submission of the appellant before me that his adviser had said that the documents were secret documents which belonged to the adviser's office and which, as I understood it, he was saying he was not allowed to see. 

25. The learned Federal Magistrate comprehensively reviewed the Tribunal's decision and was unable to detect any jurisdictional error on the Tribunal's behalf.  His Honour found that it was probable that the appellant’s agent was sent a copy of the letter appointing the hearing before the Tribunal on 9 December 1998.  His Honour's view was confirmed by the terms of the appellant's written account of his dealings with his advisers where mention was made of his attendance upon his advisers ‘one day after his RRT hearing was scheduled’ and of a conversation where the adviser inquired of the appellant as to why he did not go to the Tribunal hearing.

26. His Honour concluded that the appellant was not unfairly denied a reasonable opportunity to appear before the Tribunal.  His Honour found that the appellant's absence from the hearing before the Tribunal was, ‘… due to his own omissions.’ 

27. The appellant appealed from the decision of the learned Federal Magistrate by a notice of appeal, which has been recorded as having been filed in this Court on 8 February 2006.  The grounds specified in the notice of appeal were as follows:

    ‘a.The Tribunal member refused to accept that the applicant have well founded fear of persecution

    b.Tribunal failed to justify the evidence provided by applicant

    c.Tribunal failed to determine that there were communicating difficulties between RRT and applicant’

28. The first ground of appeal seeks a merits review which is not available in this Court.  The second ground of appeal is in the circumstances of this case meaningless as the appellant readily acknowledged that he provided no evidence to the Tribunal.  The third ground is without substance as there was no default on the part of the Tribunal which may have justified a finding that there were communication difficulties between the Tribunal and the appellant. 

29. There is no reason to doubt the correctness of the decision of the learned Federal Magistrate in dismissing the application for constitutional writ relief.

30. Notwithstanding that the matter has not been raised in the notice of appeal, it would appear that the appellant is now urging that he was let down by his own agent in a way which would warrant him having a second chance to present a case for review to the Tribunal.  Amongst other things he says that he told his story to his adviser but never saw any of the documents which were prepared by the adviser, they having been signed by him in blank and completed later.  It does not seem to me that the shortcomings of the appellant's adviser, if any, can properly be visited upon the Tribunal.

31. At the time of the appellant's application for review to the Tribunal, namely 12 November 1997 through to the determination of that application by the Tribunal on 10 December 1998, ss 425 and 426 of the Migration Act 1958 (Cth) relevantly provided:

    ‘425(1)           Where section 424 does not apply, the Tribunal:

    (a)must give the applicant an opportunity to appear before it to give evidence;  and

    ...

    426(1)           Where section 424 does not apply, the Tribunal must notify the applicant:

    (a)that he or she is entitled to appear before the Tribunal to give evidence;  and

    ...’

32. In Uddin v Minister for Immigration and Multicultural Affairs (‘Uddin’) (1999) 165 ALR 243 at [22], Hely J described the two provisions to which I have just referred as containing ‘… cumulative requirements in the sense that the giving of a notice under s 426 will not necessarily exhaust the s 425 obligation …’. On the facts of that case his Honour did not find that the requirements of s 425 had been satisfied (see [19] - [20] and [30] - [31]).

33. In SZAXF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 496, Stone J distinguished Uddin, saying at [26]:

    ‘… I have real doubts that, properly construed, the Migration Act as it was at the relevant time required the Tribunal to refrain from making a decision if, for reasons beyond its control, it was unable to contact an applicant in order to notify him or her of the opportunity afforded by s 425.’

34. It is important to remember that proceedings before the Tribunal are inquisitorial rather than adversarial.  The Tribunal member conducting an inquiry is obliged to be fair.  However, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant.  In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee within the meaning of the Refugees Convention had been made out.

35. The Tribunal was not obliged to prompt and stimulate an elaboration which the appellant may have chosen not to embark upon. 

36. In the context of administrative decision making, there would not appear to be support in Australia for the view that problems which arise in the conduct of the case of the person to be the subject of the decision through their mistaken view or that of their advisers could amount to procedural unfairness.  There would seem to be strong policy grounds why this should not be the case (per Kiefel J in Freeman v Health Insurance Commission (2004) 141 FCR 129 at [52]).

37. In my opinion, s 425 did not impose any greater obligation upon the Tribunal in terms of notifying an applicant of an intended hearing, than that found in s 426 itself. I am satisfied that s 426 was duly complied with by the Tribunal in the circumstances of the present case. It does not seem to me that there is any proper basis for disturbing the findings of the learned Federal Magistrate in respect of the notification of the intended hearing date to the appellant. In these circumstances, there is no proper basis for departing from the findings and conclusions of the learned Federal Magistrate.

38. In his Honour's reasons he indicated that even if he had found jurisdictional error, he would have refused relief on discretionary grounds (see [2005] FMCA 1834 at [26] - [29]). Constitutional writ relief is discretionary (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [54], see also [5], [145] - [148], [172] and [217]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [80] and [211]). Circumstances in which it would be appropriate to decline relief to an applicant include cases where such an applicant has been guilty of unwarrantable delay, has acquiesced in the invalidity of which he now complains or has waived it.

39. It seems to me that the appellant’s inaction for over six years before instituting his proceedings in the Federal Magistrates Court would justify a refusal to grant relief on a discretionary basis independently of merit.  Once again, I consider that the learned Federal Magistrate's decision in that regard was correct.  In any event, his exercise of discretion in that regard was one which, in accordance with established principles, should not be disturbed. 

40. For the foregoing reasons, the appeal should be dismissed with costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:            27 June 2006

The Appellant appeared in person

Counsel for the Respondent:	M N Allars
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 June 2006
Date of Judgment:	19 June 2006