SZHCG v Minister for Immigration and Citizenship

[2007] FCA 1458

FEDERAL COURT OF AUSTRALIA

SZHCG v Minister for Immigration and Citizenship [2007] FCA 1458

SZHCG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2218 OF 2006

SIOPIS J
20 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2218 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHCG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	20 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The appeal is dismissed.

2The name of the first respondent is changed to “Minister for Immigration and Citizenship”.

3The Refugee Review Tribunal is joined as second respondent.

4The appellant is to 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 2218 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHCG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	20 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate.  The appeal was first listed before me on 20 February 2007 and the appellant failed to attend on that day.  However, as the solicitors for the first respondent had erroneously advised the appellant in writing that the hearing was to take place at the John Maddison Tower and not the Queens Square Law Courts Building, I adjourned the hearing.  The appeal was relisted for hearing at 10.15 am today.  It is now almost 10.50 am and I have asked that this matter be called, both outside the courtroom and at the Registry level.  There has been no appearance by the appellant in this matter.  The Court file shows that the appellant was notified of this hearing.  In addition, the first respondent has tendered a copy of a letter, dated 27 June 2007, from the solicitors for the first respondent to the appellant, which confirms the details of the hearing today.  I am advised that the letter was sent to the post office box, which was provided as the address for service, and that a further copy of the letter was sent to the residential address of the appellant, as it appears on the notice of appeal.

2. I am satisfied, therefore, that the appellant has received adequate notice of the hearing today. Accordingly, I exercise the power under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to dismiss the appeal. I also dismiss the appeal on the merits and I will deliver some short reasons.

3. The appellant is a citizen of the People’s Republic of China (China), born on 1 September 1959, who arrived in Australia on a business visa on 12 December 2004.  On 12 January 2005, he lodged an application for a protection visa with the department.

4. In his application the appellant claimed to hold a well‑founded fear of persecution for political opinion associated with his position as editor‑in‑chief of a university magazine, which was critical of the Chinese government.  The appellant claimed that in November 2004 he was informed by the university that Public Security Bureau (PSB) officers had confiscated the next issue of the magazine and arrested two writers.  The appellant claims that he left China soon after as “it became evident now that my life was also in danger, and it wont take long until the government realise that I was in charge of this whole operation”.

5. A delegate of the first respondent refused the application on 8 April 2005.  The appellant then applied to the Refugee Review Tribunal (the Tribunal) for a review on 10 May 2005.  That Tribunal affirmed the delegate’s decision, but the appellant sought review in the Federal Magistrate’s Court and on 17 February 2006 the Federal Magistrate by consent, set aside the decision and remitted the matter to be determined according to law.

   The Tribunal

6. On remittal the Tribunal sent the appellant an invitation to a hearing dated 30 March 2006, to which the appellant did not respond. On being contacted by telephone on 1 May 2006, the appellant confirmed that he had received the invitation and that he would attend the hearing. However, the appellant did not appear at the hearing on 16 May 2006 and the Tribunal proceeded without further representation pursuant to s 426A of the Migration Act 1958 (Cth) (the Act). The Tribunal found that the claims of the appellant were unsubstantiated assertions. As the appellant failed to attend the hearing, the Tribunal found itself unable to verify or explore his claims and it could not, therefore, be satisfied that the appellant was a political activist, nor that the alleged action by the PSB took place.

7. The Tribunal stated:

   There are insufficient particulars as to the detail of the university where the [appellant] worked, such as its name, the title of the Dean (of the faculty or the university), and details of the [appellant’s] employment with the university.  There are insufficient particulars as to the detail of when the magazine called “Conversation” was first published, and evidence of that.  There are insufficient particulars as to the date the police entered the appellant’s office, the period over which the writers disappeared, when the Dean suggested the [appellant] leave [China], and when the [appellant] sold all his assets.

8. The Tribunal held it could not be satisfied on the evidence that the appellant faced a well‑founded fear of persecution for a Convention reason on return to China and affirmed the refusal of the visa.

   The Federal Magistrate

9. In an amended application for judicial review filed on 27 September 2006, the appellant stated:

   1.There is jurisdictional error for the purposes of s 75(v) of the Constitution when RRT reviewing [sic] my case. RRT breached the rules of procedural fairness;

   2.Migration Act 1958 (s 420) requires the Tribunal to do substantial justice, deciding each case on its merits and avoiding technicalities;

   3.I found that the RRT decision does contain some bias as alleged by the fact.  Further, there are obligations on the RRT, in this particular matter, to refer to resources about China and its democratic system.

   Furthermore:

   I am un‑present [sic].  I request to join the Legal Advice Scheme, but I did not receive letter regarding my legal advice.  Due to my ability limitation, I think it is unfair to request me to giving complete particulars of each ground of review within two weeks time.

   Conclusion:

   I submit that as there is jurisdictional error for denial of procedural fairness and natural justice regarding of the RRT decision, the defendant [sic] should review the cases and adjust the decision previously.

10. On 19 October 2006, the appellant appeared before the Federal Magistrate in person, with an interpreter, but did not make any submissions.

11. The Federal Magistrate found that the invitation to a hearing letter, sent to the appellant on 30 March 2006, complied with the requirements of s 425 and s 425A of the Act. The Federal Magistrate said it was plainly open to the Tribunal in those circumstances to exercise its discretion under s 426A of the Act as it had done.

12. In relation to the first ground of review, the Federal Magistrate noted that the appellant contended that he had not had sufficient time to provide details of the evidence to the Tribunal which supported his claim.  However, the Federal Magistrate said, when asked what that evidence may be, the appellant responded that there were certificates to show where he worked.  The Federal Magistrate observed that the appellant had had since January 2005, when he lodged his application for a protection visa, to obtain such evidence, or to put on evidence to the Tribunal of the nature of the documents that he would seek to provide, the attempts by him to provide such documents and the reasons why he was not able to obtain hem.  However, said the Federal Magistrate, there is nothing before the Court to show that there was any such evidence before the Tribunal.  In the circumstances, in light of s 422B of the Act, and the Tribunal’s compliance with the statutory code, there was no denial of procedural fairness by the Tribunal.

13. In relation to the second ground of review, the Federal Magistrate stated that she “did not understand a breach of s 420 of the Act to be capable of amounting to jurisdictional error”. Her Honour held that in any case, the Tribunal had complied with its statutory obligations and that the Tribunal was entitled to proceed under s 426A. Furthermore, the Tribunal had, in fact, considered the basis of the appellant’s claims and provided reasons for its failure to be satisfied that the appellant met the criteria for being a refugee.

14. The Federal Magistrate characterised the third ground of review as a claim that the Tribunal erred because it “did not refer to independent country information about China in its decision”.  The Federal Magistrate found that the Tribunal was not under any obligation to consider independent country information, nor to make inquiries to substantiate the claims of the appellant.  Further, insofar as the ground comprised an allegation of bias, the Federal Magistrate held that there were insufficient particulars provided of that allegation and nothing on the face of the decision to support such a claim.  The Federal Magistrate found there was no other error apparent in relation to the Tribunal’s decision and she dismissed the review application.

    The appeal

15. The appellant filed a notice of appeal in this Court which, in effect, raised the following grounds:

    (1)The Federal Magistrate breached the rules of procedural fairness in not providing an opportunity to access the “Legal Advice Scheme”, and by directing the appellant to file his amended application two weeks after the first directions hearing ‑ a time frame which, said the appellant, did not enable him to obtain legal advice;

    (2)The Federal Magistrate erred in failing to find that the Tribunal acted in breach of s 420 of the Act as the Tribunal was required to do substantial justice, deciding each case on the merits and avoiding technicalities;

    (3)The Federal Magistrate’s decision was biased.

16. The first ground of appeal is dismissed because there is no right to free legal advice.  Further, the complaint about the Federal Magistrate’s direction to file an amended application, does not disclose an absence of procedural fairness.  If the appellant was dissatisfied with the direction, it would have been open to the appellant to seek an extension of time, or to seek leave to appeal against that direction within the proper time limit.  It is now too late to raise the matter.

17. The second ground of appeal is dismissed because the Federal Magistrate did not err in relation to the finding about s 420, and in making the findings that the Tribunal had complied with the statutory obligations under s 425 and s 426A and was entitled to proceed under s 426A; and also that the Tribunal had properly considered and provided reasons for rejecting his claim.

18. The third ground of appeal is dismissed because an allegation of bias is a serious allegation to make and the appellant is required to substantiate and support such an allegation with evidence.  There was no such evidence either in respect of what occurred at the directions hearing, nor the hearing of the application for review.  Nor is there anything in the decision of the Federal Magistrate which remotely suggests bias.

19. Accordingly, I order that the appeal is dismissed on the merits.

20. I join the Refugee Review Tribunal as the second respondent and I will hear submissions in relation to the question of costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        14 September 2007

Counsel for the Appellant:	The appellant did not appear.
Counsel for the First Respondent:	J Mitchell
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	20 August 2007
Date of Judgment:	20 August 2007