SZHEM v Minister for Immigration

[2006] FMCA 1234

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHEM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1234

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal made finding in relation to sur place claim – where applicant did not attend Tribunal hearing – whether denial of procedural fairness.

Migration Act 1958, ss.65, 414, 422B, 426A

Abebe v Commonwealth (1999) 197 CLR 510
Al Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876
B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Freeman v Health Insurance Commission [2004] FCAFC 335
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27
NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 12438
NBAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1668
NBAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 971
NBBO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 210
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215
SZEYH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 93
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630

Applicant: SZHEM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2697 of 2005

Judgment of: Barnes FM

Hearing date: 28 June 2006

Delivered at: Sydney

Delivered on: 28 August 2006

REPRESENTATION

Counsel for the Applicant: Mr B. Zipser

Counsel for the Respondents: Mr C. Mantziaris

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2697 of 2005

SZHEM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 August 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant, a citizen of the Peoples Republic of China, arrived in Australia in January 2005 and on 8 February 2005 lodged an application for a protection visa.  In her application she claimed to fear persecution based on her involvement with and activities as a member of an unregistered Christian church in China. 

2. She claimed that while working as a sales representative she told people about God and the gospel and criticised the Chinese government and its restrictions on religious freedom.  She claimed that her church was not allowed to be registered and that they had secret family gatherings and unregistered gatherings and read books from western countries.  She claimed that she had travelled overseas to spread the gospel and contact church colleagues and that she had brought secret publications back to China.  She claimed that after she returned to China she called for people to gather together and listen to her speeches and that as a result of these activities her home had been ransacked, that she was wanted by the authorities and would be persecuted because of her involvement in Christian underground unregistered activities and her dissident political opinions.  She claimed that some of her fellow members of the church had been arrested and that the PSB and local police had asked her daughter to call her back for further investigation and interrogations. 

3. The applicant also claimed to have been involved in religious activities and to have participated in Christian activities since her arrival in Australia one month earlier, that her new “crimes” would be added to her “old offences” when she returned and that as she would challenge the Chinese authorities more efficiently on her return she would be deemed a threat to them and she would be treated as “a very dangerous dissident”.

4. In her protection visa application she stated that she would provide further evidence of persecution and a detailed statement of her claims.  The Department did not receive any such statement or evidence.  The application was refused and the applicant sought review by the Tribunal on 5 May 2005.  In her application for review she provided a residential address and details of her migration agent whom she authorised as her recipient to receive correspondence in connection with the review.  She did not provide any further details of her claims. 

5. The Tribunal acknowledged receipt of the application by letter of

   
   

   6 May 2005 sent to the applicant and to her adviser.  On 7 July 2005 the Tribunal wrote to the applicant’s authorised recipient by letter sent by facsimile attaching a letter advising her that the Tribunal had considered the material before it in relation to the application but was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to a hearing at a date, time and place specified and advised that if she did not attend the hearing and a postponement was not granted the Tribunal may make a decision on her case without further notice. 

6. The Tribunal reasons for decision record that no response was received to this invitation and that the applicant did not appear before the Tribunal at the date, time and placed scheduled for the hearing. The Tribunal stated that it had checked that the transmission report indicated that on 7 July 2005 the facsimile was transmitted to the fax number provided to the Tribunal. In those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth) (the Act) the Tribunal decided to make a decision on the review without taking any further action to enable the applicant to appear before it.

7. The Tribunal was satisfied that the applicant was a citizen of the Peoples Republic of China but found that she did not attend the hearing and that this left it with claims which “are at best, stated in the most general of terms”. 

8. The Tribunal found that the information the applicant had provided did not give sufficient detail of the mistreatment claimed by her including the ransacking of her home and actions taken against her “relating to her involvement in religious activities in China and overseas”.  The Tribunal recorded that the applicant had not given details of the arrests of other members of her groups which she claimed gave rise to her own fear of persecution and that while claiming that her involvement in the church would restrict her ability to obtain employment due to intimidation by authorities and discrimination she gave no details of her employment history or whether she had been subject to such discrimination.

9. Nor had the applicant provided a detailed history of her involvement with the church, indicated the name and denomination of the underground Christian church to which she claimed to belong or provided details of the names of the Christian leaders she claimed to have assisted or of how she provided assistance.

10. Further she had claimed that she distributed foreign Christian material, but the Tribunal found that she did not indicate when and how she obtained this material, how she arranged distribution or the nature of the material. 

11. Moreover the Tribunal found that “Despite the applicant’s claims that her religious activities in Australia will provide further reasons for persecution in China she does not provide any information as to those activities or any material which supports this claim.” 

12. The Tribunal referred to country information in relation to restrictions and controls on the practice of religion in the PRC and found that:

    Without the provision of further detailed information as to the applicant’s particular claims and taking into account the country information available I cannot be satisfied on the evidence before me that the applicant has been a member of an underground or unregistered Christian church in China, that she has been involved in activities for an underground Christian church either in China or overseas, that she has spoken at meetings and been involved in Christian publications and distributed those publications.

    I also cannot be satisfied that her home has been ransacked, that she has “been on the run”, that authorities are seeking her out for investigation, that members of her church have been arrested and detained and that she will be subject to significant discrimination in the workplace.  I also cannot be satisfied that she has criticised the Chinese government for its attitude to religious freedom and would be regarded as a religious or political dissident.

    Accordingly the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.

13. The applicant sought review of the Tribunal decision by application filed in this Court on 22 September 2005.  She now relies on a further amended application filed on 28 June 2006 which raises two grounds. 

Sur place claim issue

1. The first ground in the further amended application is:

   The applicant made a sur place claim arising from her religious activities in Australia.  The Tribunal did not make a finding in relation to this claim.  On this basis the Tribunal fell into jurisdictional error.

2. Counsel for the applicant pointed out that in her protection visa application the applicant claimed that she had been involved in religious activities since her arrival in Australia and would challenge the Chinese authorities more efficiently than ever before once she returned to China and claimed specifically “I have been participating in Christian activities in Australia since my arrival last month.  My new ‘crimes’ would be added to my ‘old offences’ when I return to China.” 

3. It was submitted that this claim constituted a clearly articulated sur place claim.  It was pointed out that the applicant did not say that she had joined or rejoined the underground church in Australia but merely that she had been participating in Christian activities in Australia, there being no reference to it being with the same underground church with which she was involved in China. 

4. It was contended for the applicant that while the Tribunal correctly recorded the sur place claim in setting out the applicant’s claims and evidence, it did not make a finding in relation to this claim.  While it was acknowledged that the Tribunal dealt with the applicant’s claims concerning what she did in China, it was contended that in stating “despite her claims that her religious activities in Australia would provide further reasons for persecution in China she does not provide any information as to those activities or any material which supports this claim” the Tribunal was merely making an observation, but not a finding, in response to the sur place claim. 

5. It was contended that the Tribunal’s reference to a lack of detail about claimed mistreatment of the applicant in China in relation to her claimed “involvement in religious activities in China and overseas” and its central finding that it was not satisfied that the applicant had been a member of or involved in activities for an underground Christian church “either in China or overseas” were references to her claims about activities for the underground (or unofficial or unregistered) Chinese church when she travelled overseas to five countries to spread the gospel and contact brothers and sisters-in-law in those countries.  In other words it was submitted that when the Tribunal referred to the word “overseas” it was responding to that specific claim, but not addressing the claims made about activities in Australia.  Counsel for the respondent pointed out that the applicant never claimed that she was involved in activities for the underground Christian church movement in Australia. 

6. It was submitted that the applicant squarely raised a sur place claim (in contrast to the position considered in NBBO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 210) and that the Tribunal had fallen into error in the manner considered by the Full Court of the Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27 at [55] – [63]. It was said that the applicant had made a “substantial, clearly articulated argument” and that the Tribunal was required to deal with the case raised by the material or evidence before it (see NABE at [58]) and had not done so. It was acknowledged that the Tribunal made findings about the applicants involvement in religious activities in China, but submitted that such finding was not a finding at a “higher level of generality” (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91]) which disposed of the applicant’s sur place claim.

7. It was contended for the respondent that the Tribunal did address the applicant’s sur place claim.  First it was pointed out that this was a case in which the Tribunal found that there was a complete absence of detail to the applicant’s claims and that the Tribunal’s decision was based on the paucity of evidence before it.  Even if the Court was satisfied that there was a clearly articulated sur place claim in the manner contended for by the applicant it was submitted that it was dealt with by the Tribunal in its finding “Despite her claims that her religious activities in Australia would provide further reason for persecution in China she does not provide any information as to those activities or any material which supports this claim” taken together with its more general finding regarding the applicant’s activities “overseas” (being overseas from the perspective of China). 

8. It was suggested first that the applicant had sought to make a distinction in her protection visa application between activities conducted in the underground church and general Christian observation and that her claim regarding travel to five countries other than China was not tied to membership of a particular underground church.  On this basis, when the Tribunal made its findings in relation to the applicant’s Australian activities, the suggested distinction between activities in the underground Christian church conducted in China and Christian activities conducted outside the body of the church in Australia could be seen to fail.  This was said to be so because the applicant’s Christian activities were also conducted in countries other than China and Australia.  Thus it was contended that the reference to “overseas” was a reference to the applicant’s claimed Christian activities, whether they were conducted through the underground Christian church or not. 

9. It was accepted that it was a matter of construction for the Court as to whether the Tribunal’s first finding in this respect was more in the nature of an observation or finding.  It was suggested it was relevant to have regard to the general principle of construction in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, that one should not take a “fine-tooth comb” to such matters and that just because a finding was not expressed as a finding in those literal terms did not deprive it of its legal effect.

10. In the alternative, the first respondent submitted that even if these findings could not be characterised as a finding on the sur place claim the applicant could still not establish a failure to consider the claim leading to jurisdictional error for three reasons.  First it was contended that the applicant’s claims about her activities in Australia were merely an attempt to add quantitative support to her main claim that she would face persecution on account of past activities already conducted in China.  As she stated, her new “crimes” would be added to her “old offences” and it was contended that in this way the applicant was not raising these matters either expressly or impliedly as a separate claim. 

11. Counsel for the respondent accepted that the Court may find jurisdictional error where there had been a failure to exercise jurisdiction if the Tribunal had failed to make a finding on a “substantial, clearly articulated argument relying upon established facts” (see Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at [24] and [95]). However it was contended that where jurisdictional error for failure to consider a discrete claim of persecution such as a sur place claim was alleged, the applicant must establish not only that there was a failure to deal with an express claim which arose “clearly” on the material before the Tribunal (see NABE at [61]) but also that the relevant claim or contention was supported by probative evidence as a “substantially, clearly articulated argument relying upon established facts” (see NABE at [68]; NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 12438 and WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [45]).

12. It was said that there was no probative evidence or established facts upon which any sur place contention could rest and that a mere claim was not an established fact.  It was also said that the requirement of probative evidence appeared in WAEE and was clearly expressed in NAVK at [38] which referred to a claim being “unsupported by any probative material”.  In NAVK at [38] Nicholson and Edmonds JJ went on to refer with approval to what was said by the Full Court of the Federal Court in WAEE at [45]:

    If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s.414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision. [emphasis added in NAVK]

13. It was also suggested for the respondent that it was necessary to establish that the relevant claim or contention was such that “If [it had been] resolved in one way, [it] would or could be dispositive of the review” (NABE at [63]) and that a misconstruction of an applicant’s claim may be of no consequence to the outcome if subsumed in findings of greater generality or where there was a factual premise upon which it rested which had been rejected (see Yusuf at [91], NABE at [63] at WAEE at [47]).

14. Finally counsel for the respondent submitted that the assessment of any discrete sur place claim was subsumed in the more general finding that there was a total absence of evidence and lack of detail to establish any form of a claim for persecution.  It was submitted that the Tribunal’s findings which commenced with the statement “Without provision of further detailed information as to the applicant’s particular claims …” were findings about the essential integers of the claim and so any more specific findings would be subsumed within such findings when one read the decision as a whole.  On this basis it could be said that the evidence or claims about activities in Australia had been addressed by the Tribunal and that whether they were addressed as a claim or as something falling short of a claim the Tribunal did not fall into jurisdictional error. 

1. In reply, counsel for the applicant disputed that either Dranichnikov or WAEE was authority for the proposition contended for by the respondent.  It was noted that in NABE at [57] the Full Court of the Federal Court referred with approval to what was said by Allsop J in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42] in relation to the need for the Tribunal to consider “all the claims” and “examine and deal with the claims for asylum made by the applicant,” and referred to the Tribunal being required “to deal with the case raised by the material or evidence before it” (at [58]).

Reasoning

1. It is important to have regard to the precise claims made by the applicant.  In the protection visa application in response to the question “What do you fear may happen to you if you go back to that country?”  the applicant described her religious activities in China and her visit to five overseas countries and the implications and also stated “If I were to return to China, I would be persecuted because of my involvements in Christian underground unregistered activities and dissident political opinion”.  In response to the question about who she thought may mistreat her she claimed that “things are different now after my new offences are discovered by the Chinese authorities”, that nobody dared to employ “religion and political dissidents” and that she would be discriminated against, no one would employ her and she could not make a living.  In response to the question as to why she thought this would happen, the applicant referred to what had occurred to others in the underground churches in China and to the authorities’ contact with her daughter and continued:

   I have been involved in religious activities since my arrival in Australia.  I will challenge the Chinese authorities more efficiently than ever before once I return to China.  I would be deemed as a threat to them.

2. Finally, in response to a question about state protection she claimed to fear more severe persecution.  The claim that she then made about activities in Australia must be considered as a whole.  It was as follows:

   I have been participating in Christian activities in Australia since my arrival last month.  My new “crimes” would be added to my “old offences” when I return to China.  I would be challenging the Chinese authorities more efficiently than ever before.  Thus I would be treated as a very dangerous dissident.

3. It is not disputed that the Tribunal correctly summarised the applicant’s claims.  What is in issue is whether the Tribunal considered such claim in the manner required.

4. The Tribunal decision should be read in a manner consistent with the well-settled propositions in relation to the practical restraints on judicial review considered in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at [30] – [31] (in particular bearing in mind that, as stated in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 the court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of the decision-maker and that “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”)

5. It is also important to note that, as the Tribunal stated at the start of the findings and reasons part of its decision “The relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.”  It was for the applicant to advance her own case (Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ). The decision must be seen in light of the Tribunal’s finding that the paucity of evidence and very general claims made by the applicant meant that it could not reach the requisite state of satisfaction on the material before it that the applicant had a well-founded fear of persecution. In such circumstances s.65(1)(b) of the Migration Act 1958 (Cth) required that the visa application be refused because without further evidence from the applicant the Tribunal was not in a position to be satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol (s.36(2)).

6. In this context the Tribunal set out its general finding that the claims were “at best” stated in “the most general of terms” and then detailed particular inadequacies in the information provided by the applicant in support of her claims – one aspect of which was a lack of information about the applicant’s religious activities in Australia or any material which supported her claim “that her religious activities in Australia will provide further reasons for persecution in China”. 

7. It cannot be said that the Tribunal addressed the applicant’s sur place claim by its reference to “overseas” activities (which clearly related to her claims about activities in five overseas countries and about consequent mistreatment in China following such activities).  At its broadest the Tribunal finding that it could not be satisfied on the evidence before it “that the applicant has been involved in activities for an underground Christian church either in China or overseas” related only to activities for the underground church.  The applicant’s claims about her activities in Australia were not so limited.  They were that she had been involved in religious activities and participated in Christian activities in Australia and would “challenge the authorities more effectively”, “be deemed as a threat to them”, have her “new ‘crimes’ added to her ‘old offences’”, “challenge the authorities more efficiently than ever before” and “thus I would be treated as a very dangerous dissident” (emphasis added).  However reading the Tribunal decision fairly and as a whole, it is clear that the Tribunal addressed these claims in two ways.  First in finding that it could not be satisfied that the applicant “would be regarded as a religious or political dissident” the Tribunal understood and addressed the claims the applicant made based on her religious activities in Australia. 

8. Secondly, the paucity of information, the lack of detail and supporting material in relation to all aspects of the claims (including the sur place claim) which led the Tribunal to find on the basis of the absence of further detailed information as to the applicant’s claims that it was “Accordingly … not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention”. 

9. No jurisdictional error is revealed because the facts that were put forward by the applicant did not cause the Tribunal to be satisfied as to the applicable criteria (see Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215).

10. Accordingly it is not necessary to consider the respondent’s submission that the applicant had to demonstrate that the suggested claim was supported by “established facts” or “probative evidence”.  I note however in this respect that as counsel for the applicant observed, the Full Court in NABE referred with approval to the much-cited and more general description of the Tribunal’s task in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259 [42] per Allsop J (with whom Spender J agreed) at [42]:

    The requirement to review the decision under s.414 of the Act requires the Tribunal to consider the claims of the applicant.  To make a decision without having considered all of the claims is to fail to complete the exercise of jurisdiction embarked on.  The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact-finding.  The nature and extent of the task of the Tribunal revealed by the terms of the Act … make it clear that the Tribunal’s statutorily required task is to examine and deal with claims for asylum made by the applicant. 

11. The Court also quoted with approval at [55] what was said by Gummow and Callinan JJ (with whom Hayne J agreed) in Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 394 to the effect that where the Tribunal fails to make a finding on “… a substantial, clearly articulated argument relying upon established facts” that failure could amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.  There is no suggestion that the High Court in Dranichnikov stated that established facts were a precondition to the need to make a finding on a claim.  Nor did the Full Court in WAEE at [45] (as set out above at [28]) expressly impose a requirement of probative evidence before the Tribunal was required to “consider” a claim. Of course the absence of established facts or probative evidence may well mean that the Tribunal is not satisfied that such a claim provides a basis for a well-founded fear of persecution, but that is a separate issue. However, as the Tribunal did consider the applicant’s sur place claim, the issue raised for the respondent does not have to be resolved.

12. Finally, this is not a case in which a factual premise upon which a contention rested was rejected (see WAEE at [49]). Rather, on the evidence before it, while the Tribunal did not reject the claim that the applicant had engaged in religious activities in Australia, it could not be satisfied on the limited material before it that the applicant would therefore be regarded as a dangerous dissident or would otherwise have a well-founded fear of persecution for a Convention reason. No jurisdictional error is established in the manner contended for by the applicant.

Failure to attend hearing issue

1. The second ground relied on in the further amended application is as follows:

   The applicant was dissuaded from attending the hearing before the Tribunal as a result of negligent advice from her migration agent.  In the circumstances, there was a denial of procedural fairness and jurisdictional error.

2. In support of this contention the applicant relied on a statement of the applicant which was adopted by her in oral evidence before the Court.  The applicant claimed that she was dissuaded from attending the hearing in the Tribunal as a result of poor advice from her migration agent.

3. However it was acknowledged and conceded that the applicant could not succeed on this claim in this Court having regard to the decision of the Federal Court in B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 at [23] – [25] per Dowsett J and see NBAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1668. It was conceded that there was authority binding on this Court that where an applicant was deprived of an opportunity to attend a hearing before the Tribunal through the default of his or her adviser (where the default was not fraud) this did not constitute a denial of procedural fairness or jurisdictional error and conceded that the applicant did not allege fraud in the present case. (Also see Al Mehdawi v Secretary of State for the Home Department (1990) 1 AC 876 at 898 per Lord Bridge.)

4. Counsel for the first respondent noted the concession made by Mr Zipser for the applicant and also drew the Court’s attention to the decision of the Full Court of the Federal Court in NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 at [16] in which it was held that “The asserted fact that the applicant was unaware of the Tribunal’s hearing was of no legal relevance” (also see SZEYH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 93 at [30]; Freeman v Health Insurance Commission [2004] FCAFC 335 at [52] and NBAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 971 at [11] – [13]).

5. In light of the applicant’s concession that the applicant could not succeed on this ground in this Court it is not necessary to consider this issue further. On the authorities as they presently stand and noting that the applicant does not dispute that she was notified of the invitation to the hearing, but claims that she chose not to attend on the advice of her migration agent she cannot succeed. The applicant’s concession that she cannot succeed in this Court also makes it unnecessary to consider the effect of s.422B of the Migration Act.

6. Accordingly the application must be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  28 August 2006