SZHGI v Minister for Immigration and Multicultural Affairs
[2006] FCA 1356
•17 OCTOBER 2006
FEDERAL COURT OF AUSTRALIA
SZHGI v Minister for Immigration and Multicultural Affairs [2006] FCA 1356
SZHGI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 754 OF 2006BESANKO J
17 OCTOBER 2006
ADELAIDE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 754 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHGI
AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
17 OCTOBER 2006
WHERE MADE:
ADELAIDE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant 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
NEW SOUTH WALES DISTRICT REGISTRY
NSD 754 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHGI
AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second RespondentJUDGE:
BESANKO J
DATE:
17 OCTOBER 2006
PLACE:
ADELAIDE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
The issue in this appeal is whether a Federal Magistrate erred in not finding that the Refugee Review Tribunal (‘the Tribunal’) committed a jurisdictional error in the course of exercising the discretion it had under s 426A of the Migration Act 1958 (Cth) (‘the Act’). That section is in the following terms:
‘(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.’
The appellant was invited to appear before the Tribunal but she did not do so. The Tribunal decided to make a decision on the review without taking any further action to allow or enable the appellant to appear before it. It was that decision which was challenged in the Federal Magistrates Court on the ground of jurisdictional error.
The appellant was a national of the People’s Republic of China. She arrived in Australia as a tourist in November 2004. On 7 January 2005 the appellant applied for a protection visa. She claimed that since 1998 she had been a member of Falun Gong or a Falun Gong practitioner and that she feared persecution in China. The statement of the appellant which accompanied her application went into considerable detail about the attitude of the Chinese authorities towards Falun Gong, but there was little detail as to her own involvement in Falun Gong or its activities.
On 31 March 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the appellant’s application for a protection visa. It is not necessary to go into the details of the decision other than to say that the delegate was not satisfied on the material that the appellant was ‘a genuine, committed Falun Gong practitioner’.
The appellant applied to the Tribunal for a review of the decision. She was invited to attend a hearing of the Tribunal on 6 July 2005 and she completed and returned a form indicating that she would attend. She asked for an interpreter able to speak Mandarin to attend at the hearing.
The appellant did not attend the hearing on 6 July 2005. It seems that late on that day she sent a letter by facsimile transmission to the Tribunal in the following terms:
‘Dear Tribunal Officer,
My name is […], my RRT file number is […].
I had a hearing this morning. I went to City but I could not find the location. Can I get one more chance?
The thing is I realize that last time I asked for a Mandarin interpreter. I may not be able to communicate very well in Mandarin. Is it possible to find a Chinese interpreter speaking Fuqing or Fuzhou dialect?
Regards
[signature]
6/7/2005’
A note on the letter in the records of the Tribunal made by the Tribunal member assigned to hear the application for review indicates that she saw the letter at about 10.45 am on 7 July 2005. The rest of the note reads:
‘I had already finalised my decision. I have recalled my decision and amended it accordingly. I have decided not to reschedule the hearing.’
The Tribunal member handed down her decision on 28 July 2005. She affirmed the decision of the delegate. As to her decision not to reschedule the hearing, the Tribunal member said:
‘At 16.51 of 6 July 2005, the Tribunal received a facsimile from the applicant. The applicant stated that she did not attend the hearing on the morning of 6 July 2005 because “I went to the City but I could not find the location. Can I get one more chance?” The applicant also stated that although she had previously asked for a Mandarin interpreter, she now wanted a Chinese interpreter speaking Fugqing or Fuzhou dialect.
The Tribunal has considered the applicant’s request for another hearing but has serious concerns about such a request given the circumstances. The applicant was notified of the hearing on 23 May 2005, approximately six weeks prior to the hearing date. On 8 June 2005, she advised that she intended to attend the hearing. The hearing was listed for 10.00 am. The Tribunal booked an interpreter who waited until at least 10.30 am before discharged [sic]. There were no attempts whatsoever by the applicant to contact the Tribunal by telephone to advise of any difficulties she may have been having in locating the premises. She waited until virtually close of business to advise that she could not find the location. Further, at no stage prior to the facsimile of 6 July 2005, did the applicant request a Chinese interpreter speaking Fugqing or Fuzhou dialect. Indeed when she responded to the hearing invitation on 8 June 2005, she requested a “Mandarin” interpreter. In light of these circumstances, the Tribunal is satisfied that the applicant has had ample notice of the hearing and the location and has had ample opportunity to find the Tribunal’s location and request a particular type of interpreter. Section 420 of the Act provides “The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.” (Subsection 1). The Tribunal is satisfied that if the applicant were to be offered another hearing, it is entirely plausible that she would not attend the hearing which would delay this matter without justification or reasonable cause by at least three months. The Tribunal is satisfied that it has complied with its obligations to conduct a fair and just review. The Tribunal cannot condone the actions of an applicant who is clearly not genuine about pursuing her case. The applicant is seeking asylum in Australia, yet she appears to have made no effort to ensure that she attends a hearing about which she clearly knew for about six weeks.
In light of the above comments and in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant’s request for another “chance” is unreasonable and unwarranted. In accordance with Section 426A of the Act, the Tribunal has decided to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.’
The Tribunal member rejected the application on the merits saying, in essence, that she was not satisfied that the applicant and her husband were practitioners of Falun Gong or that they were involved in activities of Falun Gong. I say at this point that the Magistrate considered whether there was a basis for saying that there was a jurisdictional error in the Tribunal’s review of the merits and concluded that there was not. There is nothing to suggest that the Magistrate erred in that regard.
In her application for judicial review, the appellant asserted:
‘The Tribunal failed to following [sic] the Section 420 of the Migration Act 1958, which requires that “the Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
Particulars:
The applicant was denied an opportunity to appear before the Tribunal and to present oral evidence.
The applicant tried to find the location of the Tribunal on the scheduled hearing date but, due to her incompetence to speak English and unfamiliarity to the city area, she could not find the Tribunal. She then returned home and faxed to the Tribunal and explained why she was absent, and requested a new hearing be scheduled. The Tribunal unfairly denied her request.’
The appellant put forward affidavit evidence in support of her application for judicial review. In her affidavit she said:
‘1.I arrived in Australia in November 2004. I cannot read or write English. I read and write Hokien which is the dialect of Fujian Province in China.
2.On 6 July 2005 I caught a bus from my house to Central at about 9.30 am. When I arrived at Central I started walking towards the Park. I could not read the street signs and could not find anyone to help me. I walked for about an hour and then became scared so I went home.
3.When I arrived home I rang Mr Gao, a Migration Agent, and asked him “what can I do?”.
4.Mr Gao advised me “you need to send a facsimile to the RRT telling them what happened and asking for another hearing”.
5.I asked Mr Gao to prepare such a facsimile for me and then I went to his office to sign it and then faxed it to the RRT that day.’
Due to a lack of an appropriate interpreter, the appellant could not be cross-examined on her affidavit. However, she made submissions in support of her application and in that regard the Magistrate made the following observations:
‘The applicant made submissions to me using the combined assistance of her friend and the Mandarin-speaking interpreter, and I am satisfied that she was able sufficiently to communicate all that she wished to say to me. She agreed that she had received and understood the invitation to attend the Tribunal hearing. She gave further explanations for missing the hearing, which departed somewhat from her affidavit. For example, she claimed that she could not seek help from her agent, Mr Gao, at any time on the date of the hearing because he was overseas. She claimed that the letter sent by facsimile to the Tribunal was prepared by a stranger whom she met on the street who spoke her language. She denied that she had deliberately avoided attending the Tribunal hearing.’
The Magistrate did not make findings about the appellant’s reasons for not attending the hearing because he said that even if he accepted the appellant’s evidence it had not been shown that the exercise of the Tribunal’s discretion not to reschedule the hearing had miscarried.
I doubt whether the further evidence put forward by the appellant was relevant and admissible. The question before the Magistrate was whether the Tribunal had committed a jurisdictional error on the information before it in deciding not to reschedule the hearing. Further evidence might be relevant and admissible if it was relevant to whether the Tribunal had complied with its statutory obligations, or had the information before the Tribunal given rise to an obligation on the Tribunal to make further inquiries and the further evidence been relevant to what those further inquiries might have revealed. In this case, the further evidence was not relevant by reason of either of those matters. At all events, I agree with the Magistrate that, even if regard is had to the further evidence, it does not advance the appellant’s case.
The Tribunal had a discretion to make a decision on the review without taking any further action to allow or enable the appellant to appear before it or to reschedule the hearing. That discretion must be exercised fairly and having regard to the statutory objects and purposes relevant to the Tribunal’s consideration of the appellant’s application for review. The Tribunal was very sceptical about the appellant’s explanation and about whether her claim for another hearing was genuine. Another Tribunal member might have been less sceptical about those matters, but I do not think it can be said that the view taken by the Tribunal member was not one reasonably open to her. For these reasons (which essentially are the same as those of the Magistrate) the decision of the Tribunal under s 426A of the Act not to reschedule the hearing did not involve jurisdictional error.
The appeal must be dismissed and the appellant must pay the Minister’s costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 17 October 2006
The Appellant: The appellant appeared in person. Counsel for the Respondent: G Johnson Solicitor for the Respondent: Phillips Fox Date of Hearing: 8 August 2006 Date of Judgment: 17 October 2006
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