SZHMP v Minister for Immigration and Multicultural Affairs

[2006] FCA 1587

FEDERAL COURT OF AUSTRALIA

SZHMP v Minister for Immigration & Multicultural Affairs

[2006] FCA 1587

SZHMP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1343 OF 2006

LINDGREN J
14 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1343 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHMP
Appellant

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	14 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the first respondent’s costs of the appeal.

3.        The costs referred to in order 2 be fixed at $1500.

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 1343 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHMP
Appellant

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	14 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals against a judgment of the Federal Magistrates Court of Australia (‘FMCA’) given on 22 June 2006.  The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal’s decision was made on 15 September 2005 and was handed down on 6 October 2005.  The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant. 

2. The appellant is a citizen of the People’s Republic of China (‘PRC’).  Before the Tribunal, he claimed to have a well-founded fear of persecution for reasons of religion, because of his Christian beliefs and his membership of an underground church.  He claimed that he had been a member of the church since he was a boy, asserting that in the PRC underground churches are prohibited, and that every two years the authorities use the ‘anti crime movement’ to imprison church members. 

3. The appellant claimed that in 1999, during one of these anti-crime movements which was targeting Falun Gong practitioners and other underground organisations, local government officers visited every house to warn people not to attend underground churches against peril of punishment.  However, the appellant claims that he continued his underground church activities every week, and that in fact he was one of the main organisers of the church. 

4. He said that in February 2002 the police raided his church, which was at that time meeting in his home.  He said that the police beat participants and detained five of the leaders, including the appellant.  He claimed that the five people who were detained were held for over ten months at the Fuqing Police Station without investigation or sentence, but that the appellant was released after other church members paid a bribe to the police.

5. The appellant left China with the help of other church members and travelled on his own passport to Indonesia.  From Indonesia he travelled to Australia on a Japanese passport that was not his own. 

6. Importantly, on 16 August 2005, the Tribunal invited the appellant to give oral evidence and to present argument at a hearing before the Tribunal on 12 September 2005.  It did so by registered letter addressed to the appellant at the mailing address he had nominated in his application for review.  The letter advised the appellant that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his application without further notice. 

7. No response was received to the Tribunal’s letter.  Letters to the appellant addressed to him at the mailing address he gave to the Tribunal had never been returned to the Tribunal. 

8. Accordingly, the Tribunal proceeded under s 426A of the Migration Act 1958 (Cth) (‘the Act’), as it was entitled to do, to make a decision in the absence of the appellant. That section provides that if an applicant for review is invited under s 425 of the Act to appear before the Tribunal but does not appear 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 him or her to appear before it.

9. In its reasons the Tribunal noted that the appellant’s claims were incomplete and untested.  The Tribunal referred to shortcomings in the claims that had been made by the appellant in support of his application.  These are matters on which the Tribunal would no doubt have questioned the appellant, if he had appeared before it.  In his absence, however, and having before it only the Department’s file, general country information, and the appellant’s written claims, the Tribunal was not satisfied that the appellant faced persecution for a Convention reason if he should return to China.

10. On 2 November 2005 the appellant filed an application seeking judicial review of the Tribunal’s decision in the FMCA.  In his amended application to that Court dated 30 January 2006 and filed on 10 March 2006, the appellant stated the following grounds of his application for review:

    (1)That the Tribunal had failed to give sufficient time for the appellant to respond to the hearing invitation;

    In respect to (1), the appellant’s case was that, although the letter of invitation was issued on 16 August 2005, the appellant did not receive it until ten days later;  it took time for him to find someone to read and explain the letter to him and for him to seek advice on it; and, due to his having no money and limited English, he was unable to answer the invitation within the period. 

    (2)That the Tribunal had failed to notify the appellant of a critical factor on which its decision was likely to be based.  The Tribunal member had not put in writing to the appellant questions about his background, which the Tribunal wished to have clarified, and the appellant was given no opportunity to reply.

    (3)That the Tribunal did not give the appellant’s application sufficient weight, although the appellant had provided much information. 

    In respect to (3), the appellant asserted that the Tribunal was required to bring an impartial mind to bear when considering his application, but had not done so.  He contended that the Tribunal selected points that told against him, and that where something was not clear, the Tribunal had failed to give the appellant the opportunity to deal with the matter.  He complained that the Tribunal’s decision was made ‘subjectively’ and ‘on a bias basis’. 

11. The Federal Magistrate held that the Tribunal’s decision was not affected by jurisdictional error and was a privative clause decision: see s 474 of the Act.

12. On the hearing before the Federal Magistrate the appellant said that he had not been able to have the Tribunal’s letter translated in time to allow him to respond to the invitation and to attend the hearing.  He said that his migration agent was overseas at the time and that he did not receive the Tribunal’s letter until after the agent’s return, which was too late.  The Federal Magistrate noted that neither the appellant nor the migration agent had contacted the Tribunal to inform it that a problem existed.

13. The Federal Magistrate correctly found that the appellant was deemed to have received the invitation seven working days after the date of the letter, namely, on 25 August 2005: s 441C(4)(a) of the Act. His Honour also correctly held that the Tribunal had been entitled to proceed with the hearing in the absence of the appellant: s 426A(1) of the Act. The Federal Magistrate was satisfied that the Tribunal had complied with ss 425A and 426(1) of the Act, as well as reg 4.35D of the Migration Regulations 1999 (Cth).  The Tribunal had given the appellant 17 days’ notice, whereas it was required to give him only 14 days’ notice.

14. The Federal Magistrate also held that the Tribunal had not failed to comply with s 424A(1) because there were no pieces of information relied on as the reason, or as a part of the reason, for affirming the delegate’s decision. The Tribunal’s conclusions relating to the paucity of the evidence before it did not have to be notified to the appellant.

15. The Federal Magistrate found that the appellant’s complaint about the weight given to the information he had provided was an attempt to have the FMCA engage, impermissibly, in merits review.  His Honour also held that the complaint of bias was not supported by any evidence, and went further in holding that the Tribunal had in fact approached the appellant’s matter in an impartial way.

16. The Federal Magistrate observed that the non-attendance of the appellant at the hearing before the Tribunal led inevitably to an affirmation of the delegate’s decision.

17. The appellant’s notice of appeal to this Court raises the following grounds:

    1.        The Tribunal was biased against the appellant.

    2.The Tribunal did not consider the appellant’s application according to s 91R of the Act.

    3.The Tribunal did not refer to “sufficient independent information for the consideration of [the appellant’s] application”.

    4.        The Federal Magistrate wrongly failed to find jurisdictional error.

18. In an affidavit which accompanied the notice of appeal, the appellant asserted that:

    5. The Tribunal did not observe the requirements of s 424A of the Act.

    6.The Tribunal failed to consider the appellant’s application thoroughly and refused it immediately.

19. For the purposes of the appeal, the appellant submitted a one-page written submission.  I asked him on the hearing whether he wished to elaborate orally on his submission or to say anything further in support of his appeal but he said that he wished to rely upon his written submission alone.  In substance, the written submission repeats one or more of the grounds of appeal referred to above.

20. The appeal should be dismissed for the following reasons:

    1.        There is no evidence that the Tribunal was biased against the appellant.

    2.Section 91R is a definitional section, not a section ‘according to which’ an application must be ‘considered’.

    3.The Tribunal was not required to refer to any particular independent country information.

    4.        No basis for a finding of jurisdictional error is shown.

    5.The Federal Magistrate correctly held that s 424A did not require the Tribunal to notify the appellant of the perceived deficiencies in his claims.

    6.There is no substance in the complaint that the Tribunal failed to consider the appellant’s application, or that the Federal Magistrate did not consider his application for review thoroughly.  It is beside the point that the Federal Magistrate refused the application for review ‘immediately’.

21. For the above reasons the appeal should be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:        22 November 2006

The Appellant appeared in person
Solicitor for the First Respondent:	Mr R White of Sparke Helmore
Date of Hearing:	14 November 2006
Date of Judgment:	14 November 2006