SZHUM v Minister for Immigration and Citizenship

[2008] FCA 847

FEDERAL COURT OF AUSTRALIA

SZHUM v Minister for Immigration and Citizenship [2008] FCA 847

SZHUM and SZHUN v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 22 OF 2008

REEVES J
10 APRIL 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 22 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHUM
First Appellant

SZHUN
Second Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	10 APRIL 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appellants’ appeal be dismissed.

2.The appellants 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 22 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHUM
First Appellant

SZHUN
Second Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	10 APRIL 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. I will give my decision in this matter.  The main focus of these appeals is whether the Federal Magistrate was in error in failing to detect a jurisdictional error on the part of the Refugee Review Tribunal (‘the Tribunal’) in proceeding with its hearing on 12 October 2005, in the absence of the appellants, having given the appellants the form of notice that it did.  For the reasons that follow, I do not believe that the Tribunal erred in proceeding with the hearing in the circumstances and it follows that there was therefore no jurisdictional error to be detected by the Federal Magistrate.  The appeals will therefore be dismissed.

   THE TRIBUNAL’S DECISION

2. The appellants are husband and wife.  They are Chinese citizens.  They arrived in Australia on 30 May 2005 and lodged applications for protection (class XA) visas, on 24 June 2005.  Those applications were rejected by a delegate of the Minister on 15 July 2005.  The appellants then applied to the Tribunal to review the delegate’s decisions on 16 August 2005.  The Tribunal considered the material before it and invited the appellants to attend a hearing before it on 12 October 2005.  On 13 September 2005 the Tribunal wrote to the appellants and extended the invitation to attend that hearing.  The appellants did not attend the hearing and the Tribunal decided to proceed with the hearing in their absence.  By a decision signed on 13 October 2005, and delivered on 8 November 2005, the Tribunal confirmed the delegate’s decision. 

   FEDERAL MAGISTRATE’S DECISION

3. On 12 December 2005 the appellants applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  Their applications were amended on 5 April 2006.  After a hearing conducted on 25 September 2007, Federal Magistrate Nicholls delivered his decision on 21 December 2007, dismissing the applicants’ applications because he could not discern any jurisdictional error on the part of the Tribunal. 

   GROUNDS OF PRESENT APPEAL

4. The appellants have now appealed that decision to this Court.  There are two grounds of appeal and they are set out in the Notice of Appeal filed by the appellants on 31 December 2007, as follows:

   ‘1.       The Tribunal failed to consider my situation for not attending the hearing dated 12 October 2005.  I arrived in Australia on 30 May 2005.  One of my friend Mr Fu Long LI in Australia helped me lodge application for a protection visa.  Just three months after, Mr Fu Long LI went back to China.  I did not receive the letter dated 13 September 2005 which notice me to attend the hearing held at 11 am on 12 October 2005 from Refugee Review Tribunal.  The Tribunal has the responsibility to send the letter to both my postal address and my residential address.  I did not receive this letter.  Thus, the Tribunal made a jurisdictional error by failing give me proper notice.

   2.        The decision was otherwise contrary to law.’

5. As is often the case in these matters, neither of these grounds of appeal identifies any appellable error on the part of the Federal Magistrate.  Rather both grounds appear to be directed to the Tribunal’s decision.  The appellants appeared in person before me with the assistance of an interpreter.  They were not legally represented.  When I attempted to draw this defect in their Notice of Appeal to their attention, the male appellant responded by stating that they were not satisfied with the Tribunal’s decision.  In the circumstances I will assume that the first ground of the Notice of Appeal intends to claim that the Federal Magistrate was in error by failing to detect the jurisdictional error on the part of the Tribunal, made as set out in that ground.

6. I note that the Federal Magistrate took a similar approach to the Application before him: see [2007] FMCA 2109, at [20].

7. However, I do not consider that the second ground of the Notice of Appeal can be salvaged so easily.  It does not identify any specific error on the part of the Federal Magistrate or the Tribunal for that matter, but merely alleges the whole of the decision was contrary to law.  Even on the most beneficial view of that ground, it does not identify any error on the part of the Federal Magistrate, or even the Tribunal, that this Court can, or should, consider. 

8. Turning then to the first ground, in its decision the Tribunal detailed the circumstances surrounding the hearing held on 12 October 2005 as follows: see page 4 of the Tribunal’s decision, signed on 13 October 2005 :

   ‘On 13 September 2005 the Tribunal wrote to the Applicants advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the Applicants to give oral evidence and present arguments at a hearing on 12 October 2005.  The letter was sent to the Applicants at the address for service indicated in their application for review.  The Applicants provided no details of an authorised recipient. No response was received and the letter was not returned unclaimed.  On 7 October 2005, the Tribunal checked to see whether a reply had been received but not attached to the file.  The Tribunal also checked that the invitation had been sent to the recipients’ most recent address for service and checked the Department’s movements database to confirm that the Applicants were still in Australia.  No telephone or fax contact numbers were provided by the Applicant[s] in their review application.

   The Applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear.  In those circumstances, and pursuant to s426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicants to appear before it.’

9. In his decision the Federal Magistrate first notes how the Tribunal had dealt with this issue in its decision as set out above: see [2007] FMCA 2109, at [5] and [6]. At paragraph 11 of his decision the Federal Magistrate records that the appellants appeared before him in person with the assistance of an interpreter. At paragraph 12 his Honour records that the male appellant submitted :

   ‘That the Tribunal had notified him: ‘of the letter’, but he could not find the address of the Tribunal and that was why he did not attend the hearing.’

10. Much later in his reasons, at paragraph 38, his Honour again records the appellants’ explanation for their non-attendance in the following terms:

    ‘At the hearing before the Court, the applicant submitted he had received the letter of invitation, and attempted to attend the hearing, but did not know how to find the Tribunal because of his lack of English and understanding.’

    Then, at paragraph 41, his Honour observes:

    ‘I should also note that the applicant did not claim, let alone put any evidence before the Court, that even if this attempt was unsuccessful on the day of the hearing that he made any attempt to contact the Tribunal subsequently to tell it of any difficulties that he encountered.  While the applicant claimed that his friend who assisted him in preparing his protection visa application had gone back to China prior to the hearing, it is noteworthy that following dispatch of the Tribunal’s decision record to the address for service on 8 November 2005.., the applicants were able to arrange the making of an application to this Court on 12 December 2005. Indeed, were subsequently able to successfully find their way to the Court for the hearing.  In any event, as set out below [sic, above], none of this can affect the situation that the Tribunal was entitled, in all the circumstances, to precede in the way that it did.’

11. In my view his Honour was quite correct to make the last observation, that is, that the crucial matter is whether proper notice had been given, not whether the recipient had a good explanation for non‑attendance.  It is not without significance that the appellants now claim in their Notice of Appeal to this Court that:

    ‘I did not receive the letter dated 13 September 2005 which noticed me to attend the hearing held at 11 am on 12 October 2005 from Refugee Review Tribunal.’

    And:

    ‘I did not receive this letter.’

12. This is the exact opposite of their claims before the Federal Magistrate, that is, that they did receive the Notice but they could not find their way to the hearing because of their lack of English and understanding.

13. Putting that aside and returning to the issue as it was raised before the Federal Magistrate, it is apparent in my view that the Federal Magistrate conducted a comprehensive review of the relevant facts and law on this issue in his reasons.  First he records the facts and the first respondent’s submissions at paragraph 21 of his reasons in the following terms:

    ‘The Tribunal invited the applicants to a hearing pursuant to s 425.  This invitation was not returned to the Tribunal as undeliverable or unclaimed.  On what is before the Court now, the Tribunal complied with its obligations pursuant to ss 425 and 425A.  The invitation was sent to the applicants’ mailing address as notified by them…and the invitation complied with the requirements set out in s 425A.  As the first respondent submitted, the Tribunal complied with its statutory obligations in this regard and did not need to take further steps to contact the applicants.’

14. The Federal Magistrate then notes that additional steps were taken by the Tribunal to try to contact the appellants: see [22]. Based upon that fact, and taking into account that the appellants were unrepresented before him, he then records that he asked the first respondent to file supplementary submissions on whether the attempt to contact the appellants affected the Tribunal’s obligations under section 425 and 425A. He records that request at [23] to [24] of his reasons.

15. At [25] to [28] of his reasons, the Federal Magistrate then reviews the first respondent’s supplementary submissions including all the relevant authorities referred to and concludes at paragraph 29 as follows:

    ‘In the case currently before the Court, the applicants were invited to a hearing by a letter sent in compliance with the relevant statutory obligations set out in ss 425 and 425A of the Act.  The applicants did not appear before the Tribunal on the day, and at the time, and place, at which they were scheduled to appear.  That the Tribunal subsequently took additional steps…did not reveal jurisdictional error on the part of the Tribunal given that what is required by statute is that the applicants be invited, and that all requirements attendant to that invitation be complied with, and given the failure of the applicants to appear ‘on the day on which or at the time and place at which the applicant is schedule to appear’ (s 426A(1)(b)).  The Tribunal was entitled at that point to proceed to make a decision without taking further action.  Given the authorities above, the fact that it did take further action does not reveal jurisdictional error on its part.’

    CONSIDERATION

16. Moreover, the Federal Magistrate then proceeds to consider whether the check list mentioned in paragraph 29 as maintained by the Tribunal affected the position that he had reached in that paragraph and he concludes on that point at paragraph 33:

    ‘In all, however, given that the Tribunal complied with its statutory obligation pursuant to ss 425 and 425A, the applicants’ failure to attend at the time, date and place scheduled is sufficient to support the exercise of the Tribunal’s discretion to have proceeded without the applicants actually attending the hearing.  That it took some additional steps does not reveal jurisdictional error on its part.’

17. Having considered the Federal Magistrate’s reasons for decision and the various authorities referred to therein, it is my view that the Federal Magistrate was quite correct in reaching the conclusion, after a comprehensive review of the facts and law, that having sent the letter of 13 September 2005 to the appellants inviting them to attend the hearing on 13 October 2005 and having received no indication that the letter had not been delivered, the Tribunal had complied with its relevant statutory obligations and was then entitled to proceed with the hearing in the absence of the appellants pursuant to section 426A.

18. There being no appellable error present on the part of the Federal Magistrate, the appellants’ appeal must be dismissed.  I therefore order that the appellants’ appeal be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves .

Associate:

Dated:        5 June 2008

Counsel for the First Appellant:	In person
Counsel for the Second Appellant:	In person
Counsel for the First Respondent:	Ms K Hooper
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	10 April 2008
Date of Judgment:	10 April 2008