SZIXH v Minister for Immigration and Citizenship

[2007] FCA 350

FEDERAL COURT OF AUSTRALIA

SZIXH v Minister for Immigration and Citizenship
[2007] FCA 350

SZIXH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2203 OF 2006

RARES  J
7 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2203 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIXH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES  J
DATE OF ORDER:	7 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.

3.The Refugee Review Tribunal be joined as the second respondent.

4.The appellant pay the first respondent's costs fixed in the sum of $2,200.

THE COURT NOTES:

5.The undertaking of Ms Rayment, the solicitor for the second respondent, to file a notice of submitting appearance by the second respondent submitting to any order the Court might make except an order as to 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 2203 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIXH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES  J
DATE:	7 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court SZIXH v Minister for Immigration and Multicultural Affairs [2006] FMCA 1690. The trial judge refused the appellant's application for constitutional writ relief against a decision of the Refugee Review Tribunal made on 19 April 2006 and handed down on 11 May 2006.

2. On 23 March 2006 the appellant had been invited to a hearing before the tribunal which had been set down for 18 April 2006. The appellant did not attend and the tribunal in exercise of its powers under s 426A of the Migration Act 1958 (Cth) made a decision on the review without taking any further action to enable the applicant for review to appear before it.

3. The appellant swore an affidavit on 2 June 2006 which was before his Honour in which he acknowledged that he had received the invitation to the hearing but said:

   ‘However, due in personal reasons I missed the hearing.  I did send a letter to postpone my hearing on 14th April 2006, but I did not receive any letter other than the refuse letter.’

4. The trial judge noted that there was no evidence or record of the tribunal to suggest that it had received or had any awareness of any letter from the appellant.  And he found that there was no evidence that the appellant had any reason not to be present.  His Honour noted that other than the appellant’s assertion in his affidavit of having sent a letter to the tribunal on 14 April 2006, there was no evidence to support a conclusion that the appellant had either sent the letter or was otherwise unable to attend the hearing.

5. Apparently before his Honour and certainly today in his submissions, the appellant contended that he was unwell at the time of the tribunal’s hearing.  He said to me that at the time of the tribunal’s hearing he was suffering from a cold and was taking tablets for that condition.  He complained that the tribunal had not telephoned him after he had sent his letter advising him either that the hearing for 18 April was to go ahead or of any arrangements for a postponement.

6. By reason of s 422B of the Act the provisions of Div 4 of Pt 7 of the Act are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.  The Act sets out in Div 4 of Pt 7 a scheme for the tribunal to give notice to applicants for review to attend hearings and provides for the consequences and powers of the tribunal if that invitation is not taken up by an applicant for review.

7. His Honour found that he was not persuaded that the appellant's claim that he had requested a postponement from the tribunal was made out and noted, correctly in my opinion, that he had no evidence before him that the appellant was sick or unable to attend.  There is no basis upon which, on the evidence before me, I can see an error in his Honour's reasoning or conclusion in this respect. 

8. That being so the tribunal, on his Honour's findings, had not received the appellant's letter if, indeed, one was sent.  But even if the letter was sent but not received by the tribunal the Act makes it clear that the tribunal was entitled to proceed as it did.  Having reviewed the evidence and the submissions made by the appellant I am of opinion that his Honour was correct to make the factual finding that he was not persuaded that an application for a postponement of the hearing had been made by the appellant to the tribunal.

9. The appellant also made a number of other challenges in his notice of appeal to this Court against the conclusion of the tribunal.  Although the notice of appeal is framed in terms in which the decision of the Federal Magistrates Court was challenged essentially the same grounds are raised in that challenge as the appellant had raised against the decision of the tribunal.  I have read the notice of appeal as an invitation to grant constitutional writ relief against the tribunal's decision on the same basis as the appellant argued such relief should flow before his Honour.

10. The appellant's grounds for relief against the tribunal's decision were that it was required to do substantial justice, there was some bias in its decision, it had an obligation to conduct further investigations and the legal assistance scheme should have assisted him.  I am not satisfied that there was any basis upon which the tribunal was required to do anything other than it did.  Its decision proceeds upon the basis as was required by s 65 of the Act that the appellant's claims that he was entitled to a protection visa because he had a well-founded fear of persecution based on his Christianity were not made out to the satisfaction of the tribunal.

11. The tribunal noted that there were a number of matters arising from the appellant's claims about which it needed further information before it could reach the state of satisfaction that the appellant was entitled to a visa.  It is not necessary for present purposes for me to recite them;  they are adequately set out in the tribunal's reasons.  The failure of the appellant to attend the hearing was the cause of the tribunal being unable to be satisfied about those matters. 

12. I am satisfied that there is no basis to suggest that the tribunal did not do substantial justice in accordance with the requirements of Div 4 of Pt 7 of the Act.  As his Honour pointed out there was no particularisation of any allegation of bias.  I agree with that finding.  It is indubitably correct on the evidence.

13. The appellant's next argument was that the tribunal was obliged to conduct further investigations. This misconceives the tribunal's inquisitorial functions and its powers under s 426A of determining the matter upon an applicant for review's failure to attend a hearing without taking any further action to allow or enable him or her to appear before it. His Honour pointed out that while it was within the tribunal's discretion to undertake the investigations it had no obligation to do so. There was no error in his Honour's conclusion that this ground was not made out.

14. The last ground of the appellant's argument was that there was a failure to provide him with legal assistance.  There is no obligation on the tribunal or anyone else to provide legal assistance to persons who wish to make claims for protection visas.  His Honour's decision in that regard is correct.

15. The notice of appeal also claims relief against the decision of the delegate of the Minister in refusing to grant a protection visa.  I have dealt with the appeal on the basis that what was sought was relief against the decision of the tribunal.  To the extent that the appeal seeks relief against the decision of the delegate it is misconceived:  Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344.

16. To the extent that the notice of appeal in fact makes claims that his Honour rather than the tribunal breached the rules of procedural fairness or did not do substantial justice or was in some way biased, I am completely satisfied that such grounds are without any substance whatsoever.  His Honour conducted the hearing at which the appellant had a full opportunity to be heard.  There is no basis whatsoever for suggesting that his Honour was other than completely impartial and acted according to law. 

17. For these reasons I would dismiss the appeal.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares .

Associate:

Dated:        13 March 2007

The Appellant:	In person
Solicitor for the Respondent:	Ms B Rayment, Sparke Helmore
Date of Hearing:	7 March 2007
Date of Judgment:	7 March 2007