SZKAI v Minister for Immigration

[2008] FMCA 1049

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKAI v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1049

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. 

Migration Act 1958 (Cth) ss.424a, 425, 425A, 426A, 441A, 441C

Briginshaw v Briginshaw (1938) 60 CLR 336
NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592
Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401
SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980
SZHVM v Minister for Immigration and Citizenship [2008] FCA 600
SZIGQ & Anor v Minister for Immigration & Citizenship& Anor [2007] FCA 328
SZIVK v Minister for Immigration and Citizenship [2008] FCA 334
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant: SZKAI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 89 of 2007

Judgment of: Barnes FM

Hearing date: 23 July 2008

Delivered at: Sydney

Delivered on: 23 July 2008

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 89 of 2007

SZKAI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 14 December 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, who claimed to be a citizen of the Peoples Republic of China, arrived in Australia in March 2006 and applied for a protection visa in May 2006.  The application was refused and she sought review by the Tribunal. 

3. In a statement accompanying her protection visa application the applicant claimed that she had been introduced to Falun Gong in March 1997 by a friend, that she followed the teachings of Falun Gong and that she was selected to be in charge of organising Falun Gong activities.  The statement referred to the persecution of Falun Gong practitioners in China by the Chinese authorities, but made no further specific claims in relation to the applicant's situation.  The application was refused by a delegate of the first respondent who, among other things, referred to the absence of documentary evidence and independent country information supporting the applicant's claims and was not convinced that the applicant had a well-founded fear of persecution for a Convention reason. 

4. The applicant sought review by application lodged with the Tribunal on 31 August 2006.  In the review application she provided a residential address in a suburb of Sydney and no other personal contact details.  She did not appoint an authorised recipient or migration agent, but indicated that she wanted correspondence sent to her at an address which, from the copy of the application for review in the Court Book and from the Tribunal reasons for decision, was recorded as 239/4 0 Pitt Street, Sydney 2000 (that is with a space between the 4 and the 0).  The Court Book contains a copy of an acknowledgement of application addressed to the applicant at the address of 239/460 Pitt Street.  Also in evidence before me is a copy of the Tribunal application receipt, which refers to a contact address at 239/460 Pitt Street. 

5. The Tribunal wrote to the applicant by letters addressed to 239/4 0 Pitt Street, 239/460 Pitt Street and to the applicant’s home address dated 22 September 2006, (all of which are stamped “posted 22/9/06”) advising her that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone and inviting her to attend a Tribunal hearing on 20 October 2006 at a time and place specified.  The letters also advised the applicant that if she did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on her case without further notice.  Each of those letters is in the same form and invited the applicant to complete a response to hearing invitation form and to send any new documents or written arguments by 11 October 2006. 

6. In its reasons for decision the Tribunal described those invitations.  It noted that as one number on the address given on the application for review was unclear it had sent the invitation to the address on the review application and also to the address given on the application receipt and that, although not required to do so, it had also sent a copy of the invitation to the applicant's residential address.  I note that that this was the only residential address provided and the only address in the protection visa application. 

7. The Tribunal recorded the claims made in the applicant's protection visa application and that the applicant had provided no further information to the Tribunal.  It recorded that it wrote to the applicant at the three addresses described on “4 September 2006” inviting her to a hearing on “6 October 2006”.  On all the evidence before me, including the documents tendered which I am satisfied on the oral evidence of the solicitor for the respondent form part of the Tribunal's file, I am satisfied that the Tribunal wrote to the applicant by letters dated 22 September 2006, stamped as posted 22 September 2006, inviting her to a hearing on 20 October 2006 and that the reference in the decision to “4 September 2006” is a typographical error, as is the reference to a hearing date of “6 October 2006” instead of “20 October 2006”.  It is not in dispute that the applicant did not attend the hearing. 

8. The Tribunal recorded that two of the three invitations were returned to sender.  It clarified that those were the two invitations addressed to the Pitt Street addresses.  The invitation sent to the applicant's residential address was not returned to sender.  The Tribunal recorded that the applicant did not appear before it on the day on which or at the time and place at which she was scheduled to appear and did not contact the Tribunal to seek a postponement of the hearing.

9. However on 14 November 2006 the applicant wrote to the Tribunal to request “another chance of a hearing”.  A copy of that letter, which is stamped "received" by the Tribunal on that date, is in the Court Book.  The applicant requested another chance of a hearing “because by the time I received the letter for invitation for a hearing it was four days late”.  She explained that she asked someone to write a letter to the Tribunal to request another hearing, that she was not sure whether they had received it and that so far “she had not heard anything from the Tribunal about the hearing”.  There is no evidence before the Court as to any other letter received by the Tribunal from the applicant or anyone on her behalf asking for another hearing.  Nor was any evidence of such a letter put before the Court by the applicant in these proceedings.  The applicant also stated in her letter of 14 November 2006 that she had asked a friend to translate to the Tribunal her letter asking for another hearing because she had a lot of additional information to be submitted if she had a hearing. 

10. The Tribunal responded to the applicant by letter dated 15 November 2006.  In that letter a Tribunal officer referred to the invitations to a hearing on 20 October 2006 sent to the address for correspondence on the application for review which were returned to the Tribunal and the fact that although not required to do so the Tribunal had also sent a letter of invitation to the applicant’s residential address.  The Tribunal advised the applicant that it had decided not to offer her a further hearing and that the reasons would be given in the decision record.

11. In its reasons for decision handed down on 14 December 2006 the Tribunal recorded that it had declined the applicant’s request for another hearing.  It was satisfied that the applicant was properly notified of the hearing.  The Tribunal also referred to the fact that the address for correspondence on the review application appeared to have one digit missing and to the difference between the address on the application for review and the address on the application receipt.  It referred to the fact that it sent the invitation to both possible addresses and that both of these letters had been returned to sender.  The Tribunal also had regard to the fact that the applicant had not advised it of any alternative address for correspondence and that although not required to do so, it had sent a copy of the invitation to hearing to the applicant's residential address, which had not been returned to sender.  It noted that this was the same residential address as on the applicant’s letter of 14 November 2006.

12. The Tribunal found that as it had sent the invitation to the hearing to three different addresses, including the address on the letter of 14 November 2006, it did not accept that the applicant received the invitation to the hearing late. It was also of the view that the applicant had had a reasonable period of time to submit further information, as the application for review had been lodged on 31 August 2006. She had not done so. In those circumstances, pursuant to s.426A of the Migration Act1958 (Cth), the Tribunal decided to make a decision on the review without taking any further action to enable the applicant to appear before it.

13. In its findings and reasons the Tribunal accepted that the applicant was a national of the People’s Republic of China.  However it found that she had provided only a brief outline of her claims in the protection visa application (that she was introduced to Falun Gong around March 1997 for the purpose of curing a long term chronic illness and that she became so good at practicing Falun Gong she was selected to be in charge of many Falun Gong activities).  The Tribunal had regard to the fact that the applicant gave no details about the nature and extent of her practice or what was involved in practicing Falun Gong and that whilst she stated that the government had started to persecute Falun Gong practitioners in 1999, she did not state whether she had continued to practice or whether she personally had any problems because she was a Falun Gong practitioner.  Nor had she provided any details as to whether she was currently a Falun Gong practitioner.

14. Given the lack of details in the applicant's claims and the lack of opportunity to explore the details in those claims or their veracity the Tribunal was not satisfied that the applicant was or had been a practitioner of Falun Gong on the evidence before it.  Nor was it satisfied that she was a person of interest to the authorities in China.  It was unable to be satisfied on the evidence before it that she would be persecuted for reason of a real or imputed adherence to Falun Gong if she returned to the People’s Republic of China now or in the foreseeable future.  The Tribunal concluded that it was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if she returned to China.

15. The applicant sought review of the Tribunal decision by application filed in this Court on 10 January 2007. She filed an amended application on 18 June 2007. There are two grounds in the amended application. The first alleges a failure to comply with s.425 of the Migration Act and the second a failure to comply with s.424A.

16. On 15 July 2008 the applicant filed two versions of statements in support of her application for review.  In one of these she purported to give evidence in relation to her claims about what occurred in China.  Both statements addressed the circumstances in which she failed to attend the Tribunal hearing. 

17. Because of the form in which those documents were filed the applicant was given the opportunity to give oral evidence.  She adopted those statements as her evidence before the Court.  She was also given the opportunity to add to her evidence in relation to the circumstances in which she failed to attend the Tribunal hearing.  In oral evidence she complained of an arm ache, that she had been to hospital and been put on pain killers and that she had had a stomach ache.  She also gave evidence that after she received material from the Tribunal it was too late, that she had asked a friend to write on her behalf, but that her application had still been refused.  She claimed that this was not fair and that she had wanted the opportunity to tell the Tribunal about her experiences in China.  She was not required for cross-examination. 

18. The applicant’s statements also raised the possibility that she was seeking to take issue with the conduct of the person she claimed had assisted her in connection with her application for a protection visa, although such a claim was not raised very clearly.  When given the opportunity to expand in oral evidence on the circumstances in which she failed to attend the Tribunal hearing the applicant did not elaborate on this issue.  Nonetheless, in light of the principles considered by Besanko J in SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980, it is appropriate to consider whether the applicant sought to raise, and if so whether she has established a case of third party fraud as considered by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401.

19. The applicant's evidence in relation to what occurred after she came to Australia is that she came to Melbourne, that she was unable to find a job there and then came to Sydney.  In April 2006, through the introduction of a friend, she met a person who called himself “Solicitor Chang” at a café.  He asked her something about her own experience and the persecution her husband had suffered.  He told her he would help with the refugee application.  She paid him $650 and he said her application would be successful and she would certainly be granted refugee status.

20. Her evidence is that she did not understand what “refugee” meant or what “refugee status” meant, but that she only wanted to survive in Australia.  She gave evidence about her illness and her efforts to seek medical treatment, including attending Campsie Hospital and that fellow townspeople helped her find a traditional Chinese doctor in Melbourne.  She continued:

    Before I went to Melbourne, I often contacted Solicitor CHANG on the phone.  I told him my reason to go to Melbourne.  I also told him that he should contact me without delay for any of my letters or correspondences.  My trip to Melbourne must not affect my appeal and my appearance on hearing.  I did not go to Melbourne until he promised to do what I requested.  After my arrival in Melbourne, I received treatment…

21. She described her circumstances and referred to her need to care for her son and continued:

    By the end of October 2006, I had a good recovery from my illness and I was able to look after myself in my daily life.  In order to survive, I had to return to Sydney.  When I read the letter from Australian government, I immediately contacted Solicitor CHANG.  However he turned off his mobile phone instead of answering my call.

22. The applicant asked her boss at her workplace to contact “Solicitor Chang”.  Through her boss she sought return of her “application materials”.  She said that “Solicitor Chang” finally agreed to meet her at Central and returned those materials to her.  The documents were in English so she did not understand them.  She claimed that her friend had someone translate them into Chinese and that:

    (It turned out) Solicitor CHANG simply did not prepare my statement according to my experience.  I was very angry, but what could I do?  After that, he simply would not answer my phone when I rang him.  As I do not understand English, I had to ask my friend to help me with “My Statement for Appeal”.

23. I have considered whether the evidence before the Court establishes third party fraud in the manner considered in SZFDE.  The applicant takes issue with the conduct of a person she refers to as “Solicitor Chang”.  There is no indication in any of the material in the Court Book that the applicant appointed an authorised recipient or had the assistance of a migration agent, except for the fact that she provided an address for correspondence which differed from the residential address she provided in connection with her application for review.

24. In light of the decision of Finkelstein J in SZIVK v Minister for Immigration and Citizenship [2008] FCA 334, the absence of notification of the person named as “Solicitor Chang” of the allegations that are made against him is not a reason for failing to proceed to consider the case raised by the applicant. In SZIVK at [18] – [27] Finkelstein J considered a situation in which a Federal Magistrate had declined to deal with a claim of fraud of a migration agent where the migration agent had not been put on notice of the allegations made against him. Finkelstein J referred to the nature of adversarial proceedings before the Court and the need for the parties to define the issues to be contested, select the witnesses they intended to call and choose the evidence they wished to lead and observed that it was common for parties to make allegations which might involve criticising a third party who might not be called as a witness. His Honour found that there was no rule to the effect that the criticised person must be given notice that he was to be attacked in the evidence to be given. His Honour addressed the reasons for the absence of any such rule and concluded that there was no justification for the Federal Magistrate to refuse to decide whether the migration agent had acted fraudulently on account of a lack of notice to that person.

25. Indeed, Finkelstein J suggested that the absence of the third party in a case such as this is a matter for the respondent and that if any party should have been penalised for not having given notice it should have been the respondent, not the applicant as had occurred in the decision at first instance considered in SZIVK.  His Honour went on to consider whether the facts asserted by the appellant if true could constitute fraud on the Tribunal. 

26. In SZFDE a Federal Magistrate had found that an agent who had advised that applicants should not attend a Tribunal hearing because the Tribunal was not accepting visa applications at the time, had acted fraudulently, for personal gain, extracted money under false pretences and had by fraudulent behaviour discouraged or dissuaded the applicants from attending the Tribunal hearing.  On appeal the finding that the agent acted fraudulently was not challenged. 

27. The High Court discussed the meaning of fraud, noting that fraud had been found by the Federal Magistrate. Relevantly the Court indicated that what had to be established was that the person in question (be they a migration agent or a person purporting to act in that way) was fraudulent in a way that affected the Tribunal's decision-making process, in particular under Part 7 of the Migration Act (SZFDE at [42] – [51]). In that case the High Court found (at [51]) that “no doubt” the agent was fraudulent in his dealings with the appellants and that this fraud had the “immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants” (at [49]).   

28. As the Full Court of the Federal Court stated in Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501 at [33]), an omission to notify an applicant of the date of a Tribunal hearing may have adverse consequences for that applicant if the Tribunal proceeds to make a decision under s.426A in circumstances where the applicant has failed to attend the hearing. However it was said to be clear from SZFDE (at [51]) that before such omission can be said to have occasioned a fraud on the Tribunal “it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant”.  The Full Court continued at [33]: “The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. … particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368”.

1. I have considered whether there is evidence of acts of omissions by the person described as “Solicitor Chang” which can be characterised as dishonest or as otherwise as amounting to fraud on the applicant and on the Tribunal.  However, even taken at its highest I am not so satisfied on the evidence before the Court.  The applicant told “Solicitor Chang” of her intention to go to Melbourne.  He did not communicate with her while she was in Melbourne.  It can be inferred from what she says that she received the hearing invitation letter addressed to her home address from the Tribunal and at that point she contacted “Solicitor Chang” and that he was unwilling to talk to her and returned documents to her.

2. If the applicant contends that “Solicitor Chang” is responsible for her failure to attend the Tribunal hearing, it has not been established that there was fraud in the requisite sense, such as dishonest conduct of which she was the unwitting victim.  In any event it has not been established that there was a causal link between any claimed fraud and the applicant not attending the hearing.  The applicant received the letter sent to her home address.  She received it late because, on her own evidence, she was in Melbourne.  The hearing invitations, sent to the address for correspondence on the application for review and to the alternative but similar Pitt Street address, were both returned to sender and hence, presumably, were not actually received by anyone on behalf of the applicant at the Pitt Street addresses.  However the evidence before the Court does not establish fraud as considered by the High Court in SZFDE.  The limited evidence before the Court is not such as to establish fraud in relation to the use of either of the Pitt Street addresses.  

3. Moreover, even if it might be intended to suggest that there might in some way be in breach of such regulations or the Migration Act Middleton J stated in SZHVM v Minister for Immigration and Citizenship [2008] FCA 600, that even if there had been a breach of the regulations applicable to a migration agent this would not of itself lead to a finding of fraud in the relevant sense. In any event in the absence of further identification and evidence about “Solicitor Chang” this was not made out.

4. If the applicant does have a complaint in relation to the person she describes as “Solicitor Chang”, as counsel for the first respondent indicated, it may be that she has some recourse through the Migration Agents Registration Authority or the Law Society of New South Wales.  However this is not a case in which the complaints that she makes about “Solicitor Chang” are such as to establish any more than that there may arguably have been negligence or poor advice or a failure to communicate.  No jurisdictional error is established on this basis.

5. Turning then to the substance of the grounds in the amended application.  Ground one is that:

   The Tribunal did not consider my application according to S425 of the Migration Act 1958. I was not given an opportunity to explain my case. I sent letters to immigration asking for a rescheduled hearing because I had not received the first hearing invitation, but I was not given the opportunity. RRT did received the requesting, but RRT refused to give me the chance (sic).

6. In oral submissions the applicant told the Court that she had been unwell and had failed to attend the Tribunal hearing and that when she came back (from Melbourne) it was a bit late and that she sought an opportunity to attend the Tribunal hearing, but was not given that opportunity.  She wanted the opportunity to put to the Tribunal information about her situation in China.  She told the Court that her claims differed from those in the protection visa application. 

7. Insofar as this is a contention that the Tribunal failed to comply with its obligations under s.425 of the Migration Act, such ground is not made out. The Tribunal's obligation to invite the application to a hearing under s.425 in accordance with s.425A was met in relation to the content of the invitation to appear, which provided the information required under s.425A and described the effect of s.426A.

8. The Tribunal wrote to the applicant at the address for correspondence provided in the protection visa application.  As already noted, that address seemed deficient in that it was recorded on the protection visa application as “239/4 0 Pitt Street Sydney”.  However the Tribunal not only sent a letter to the address as it appeared on the review application (that being the last address for service provided to the Tribunal by the applicant in connection with the review) but also, out of an abundance of caution, to the address as it appeared on the application receipt: “239/460 Pitt Street”.  Both of those letters were returned to sender.  There is nothing in the material before the Court to indicate that the Tribunal failed to comply with its obligations.  Each of those letters, on the evidence that is now before the Court was stamped as “posted 22 /9/06”, as was the letter which the Tribunal chose to send to the

   
   

   last residential address of the applicant (see s.441A(4)(c)(ii)), notwithstanding that she had provided an address for service in connection with the review. While the letter sent to the address for service was returned to the Tribunal, I note the operation of s.441C in relation to deemed receipt of such invitations seven days after the date of the document.

9. In any event, it is clear from the applicant's evidence that she did in fact receive the letter that was sent to her residential address.  In her letter of 14 November 2006 she sought another opportunity for a hearing. 

10. The applicant claimed that by the time she received the letter it was four days “late”.  It is apparent however from the applicant's evidence that her explanation for this is that she did not return to Sydney until the end of October 2006.  She did not contend that the letter did not arrive until four days after the date for the hearing.

11. In these circumstances, the issue that the applicant raises is not that the Tribunal failed to comply with its obligations to invite her to a hearing, rather she takes issue with the Tribunal's exercise of its power under s.426A of the Act to make a decision on the review without taking any further action to allow or enable her to appear before it.

12. The first respondent relied on authorities in relation to the scope of the Tribunal's power to proceed under s.426A of the Act which are of general assistance, notwithstanding that neither of the authorities arose in precisely the same circumstances as those that are presently before the Court.

13. It is clear that if the Tribunal has complied with s.425 and s.425A of the Act inviting an applicant to attend a hearing, it may as Downes J stated in SZIGQ & Anor v Minister for Immigration & Citizenship& Anor [2007] FCA 328 at [5], proceed under s.426A of the Act to consider and decide the matter without making any further enquiries. There are a number of authorities to this effect as cited by Downes J in SZIGQ, in several of which the invitation was allegedly never received by the applicant.  It is the case that the letter sent to the address for service provided in the review application was returned to sender and not actually received in that sense.  However the applicant did receive the invitation sent to her home address.  She received it late because she was in Melbourne until the end of October 2006. 

14. Nonetheless, as conceded by the first respondent, it is necessary to have regard to the manner in which the Tribunal exercised its power under s.426A. As Greenwood J stated in NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 at [21]:

    … the power conferred upon the Tribunal cannot be exercised capriciously and must be exercised reasonably, the election to make a decision on the review is not, by itself, the expression of an unreasonable exercise of the power.  It is expressly contemplated by the section. 

15. His Honour continued:

    If the evidence demonstrates in a particular case that the exercise of the power to make a decision on the review was capricious or wholly failed to take account of any matter put before it as to the reason for the failure on the part of the appellant to attend before the Tribunal, a question of procedural fairness might arise.

16. In that case reference was made to Minister for Immigration and Multicultural and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439 in which an applicant for a protection visa had claimed that the Tribunal was on notice that he may not have received the invitation because the letter had been returned to sender and in those circumstances he did not appear at the hearing. In this case two of the three letters sent to the address for service were returned to sender and the applicant did not appear at the hearing. However, the letter sent to the applicant’s home address was not returned to sender. In any event as Full Court of the Federal Court stated in SZFHC at [39]:

    … it is clear that ss 425 and 425A of the MigrationAct are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s 425A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.

17. In this case the Tribunal had in fact already taken other steps to communicate with the applicant in light of the uncertainty about the correct address for service, in that it also sent letters of the same date to another possible Pitt Street address and to the applicant’s residential address.  There is no indication in the material before the Court of any other method of contacting the applicant, such as a telephone number.  Hence it is not necessary to consider whether the Tribunal would be under an obligation to attempt to contact the applicant by some other method in circumstances where SZFHC might be distinguished, as the issue does not arise.

18. I have considered whether the Tribunal failed to exercise its power under s.426A reasonably or exercised the power capriciously as considered in NBBL.  It is apparent on the material before the Court that the Tribunal considered the applicant's request of 14 November 2006 for a further hearing.  It had regard to the attempts it had made to contact the applicant to invite her to the hearing at the relevant time, the fact that two of the invitations were returned to sender, but that the invitation sent to the residential address was not returned to sender.  On that basis the Tribunal did not accept that the applicant received the invitation to the hearing “late”.

19. The Tribunal also had regard to the fact that the application for review had been lodged on 31 August 2006 and that the applicant had had a reasonable period of time to submit further information.  There is no indication on the material before the Court or any suggestion by the applicant that she submitted any further information to the Tribunal in support of her case. 

20. Insofar as the letter of 14 November 2006 may have been intended to claim that the applicant had already asked someone to write a letter to the Tribunal but was not sure whether the Tribunal had received it, there is no evidence before the Court of any letter from the applicant seeking a further hearing other than the letter of 14 November 2006.

21. It was open to the Tribunal pursuant to s.426A of the Act to make a decision on the review without taking any further action to enable the applicant to appear before it. It cannot be said that its decision to do so was capricious or unreasonable, albeit another decision maker might have taken a different approach. Nor can it be said that it failed to take into account any of the matters put before it by the applicant as the reason for her failure to attend the hearing It was not satisfied that she had received the invitation late and was of the view she had had an opportunity to submit further information to it.

22. In those circumstances no jurisdictional error arising out of the manner in which the Tribunal decided to exercise its power under s.426A to make a decision on the review without taking any further action to allow or enable the applicant to appear before it has been established. That is so notwithstanding the fact that the Tribunal does have the power to reschedule the applicant's appearance before it. It is not under an obligation to do so. Hence no jurisdictional error is established on the basis contended for in ground one of the amended application.

23. I note also that, insofar as the applicant contended in submissions that she did not go to the hearing because she was ill and that she should have been given an opportunity to attend, there is nothing in the material before the Court to indicate that she raised an issue of illness with the Tribunal either before or after the scheduled hearing date, or that she put any evidence before the Tribunal to support such a contention.

24. The final ground in the amended application is that the Tribunal failed to comply with s.424A of the Act in that it did not notify the applicant of the reason or part of the reason for affirming the decision and that she could not comment on the reason or part of the reason for affirming the decision. It has not been established that there was any information subject to the obligation in s.424A(1) of the Act.  I note that there was no particularisation of any such information, either in the amended application or in the applicant's submissions in which she took issue with the failure of the Tribunal to put to her its provisional reasoning.  It is well established that the Tribunal's reasoning process, or its provisional reasoning, is not information for the purposes of s.424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [477]).

25. As stated by the majority of the Federal Court in VAF, and adopted with approval in SZBYR, information under s.424A(1) does not extend to the conclusions arrived at by the Tribunal in weighing up evidence by reference to gaps, defects, lack of detail or specificity of evidence.  In this case the Tribunal reached its conclusion based on the lack of details in the applicant’s protection visa claims and the absence of opportunity to explore detail in those claims or their veracity.  In the context of the Tribunal decision this is clearly a reference to the applicant's failure to attend the Tribunal hearing at the place and time specified in the hearing invitation.  The Tribunal was unable to be satisfied on the evidence before it that the applicant had a well founded fear of persecution as claimed.  More generally the applicant claimed that her materials were not assessed fairly.  That general contention is not made out on the material before the Court given the basis for the Tribunal reasons for decision.  

26. I also note for the benefit of the applicant that insofar as she appeared at least at one point to seek that that Court consider her claims about what happened to her in China, it is not for the Court to determine whether or not she is a refugee.  Merits review is not available in this Court.

27. As no jurisdictional error has been established, the application must be dismissed.   

RECORDED NOT TRANSCRIBED

1. The applicant has been unsuccessful and the first respondent seeks costs in the sum of $4,500. The applicant took issue with the fairness of the judgment, but also told the Court that she had no work because she had been injured. She described her injury and indicated that she was not well. However the applicant's lack of funds or her state of health and her concern about the judgment are not reasons for departing from the general principle that the unsuccessful applicant should meet the costs of the respondent, although her lack of funds may be a matter to be taken into account by the first respondent in determining when and how to seek to recover such costs. The amount sought is appropriate having regard to the nature of this and other similar matters and the provisions of the Federal Magistrates Court Rules.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  6 August 2008