SZKHY v Minister for Immigration and Citizenship
[2008] FCA 206
•25 February 2008
FEDERAL COURT OF AUSTRALIA
SZKHY v Minister for Immigration and Citizenship [2008] FCA 206
SZKHY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2204 OF 2007GRAHAM J
25 FEBRUARY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2204 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKHY
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
25 FEBRUARY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent Minister’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 2204 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKHY
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
25 FEBRUARY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant was born in Beijing in the People’s Republic of China on 5 November 1961. She obtained a passport on 10 June 2003. She ended up arriving in Australia on 21 November 2005, having left the People’s Republic of China on the previous day.
On 28 November 2005 she lodged an application for a Protection (Class XA) visa.
In her application, she provided a statement directed at establishing that she had a well-founded fear of persecution warranting her acceptance as a refugee within the meaning of the Refugees Convention, being the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Refugees Protocol, being the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. Her statement provided as follows:
‘I am a Falun Gong member. When the Chinese authorities started to crackdown Falun Gong, I was in Beijing. I participated in its activities to stand against the government on crackdown of Falun gong, and supplied food and drinks to the people joining demonstrations. During that period of time, I witnessed that the Chinese government arrested members, and pushed them into cars to take them away. Some of our members were beaten by police. I did not have a job and I spent most of my time on Falun Gong, I received financial support from Falun Gong organization as well. I believe that Falun gong is doing well for people’s health and life. I have never thought of anything wrong with Falun Da Fa. In 2002, police took me away from my home for questioning for 24 hours. I was physically tortured, and could not have proper sleep and food. When I returned home, my son could hardly recognise me when he saw me. I continued to practice Falun gong after that. As soon as I got my passport in June 2003, I tried to leave China, however, not successful. In November 2005, I could successfully leave China and came to Australia for protection. I can not return to China. I will face further persecution from the Chinese government in China.’
On 20 February 2006, the Minister’s delegate refused the appellant’s application for a protection visa.
On 27 March 2006, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision.
On 14 September 2006, the Tribunal extended an invitation, to which I will refer again later, for the appellant to come to a hearing on 17 October 2006. The Tribunal’s letter indicated that it had considered the material before it in relation to the appellant’s application but was unable to make a decision in her favour on that information alone. She was invited to the hearing of the Tribunal and to bring others with her to obtain oral evidence and present arguments in support of her claims.
On 17 October 2006, the appellant failed to appear before the Tribunal which proceeded to decide the application for review on the papers. The Tribunal affirmed the decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa.
On 7 March 2007, the appellant filed an Application in the Federal Magistrates Court of Australia, seeking constitutional writ relief in respect of the Tribunal’s decision. An Amended Application was filed on 31 May 2007, which was heard before a Federal Magistrate on 19 October 2007 and decided by him on that day. The Court ordered that the Application, as amended, be dismissed and that the appellant pay the respondent Minister’s costs in the sum of $2,730.00.
On 8 November 2007, the appellant filed a Notice of Appeal in this Court. There were relevantly two grounds in the Notice of Appeal, both covered by the paragraph numbered 1. For convenience sake, I will divide the grounds into two and identify them as 1(a) and 1(b). They were as follows:
1(a) ‘I have been a Flun Gong practitioner. I didn’t have a job. I spent a lot of my time on Falun Gong. I’ve never thought of anything wrong with Falon Gong. I lived in Beijing where I participated in the activities to stand against the government on crackdown of Falun Gong. In 2002 I was took away from my home for questioning for 24 hours. I was tortured physically, and couldn’t have proper food and sleep. I continued practice of Falun Gong after then. After I arrival of Australia, I applied for protection visa, but the Refugee Review Tribunal failed to take into account the fasts [sic] which they are required to take into account, Giving rise to jurisdictional error.’
1(b) ‘Additionally, the Refugee Review Tribunal didn’t make its further action to inform me of attending its hearing due to the fact that my migration agent didn’t tell me any hearing news of Refugee Review Tribunal.’
I will deal firstly with ground of appeal 1(a) as I have defined it. The appellant elected not to file any written submissions in support of her appeal. When invited to address the Court in respect of ground 1(a), her response was to the effect that she would like the Court to give her another chance to go back to the Tribunal. No jurisdictional error was relied upon and nothing other than a merits review was sought, which this Court is unable to provide. That ground fails.
In relation to ground 1(b) as I have defined it, there is an issue as to whether notice of the Tribunal hearing on 17 October 2006 was duly given.
It is clear from the documents within the appeal book that since her arrival in Australia, she has resided at various addresses in Ashfield, Bonnyrigg Heights and Fairfield. In respect of the changes, it seems clear that on 20 February 2006 and 30 August 2006, the appellant kept the Department informed of her change of address details. Whilst the appellant notified the Department of changes to her residential address and address for correspondence, she did not notify the Tribunal of any change in her mailing address, which was specified to be a Post Office box at the Haymarket Post Office at Haymarket in New South Wales. Not surprisingly, the Tribunal’s invitation to attend a hearing was directed to the appellant at the mailing address which she had provided. There is nothing before the Court to suggest that the appellant had any notice of the relevant invitation. She certainly did not attend the hearing at the time and place specified.
In the circumstances, the Tribunal Member proceeded to deal with the matter on the papers. He was not satisfied that the claims which she made in her application were truthful. He was not satisfied that her claimed membership of Falun Gong was genuine and was not satisfied that there was a real chance of her suffering harm in the foreseeable future. In the circumstances, the Tribunal affirmed the decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa.
This is not a case where the notice inviting the appellant to a hearing before the Tribunal was stultified by fraud and may be contrasted with SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401 (‘SZFDE’).
In SZFDE the High Court said at [53]:
‘…there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.’
The appeal book includes an affidavit apparently filed with the original application in the Federal Magistrates Court of Australia, which was sworn by the appellant on 4 March 2007. There is no material before the Court to suggest that the affidavit was read on the hearing of the application before the Federal Magistrates Court of Australia, nor is there anything to suggest that oral evidence was given before the Federal Magistrates Court. The appellant has informed me that she did not give any oral evidence. In what is described as annexure A to the affidavit there is certain material to which I will refer in a moment. Paragraph 2 of the affidavit identified annexure A as being a letter to the Court, explaining why the appellant delayed the lodgement of her application in the Court. The text of the letter to the court included:
‘After the agent lodged by application for reviewing of the decision…the agent didn’t call me about attending the hearing of RRT. And I also didn’t get any letter from RRT.’
The papers do include a copy of a facsimile apparently sent to the Tribunal on 12 February 2007 at about 1.19 pm bearing the words ‘Please send a copy of my decision to the new address’. Later on that day, it would appear that the Tribunal sent a copy of the Tribunal’s Statement of Decision and Reasons to the appellant at her Fairfield address.
In respect of ground 1(b), the appellant indicated that she had little knowledge of the law. She gave her material to her migration agent and then waited and waited to hear what was happening. In February 2007, she contacted her migration agent who apparently looked up her case on her computer and proceeded to inform her that she had lost. She says that she did not have any money to employ a lawyer and did not know what to do.
The Act makes it clear that a document may be dispatched by the Tribunal to an appellant by prepaid post to the last address for service provided to the Tribunal by the recipient in connection with the review. It seems clear that the Tribunal duly sent the invitation to the appellant in that way by posting the invitation to the appellant at her Haymarket Post Office box address. It is unnecessary, for present purposes, to do more than refer to the provisions of ss 425, 425A, 426 and 426A in relation to the conduct of the Tribunal in dealing with the application for review in the absence of the appellant. By dealing with the matter as it did, the Tribunal did not commit any jurisdictional error. Accordingly, the appeal should be dismissed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 29 February 2008
The appellant appeared in person. Counsel for the First Respondent: S A Sirtes Solicitor for the First Respondent: Sparke Helmore The Second Respondent filed a submitting appearance. Date of Hearing: 25 February 2008 Date of Judgment: 25 February 2008
1
0