SZQGB v Minister for Immigration and Citizenship
[2012] FCA 113
•21 February 2012
FEDERAL COURT OF AUSTRALIA
SZQGB v Minister for Immigration and Citizenship [2012] FCA 113
Citation: SZQGB v Minister for Immigration and Citizenship [2012] FCA 113 Appeal from: SZQGB v Minister for Immigration [2011] FMCA 934 Parties: SZQGB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 2117 of 2011 Judge: COLLIER J Date of judgment: 21 February 2012 Legislation: Migration Act 1958 (Cth) ss 425, 441A(4)(a), 441G Cases cited: re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 cited Date of hearing: 20 February 2012 Place: Sydney (Video to Brisbane) Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 22 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A McCormick of Minter Ellison Solicitor for the Second Respondent: The Second Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NSD 2117 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQGB
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
21 FEBRUARY 2012
WHERE MADE:
SYDNEY (VIDEO TO BRISBANE)
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NSD 2117 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQGB
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
21 FEBRUARY 2012
PLACE:
SYDNEY (VIDEO TO BRISBANE)
REASONS FOR JUDGMENT
The appellant appeals from a decision of Barnes FM delivered on 8 November 2011 by which her Honour dismissed an application to review a decision of the Refugee Review Tribunal dated 3 May 2011 not to grant the appellant a Protection (Class XA) visa.
Background
The appellant is a citizen of the People’s Republic of China and arrived in Australia in August 2010 and applied for a protection (Class XA) visa in September 2010. On 21 January 2011 the delegate refused the application. The appellant sought a review of this decision and lodged an application with the Tribunal on 17 February 2011.
The appellant claimed to fear harm from the Chinese authorities because he protested against the grocery store he owned being demolished for development without inadequate compensation being offered. He claimed that he attempted to prevent police dismantling his shop, and that he had appealed to the authorities. As a consequence, the appellant claimed to have been detained by police on two occasions in January 2010 and June 2010.
The Tribunal
The appellant failed to attend the Tribunal hearing. The Tribunal considered the appellant’s claims but found these claims lacking in detail. The Tribunal found that there was no evidence before the Tribunal to indicate that the requirement to dismantle the grocery shop was for any other reason than old village reconstruction. Because the appellant did not attend the Tribunal hearing, the Tribunal was unable to question him in more detail in relation to the circumstances leading to the decision to dismantle the shop. The Tribunal was also unable to verify any details relating to the issue of compensation or the appellant’s claims about being detained.
The Federal Magistrates Court Proceedings
On 17 May 2011 the appellant filed an application for judicial review with the Federal Magistrates Court and included the following grounds:
1.RRT considered my case unfairly. They doubt my claim without substantive evidence.
2. Procedural fairness has been denied by RRT.
3.RRT did not consider my situation in China. I will be put in jail if I go back.
(Errors in original.)
The learned Federal Magistrate stated that there was no evidence that the Tribunal considered the appellant’s case unfairly. Insofar as the grounds of appeal may have been taken to be an allegation of actual or apprehended bias, this was not made out. Further, there was nothing in the circumstances of this case to give rise to any duty to inquire on the part of the Tribunal. The Federal Magistrate found that the Tribunal had complied with s 425 of the Migration Act 1958 (Cth) (“the Act”) and with its procedural obligations in that respect.
The appellant claimed he never received the Tribunal invitation to a hearing. However the Federal Magistrate was satisfied that the hearing invitation letter was dispatched by prepaid post on 15 March 2011 pursuant to s 441A(4)(a) of the Act, and that it was properly sent to the person who had been nominated as authorised recipient for the applicant. Her Honour found that the appellant had provided a residential address in Queensland, as well as the post office address of his authorised adviser in New South Wales. Her Honour found that, accordingly, the Tribunal had complied with its obligations pursuant to s 425 of the Act in relation to inviting the appellant to the hearing before it.
Application to this Court
On 25 November 2011 the appellant filed an appeal in this court with the following grounds of appeal summarised:
1. RRT has bias against me and did not make a fair decision for my application
2.I had clarified and repeated all points at the hearing of the Federal Magistrates Court, but the judge refused my application.
3.I believe that my case was not considered carefully by the Federal Magistrates Court.
(Errors in original.)
In Court this afternoon there was no appearance by the appellant. Mr McCormick for the Minister tendered copies of letters written by the Minister’s solicitor, Minter Ellison, to two separate addresses nominated by the appellant as addresses for service. In those letters the Minister informed the appellant of the date and time of the hearing. A letter from the Registrar of the Court dated 9 December 2011 was of similar effect. In separate letters to both the New South Wales and Queensland addresses nominated by the appellant the appellant was informed that the hearing was to be held in Sydney.
I adjourned the matter for a short time, during which my associate endeavoured to contact the appellant by telephone. It transpired that the appellant had assumed (incorrectly) that the hearing was to be at the Commonwealth Law Courts in Brisbane, and had become confused in relation to correspondence he had received.
The hearing resumed by video from Brisbane.
In oral submissions, it was clear that the appellant's primary claim related to his non-attendance at the Tribunal hearing. More precisely, the appellant clearly felt aggrieved that the hearing had proceeded in his absence. To that extent, the appellant claimed that the Tribunal hearing had been procedurally unfair.
Taking the oral submissions of the appellant into account, I now turn to the grounds of appeal.
In relation to ground 1, it is well-settled that an allegation of bias is a very serious claim, which must be clearly made and distinctly proved (re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425). In this case the Federal Magistrate below found that there was no evidence before the Court to establish either actual or apprehended bias on the part of the Tribunal. No error has been demonstrated in respect of this finding of her Honour.
In relation to ground 2, I note that this ground of appeal is not particularised. In any event, the fact that the Federal Magistrates Court did not find in the appellant’s favour is not, in itself, either a ground of appeal or reason to overturn the decision below.
To the extent that this ground of appeal seeks to agitate the appellant's concerns in relation to his failure to receive the invitation to attend the Tribunal hearing, I make the following observations.
The appellant claims that he either did not receive the invitation to the Tribunal hearing or could not attend the hearing because he was living in Queensland at the time, and the invitation did not reach him because of the floods in Queensland in late December 2010 and January 2011. However I note from the material before me that the Tribunal sent an invitation to the appellant to appear before it in relation to his visa application on 15 March 2011. There is no material before me to suggest that the any circumstances relevant to floods in south-east Queensland affected either the appellant's ability to receive the invitation on or around 15 March 2011, or affected his ability to travel to attend the hearing in Brisbane on 15 April 2011.
More specifically however, as the Federal Magistrate below correctly observed, s 441G of the Act provides as follows:
1) If:
(a) a person (the applicant) applies for review of an RRT-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient.
(4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.
(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.
In this case it is not in dispute that the appellant had nominated an adviser as his authorised recipient, and that the Tribunal had sent the invitation to appear to the Tribunal to the appellant through the adviser. Indeed, as is clear from s 441G(1), the Tribunal was required to send the invitation to appear to the adviser rather than directly to the appellant. As her Honour below found, in the circumstances the Tribunal complied with its obligation to invite the appellant to a hearing in accordance with s 425 of the Migration Act and with its procedural obligations in that respect.
Accordingly, I am not satisfied that the Tribunal decision was, in this respect, infected by jurisdictional error in the form of procedural unfairness.
In relation to ground 3, I am not satisfied that her Honour failed to give due and careful consideration to the appellant’s case. Indeed, the decision of her Honour is detailed and thorough.
The appeal is dismissed with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 21 February 2012