SZRKJ v Minister for Immigration and Citizenship
[2013] FCA 176
•5 March 2013
FEDERAL COURT OF AUSTRALIA
SZRKJ v Minister for Immigration and Citizenship [2013] FCA 176
Citation: SZRKJ v Minister for Immigration and Citizenship [2013] FCA 176 Appeal from: SZRKJ & Anor v Minister for Immigration & Anor [2012] FMCA 1056 Parties: SZRKJ and SZRKK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 2027 of 2012 Judge: TRACEY J Date of judgment: 5 March 2013 Legislation: Migration Act 1958 (Cth), s 424A Cases cited: SZRKJ v Minister for Immigration [2012] FMCA 1056 Date of hearing: 5 March 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 30 Counsel for the Appellants: Mr J Hutton Counsel for the Respondents: Ms R Graycar
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2027 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRKJ
First AppellantSZRKK
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
5 MARCH 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeals be dismissed
2.The appellants pay the first respondent’s costs of the appeals.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2027 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRKJ
First AppellantSZRKK
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE:
5 MARCH 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
These are appeals from a judgment and orders of the Federal Magistrates Court dismissing applications for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 March 2012: see SZRKJ v Minister for Immigration [2012] FMCA 1056.
The appellants are Chinese citizens. The first appellant arrived in Australia on 21 June 2005. The second appellant arrived in May 2007. On 3 November 2011 the appellants applied for protection visas. A delegate of the first respondent made a decision to refuse the applications on 14 December 2011. The appellants then requested merits review by the Tribunal.
BACKGROUND
The first appellant claimed that he was a Christian and that he had attended an underground church in China since he was a child with his aunt and her family even though his parents were Buddhist and did not approve of his faith. He claimed that the church services were not held at a fixed address, but at different parishioner’s houses, and that his aunt would come and collect him from his family home and take him to services on foot or by bike.
The appellant claimed that he had been detained by Chinese authorities on a few occasions, that he had not been given food other than bread and buns during his detention, and that the adults detained with him had been beaten. He claimed that he had difficulties in getting his passport and a visa to come to Australia, and that he had to have his family seek help from other relatives and friends to get these documents.
The appellant claimed that the reason for his delay in applying for a protection visa after his arrival in Australia was due to the fact that he did not realise the student visa he arrived on was not a protection visa, and later that he consulted many migration agents but found they all told him different things and he was afraid of what would happen if his application failed.
The second appellant did not make her own claims for protection, but relied on her membership of the first appellant’s family unit.
THE TRIBUNAL’S DECISION
The Tribunal found that the first appellant was not a credible witness, his evidence being unreliable and inconsistent. The Tribunal further found that the evidence of both appellants was vague and lacked detail. The Tribunal was not satisfied that the first appellant was a genuine Christian, and did not accept any of his claims. The Tribunal was not satisfied that the first appellant would face a real chance of Convention related persecution either now or in the reasonably foreseeable future should he return to China. It rejected his application for a protection visa.
IN THE FEDERAL MAGISTRATE’S COURT
The appellants sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. They relied upon the following grounds:
“1. Jurisdictional Error.
2. Denial of natural Justice. I am not agree the decision which from the R.R.T.
3. Failing to take into account very relevant facts of the matter.”
(Errors in original).The Federal Magistrate rejected each of these grounds and dismissed the appellants’ applications. It is not necessary to review all of the reasons which he gave for his decision. This is because of the narrow grounds on which the appeals to this Court have been brought.
One of the appellants’ arguments before the Federal Magistrate was that they been denied procedural fairness by the Tribunal. This had occurred at the post-hearing stage of the Tribunal’s deliberations. Following an oral hearing the Tribunal sent a letter to the appellants in which they were invited to respond to certain identified matters which the Tribunal considered would be the reason, or part of the reason for affirming the delegate’s decision. The letter was sent pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”). The letter was sent on 2 March 2012. It sought a response by 9 March 2012. On 8 March 2012 the appellants’ migration agent, Mrs Grace Chen, wrote to the Tribunal seeking a two week extension of the period within which the appellants might respond to the matters raised in the Tribunal’s letter of 2 March 2012. The extension was sought on medical grounds but no medical evidence was submitted.
What then followed is set out in the Tribunal’s reasons as follows:
“… The Tribunal responded on 8 March 2012 and asked that the [first appellant] provide medical evidence that his conditions prevented him responding to the invitation by the due date. On 8 March 2012 the [appellants’] representative indicated that the [first appellant] might not be able to provide a medical certificate. On 12 March 2012, as the Tribunal had not heard from the [appellants’] representative, she was contacted to enquire as to whether she would be providing the medical evidence. The representative responded by stating that the detention centre administration did not provide medical certificates but she would put in writing a more detailed reason why the [appellant] cannot provide a medical certificate.
On 13 March 2012, as the Tribunal had not received the written submissions from the [appellants’] representative, it contacted the representative to inform her that the Tribunal would not grant the extension without medical evidence that the [first appellant] is not fit to respond to s 424A invitation but it would postpone making its decision until after COB Friday 16 March 2012. She indicated that the [first appellant] would try to get a medical certificate.”
On 16 March 2012 the migration agent wrote again to the Tribunal seeking a further extension. Some 40 pages of medical records were attached to this letter. On the same day the Tribunal replied that, having considered the further request and supporting material, it had determined not to grant a further extension of time. Any response had to be filed that day and the migration agent was advised that the Tribunal “may make a decision on the review without taking any further action to obtain [the appellants’] views on the information.”
The Tribunal did not, in the event, proceed to make a determination until 22 March 2012. The appellants had not forwarded their responses to the Tribunal prior to its decision being made.
Counsel for the appellants advised the Federal Magistrate that he had made enquiries about whether any procedural fairness issues arose in relation to the handling, by the Tribunal, of the appellants’ requests for extensions of time. The Federal Magistrate’s reasons referred to this matter:
“[Counsel’s] enquiries indicate that applicant faxed to his migration agents certain information at around 20.41 on 16 March 2012, which he evidently intended his agent would translate and forward to the Tribunal in response to the invitation to comment. It does not appear that anything reached the Tribunal prior to it making its decision on 22 March 2012. 16 March 2012 was a Friday, and it appears highly likely that the agent would not have seen that information until the following Monday.
There is no indication of any fraud on the part of the agent, and, indeed, in the circumstances explained by counsel, it would be difficult to conclude that there was even any negligence on the part of the agent. It is simply unfortunate that the applicant left until late on the day before sending a facsimile to his agent. In my view, the circumstances do not support an argument of any procedural unfairness on the part of the Tribunal in dealing with its invitation to comment and its request for more time to comment.”
THE GROUNDS OF APPEAL
At the hearing counsel for the appellants sought leave to abandon all grounds appearing in the original notice of appeal and to substitute three new grounds. Counsel for the Minister did not oppose the granting of leave. Leave was granted.
The amended grounds were related. They read:
“1.The Federal Magistrate erred in finding that the appellants’ s 424A response was not sent to Tribunal and/or in finding that there had not been procedural unfairness on the part of the Tribunal in dealing with the s 424A letter.
2.In the alternative to Ground 1, the Federal Magistrate failed to give adequate reasons in relation to its finding that the appellants’ s 424A response was not sent to the Tribunal and/or in concluding that there had not been procedural unfairness on the part of the Tribunal in dealing with the s 424 A letter.
3.The Federal Magistrate erred in considering whether the Tribunal’s jurisdiction was vitiated by fraud by a third party.”
Ground 1
The appellants submitted that the Federal Magistrate had erred in finding that the appellants’ migration agent had not forwarded the contents of the 16 March 2012 facsimile document to the Tribunal. Had that document been forwarded and had the Tribunal failed to consider it before making its decision, it was submitted, a denial of procedural fairness would have occurred.
The Federal Magistrate did make a finding that the Tribunal had not received any further correspondence from the appellants or their agent in the period between 16 and 22 March 2012. This finding was consistent with the statement in the Tribunal’s reasons that no response to the 2 March 2012 request had been received “as at the date of the Tribunal’s decision.”
Nonetheless, the appellants complained that the Federal Magistrate had not given proper weight to the possibility that the 16 March 2012 facsimile could have been on‑forwarded by the agent to the Tribunal in the course of the following week.
The appellants’ submissions confront a number of difficulties. The first is that counsel appearing for them before the Federal Magistrate (who was not the same counsel who appeared for them on this appeal) did not invite the Federal Magistrate to find that any response had, in fact, been forwarded to the Tribunal before it made its decision. Secondly, the appellants led no evidence to support any such contention. In particular, no evidence was led from the migration agent who was the person best placed to advise whether she had sent on the material she had received from the appellants. Thirdly, even if submissions had been sent to the Tribunal the following week and had not been considered before the Tribunal made its determination, it does not necessarily follow that a denial of procedural fairness would have occurred. The relevant procedures are to be found in s 424A of the Act. The Tribunal was, under this section, entitled to proceed to make a decision if a response to its request had not been received by 9 March 2012 or, having regard to the later communication, 16 March 2012.
No appellable error has been established.
Ground 2
As counsel for the appellants properly conceded an adverse ruling in relation to Ground 1 would render this second ground extremely hard to sustain.
The appellants submitted that the Federal Magistrate was required to assess the probability that the response contained in the facsimile which the appellants had sent to their agent on 16 March 2012 had been on‑forwarded by the agent to the Tribunal in the following week. This submission confronts the same difficulties which I have identified in dealing with the first ground. There also appears to be an implicit assumption that the Federal Magistrate was required, on his own initiative, to proceed to give consideration to a possibility that had not been suggested by counsel for the appellants and in respect of which no supporting evidence had been led. No such burden fell upon him.
This ground must fail.
Ground 3
Under this ground the appellants allege that the Federal Magistrate erred by failing to consider and conclude that the appellants’ migration agent had acted fraudulently by failing to submit to the Tribunal the response which they had prepared and sent to the agent on 16 March 2012.
Counsel who appeared for the appellants before the Federal Magistrate did not invite him to make a finding that the agent had acted fraudulently. Nor was any evidence called by the appellant to found such a serious allegation. It is, therefore, hardly surprising that the Federal Magistrate would have simply observed that there was nothing in the circumstances outlined to him, from the bar table, to support any such allegation.
Had the Federal Magistrate, in these circumstances, made a finding that the Tribunal’s decision was vitiated by fraud on the part of the agent, he may well have committed an appellable error. His reasons disclose no such error.
This ground must also fail.
DISPOSITION
The appeals must be dismissed with costs.
The Court wishes to record its gratitude for the assistance provided by counsel who appeared for the appellants on a pro bono basis.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 5 March 2013
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