SZCQR v Minister for Immigration and Multicultural and Indigenous Affairs

Tribunal decision 11 In relation to the claims of discrimination as a result of the Cultural Revolution the Tribunal found that the impact of the Cultural Revolution would have dissipated during the appellant's childhood. The appellant did not provide any discrete evidence of discrimination she had personally suffered. The Tribunal believed it highly unlikely that she would suffer persecution on the basis of her family background if she were returned to China in the foreseeable future. 12 In relation to the claims relating to her Falun Gong membership, the Tribunal found that the appellant's association with Falun Gong was not motivated by a genuine belief in Falun Gong and she would not follow the practice on return to China. The Tribunal found that the appellant did not have a well-founded fear of persecution in that respect.

Reasons for judgment of the Federal Magistrate 13 The application before the Federal Magistrate raised two grounds. The first was that procedural fairness required the Tribunal to contact her or her agent before making its decision to ascertain if there was any substantive reason for her non-attendance. She argued that in all the circumstances there had been a breach of the requirements of procedural fairness constituting jurisdictional error. The second ground was that the invitation to the hearing sent by the Tribunal did not contain a statement of the effect of s 426A, contrary to the requirement in s 425A. 14 The Federal Magistrate discussed a number of cases concerning procedural fairness and concluded that it had been open to the Tribunal to proceed to decide the matter in exercise of the discretion conferred by s 426A(1) of the Act. His Honour said (at [50]): I am not convinced of the argument that this action was wrong because the migration agent gave the applicant the wrong advice and I believe this is supported by the authority in NADK v Minister for Immigration & Multicultural Affairs and B41 of 2003. 15 As to the second ground, the appellant relied on differences in the wording of the invitation letter (set out above at [5]) from the language of s 426A and submitted (set out at [34] of the Federal Magistrate's reasons for judgment): a) The section said in effect that the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it. The statement said that the Tribunal can make its decision without further notice. b) Further notice is not defined. Theoretically, there are steps other than further notice, which a Tribunal could take to allow or enable an applicant to appear before it prior to making a decision. c) For example, if, without notice, an applicant requests the opportunity to appear before the Tribunal before it makes a decision, the section would entitle the Tribunal to make its decision without taking "action to enable the applicant to appear before it". This possibility was not communicated to the applicant. In the event, this possibility had in fact occurred in the facts of this case. d) The section said that it does not prevent the Tribunal from rescheduling the applicant's appearance or from delaying its decision in order to enable the applicant's appearance before it as rescheduled. e) The statement simply made reference to the theoretical possibility - "and the Tribunal does not postpone the hearing". The section foreshadowed that the applicant would be advised explicitly as to the possibility of a rescheduling of the appearance, or a delaying of the decision in order to enable the applicant's appearance. The applicant was denied this explicit communication. 16 The Federal Magistrate concluded "the clear intention conveyed by the letter has the same effect as the more formal provisions contained in the Act"and he was satisfied that the ordinary person reading the letter would have been left with the same understanding as was required by the provisions of the Act.

The appeal and its disposition 17 The appellant represented herself at the hearing of the appeal on 3 December 2004 though she had been represented by counsel before the Federal Magistrate. Having heard the parties and commenced to consider the issues, I concluded it was desirable to facilitate representation of the appellant under O 80 r 4 of the Federal Court Rules. That occurred and pro bono counsel prepared submissions and an amended notice of appeal which were filed on 18 April 2005. As I understand the position of the Minister, no objection is taken to the matter being conducted by reference to the amended notice of appeal. The grounds in the amended notice of appeal are as follows:

1. In clause 50 of the decision record, His Honour erred in finding that the Tribunal proceeding pursuant to discretion conferred by s 426A(1) of the Act was not wrong because the migration agent gave the applicant the wrong advice when the Tribunal did not seek an explanation of the facsimile dated 5 January 2004 from the Appellant and/or postpone handing-down to re-schedule a hearing denied the Appellant procedural fairness. In NALQ v Minister for Immigration [2003] FMCA 455 (9 October 2003) Driver FM at [20] referring to Mansfield J said: With respect, I agree with His Honour's analysis concerning [s 426A(1)(b). In my view, the answer to the question of whether the [Tribunal] was entitled to proceed under s 426A(1)(b)] of the Act is answered by the answer to the question of whether the decision of the [Tribunal] to refuse an adjournment was procedurally fair. If that decision was procedurally unfair the [Tribunal] should not have proceeded in the absence of the applicant in reliance upon s 426A(1)(b). On the other hand, if there was no procedural unfairness, the [Tribunal] was entitled to proceed in the absence of the applicant.
2. In Clause 52 of the decision record, His Honour stated that "a detailed examination and comparison of the letter wording compared with the provisions within the Act clearly demonstrated that there is a difference". His Honour erred in finding that the Tribunal's letter conveyed the same intention as the more formal provisions of the Act. These are the differences between the statement by the Tribunal, and the effect of the s426A(1): - 18 The appellant then repeated the differences relied on before the Federal Magistrate (set out at [15] above). The amended notice of appeal then continued as follows: Section 426A provided that the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it and that the section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
3. His Honour erred in failing to find that the Tribunal had failed to accord the appellant procedural fairness, in that the Tribunal: (a) Failed to consider the information given verbally by the appellant when she attended the Tribunal Registry on 4 January 2004. (b) Failed to consider the information given by the appellant in her letter sent to the Tribunal on 5 January 2004.
4. Further his Honour erred in failing to find that the Tribunal had not undertaken its duty to review the decision under Part 7 of the Act because it did not consider the information referred to in paragraph 3 (a) and (b). 19 The last two grounds concern events which the appellant deposed to in an affidavit sworn 14 July 2004 and filed the following day in the Federal Magistrates Court. This is relevantly set out (at [7]) above. 20 The difficulty which arises in this appeal is that the Federal Magistrate made no findings of fact about these matters, at least as to detail concerning the discussions with the counter staff. I was told by counsel appearing for the Minister, that at the hearing before the Federal Magistrate he was instructed to cross-examine the appellant about this affidavit. This could not occur because there was no interpreter present, as the appellant was represented. I am not aware of what occurred before the Federal Magistrate, beyond what I was told by counsel. Possibly counsel for the Minister should have sought an adjournment. Possibly counsel for the appellant should have insisted that the appellant's evidence be admitted and findings made notwithstanding she was not cross-examined. Again, from comments of counsel for the Minister in this appeal, it appears a request may have been made that she be made available for cross-examination. 21 However, what occurred below does not alter the fact that the Federal Magistrate made no findings of fact about discussions between the appellant and Tribunal counter staff after the Tribunal hearing. No complaint is made, in the grounds of appeal, about any failure of the Federal Magistrate to make findings of fact. In those circumstances, I apprehend that I should approach the matter on the facts as found by the Federal Magistrate and not speculate about what findings might have been made, if the evidence of the appellant had been tested in cross-examination. 22 On this approach, ground 3(a) and ground 4 to the extent that it relies on that ground, cannot succeed as they are not supported by the facts found below. Ground 3(b) raises a different issue. In the letter of 5 January 2004 (see [9] above) the appellant did not provide an explanation of her failure to attend the earlier hearing. She did indicate, however, that a hearing was important for her and that she would provide the Tribunal with more information. It is clear from the Tribunal's response of 5 January 2004, that the appellant's faxed letter was considered. There is nothing in that responsive letter from the Tribunal from which it could be inferred that the Tribunal failed to have regard to the limited information contained in the faxed letter from the appellant. Accordingly, ground 3(b) and ground 4 to the extent that it relies on that ground, are not made out. 23 I turn to consider ground 1 which challenges the conclusion of the Federal Magistrate concerning the Tribunal's exercise of the discretionary power conferred by s 426A(1). Briefly stated, the Federal Magistrate concluded that it had been open to the Tribunal to proceed as it did even though the appellant may have received wrong advice from her migration agent. The answer to this ground is found in the comparatively recent judgment of a Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73. In that case, the visa applicant rang the Tribunal the day before the scheduled hearing and told a Tribunal officer he would not be attending the hearing because he needed to attend the funeral of a cousin who had recently died. The officer asked him to provide further information. He did not do so. The Tribunal then made a decision exercising the discretionary power conferred by s 426A(1). In reaching its conclusion, adverse to the visa applicant, the Tribunal indicated that on the available evidence it could not determine the facts with confidence and it identified several matters it would have raised with the visa applicant had he attended the hearing. The Tribunal also noted that the applicant had not attended the hearing and had not provided evidence for his non-attendance as requested. 24 The primary judge in that matter concluded the Tribunal had fallen into jurisdictional error. The Full Court disagreed and the following passages from its reasons for judgment explain why (at [12] and following): The primary judge referred to s 426A in the context of saying that an applicant's non‑attendance at a hearing does not affect the Tribunal's obligation to review the decision but did not explain how reliance on s 426A would amount to a dereliction of duty on the Tribunal's part. The primary judge's decision in this respect is inconsistent with the Full Court's decision in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16], where it was said: "Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence." It could not be said that the respondent's failure to attend the hearing was through no fault of his own. He was aware of the hearing date, simply announced that he would not be attending (see [2]), and failed to comply with what, in the circumstances, was a perfectly reasonable request to provide substantiation of his reason for not attending. The primary judge seems to have doubted whether the Tribunal's officer had power to request substantiation. His Honour said the officer "appears to have been unconcerned by the question whether the Tribunal had any power at all to request the information it requested". Although his decision did not turn on this issue, we note that in NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [35] a Full Court said: "The Tribunal, having made the reasonable requirement that some evidence be produced to support the request for an adjournment, did not render the s 425 invitation illusory by proceeding to the hearing on the appointed day in the absence of the appellant." The respondent submitted that the Tribunal was obliged to reschedule the hearing because it gave him the opportunity to provide details of his non‑attendances by 12 June, which was a day after the hearing date. It was said that the respondent would have assumed from this that the hearing would be rescheduled, if for nothing else but to consider his reasons for non‑attendance. We do not accept this submission. Had the respondent complied with the request for information by 12 June, the Tribunal would doubtless have communicated with him as to whether there was to be a new date. However he did not provide the requested information by 12 June, or at all, and on 19 June the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable him to appear before it. In our view the primary judge erred in concluding that in the absence of an adverse finding as to the reasons for non‑attendance, the Tribunal was obliged to attempt to schedule another hearing, or that, as his Honour put it, it was a dereliction of its duty not so to attempt. 25 In the light of this discussion about the nature of the discretionary power conferred by s 426A, it cannot be said, in my opinion, that the Federal Magistrate erred in rejecting the contention of the appellant that the Tribunal's discretion had miscarried such as to constitute jurisdictional error. In the face of the limited information provided by the appellant in the faxed letter of 5 January 2004, it was open to the Tribunal to proceed as it did. 26 Ground 2 concerns the invitation letter sent by the Tribunal. It is convenient to set out, the relevant statutory provisions. Section 425A(4) provides: The notice must contain a statement of the effect of section 426A. Section 426A provides: (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled. 27 The differences between the notice and s 426A, relied on before the Federal Magistrate and in this appeal (see [15] and [18]), are said to demonstrate that the requirement in s 425A(4) was not met. In my opinion, these identified differences (and I would be reluctant to characterise them as differences in any event) do not establish that the notice fails to contain a statement of the effect of s 426A. There would be a variety of ways in which the effect of the section could be described. However, the description in the notice encapsulates the effect of the section. Plainly, the requirement in s 425A(4) is to ensure that the notice alerts an applicant to the consequences of not appearing in the face of an invitation to appear, the material consequence being that the Tribunal can make a decision without taking any further action which would result in the applicant appearing before the Tribunal. In my opinion the notice conveys this. The Federal Magistrate did not err in reaching a similar conclusion. 28 The appeal should be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 3 June 2005 The Appellant appeared in person.

Counsel for the Appellant post-hearing: N Poynder (Pro Bono)

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 3 December 2004

Date of final submissions: 18 April 2005

Date of Judgment: 3 June 2005