SZCQR v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of a Federal Magistrate of 15 October 2004 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). On 14 December 2003 the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') not to grant the appellant a protection visa.

Background 2 The appellant claimed to be a citizen of the People's Republic of China ('China'). She arrived in Australia on 4 August 2002 and engaged a migration agent that same month ('the first migration agent'). Through him, she lodged an application for a protection visa on 3 September 2002. A delegate of the Minister refused to grant the visa on 8 October 2002 and on 11 November 2002 the appellant applied for review of the decision by the Tribunal. 3 The appellant is an unmarried accountant of Han ethnicity born in the Shan Dong Province of China. Her parents and siblings all live in China. She claimed that she and her family had suffered long-term persecution because they were categorised as rich farmers at the time of the Cultural Revolution. She claimed that during the time of the Cultural Revolution they moved from a big house to a small flat and her parents worked in a factory in a dirty and difficult work environment. The appellant claimed that because of the categorisation of her family she had experienced discrimination since childhood. She also claimed that if she returned to China she feared she and her family would continue to suffer persecution at the hands of the local government, the local public security bureau and other organisations. The appellant left China legally on her own passport on a business visa. 4 As mentioned earlier, the appellant filed her application for review by the Tribunal on 11 November 2002. Materials, subsequently filed with the Tribunal, contained claims that the delegate had not understood the situation in China and secondly, that since arriving in Australia, the appellant had become a pious follower of Falun Gong. 5 On 19 November 2003 the Tribunal wrote to the appellant advising her that it could not make a favourable decision solely on the material it had before it and invited her to appear at a hearing on 17 December 2003. What the letter said, insofar as it is relevant to this appeal, was summarised by the Federal Magistrate in the following passage from his Honour's judgment: This information [required by s 425A(4)] was contained in part of an important information message, which is set out in the middle of the front page of the standard [Tribunal] letter forwarded to applicants inviting them to attend a hearing. The details were set out within a box on the page which contained the date, time and place under a separate heading of Information About Your Hearing and two dot points. The first of those dot points read: "The Tribunal will only change this hearing date for good reason. If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing it can make a decision on your case without further notice." 6 In the appellant's submissions to this Court, she set out her version of events after she received this invitation. This was that on 5 December 2003 she went to the first migration agent's firm and he told her that the Tribunal hearing would be held on 17 December 2003. The appellant said that on 7 December 2003 her first migration agent called her to tell her to come and collect all her materials as he would no longer handle her case. The appellant engaged a second migration agent before the hearing. 7 In an affidavit filed in the Federal Magistrates Court the appellant explained her second migration agent had told her she did not have to attend the hearing and that he would attend for her and charged her an attendance fee of $1100, which she paid. When she realised she should have attended the hearing in person the appellant attended the Tribunal and spoke with the counter staff. Her affidavit evidence before the Federal Magistrate concerning this encounter was as follows: On 4 January 2004, I went to the Refugee Review Tribunal and spoke to counter-staff. In the lobby area [there] was also an accredited Mandarin interpreter waiting for her hearing. She assisted me with the Refugee Review Tribunal counter-staff. I asked for a copy of the hearing tapes and was told that there was none as I did not attend the hearing. The counter-staff asked me why I did not attend the hearing. I told them that my migration agent told me that he would attend on my behalf. They said that that was not possible, I must attend in person. I said that I had new information to give the Tribunal and it was important to me to have a hearing. The counter-staff told me to immediately ask for a hearing in writing. 8 In this Court the appellant made written submissions elaborating on this encounter. In her submissions of 16 December 2004 she explained that on 5 January 2004 she attended the Tribunal: Only then [after the staff had told her there was no tape because no one had attended the hearing] did I learn that my migration agent had failed to fulfil the contract to attend the hearing on my behalf. The [Tribunal] staff asked me why I had not attended the hearing. So through [the interpreter], I told them that my migration agent had told me that I do not speak English and do not understand the law, so I did not have to attend the hearing personally and that he would attend it on my behalf, asking me to pay him the attendance fee, and indicating that he would attend the hearing for me on 17 December. I was so worried then, therefore I pleaded to the counter staff (two men and one woman) in the hope that the [Tribunal] would give me another chance to attend a hearing. The staff told me to go home and put my request in writing and fax it to the [Tribunal], saying that they would make a decision after that. I remember at that time he did not tell me to write down also the reasons for not attending the hearing. No one told me that I should write down the reasons and I did not know it would be better to write them down. Therefore, I asked someone who speaks English to write a request to the [Tribunal] for me… If the [Tribunal] staff had told me to write down the reasons of my absence, I would have understood it would be in my interest and I certainly would have done so. 9 The appellant faxed a letter to the Tribunal on 5 January 2004 apologising for her non-appearance and requesting a new hearing. The letter contained no explanation for her non-attendance. It read (omitting formalities): I am so sorry that I did not attended (sic) hearing last time. Could you please arrange a new hearing date for me. That is very important for me. I will go to the hearing and provide more information to member of Tribunal. Thank you for your kindly help. 10 The Tribunal responded to the appellant's fax by letter on 5 January 2004 indicating that it had considered her letter and advising her it would hand down its decision on 14 January 2004. The appellant submitted that she never received a reply and that it was only on 14 January 2004 when she attended the Tribunal again, that they informed her of "their decision of rejection".