SZFWZ v Minister for Immigration & Multicultural Affairs

The Tribunal's Decision 5 On 23 December 2004 the Tribunal invited the appellant to a hearing as it was unable to make a favourable decision on the evidence before it. No response was received to this letter and as the appellant did not provide any telephone number the Tribunal could not contact the appellant. 6 In consequence, the appellant did not attend the hearing on the scheduled date and the Tribunal proceeded to deal with his application for review, under s 426A of the Migration Act 1958 (Cth) ('the Act'), and to make a decision in his absence. The Tribunal noted that the appellant had not provided any documentary evidence as to his claims and considered that it would be reasonable to expect the appellant to provide some evidence of his claims. The Tribunal further found that the appellant's claims were lacking in basic details, such as where he was detained in a labour camp and how long he was held there. 7 The Tribunal noted that the appellant had not stated what problems he had, if any, after he was released from the camp. Ultimately the Tribunal found, on the absence of such evidence from the appellant, it was unable to establish the relevant facts. The Tribunal was not satisfied on the limited evidence that the appellant had a well-founded fear of persecution, within the meaning of the Convention and therefore it held that the appellant was not a person to whom Australia had protection obligations under the Convention, as amended by the protocol. The appellant therefore did not satisfy the criterion set out in subs 36(2) of the Act for a protection visa.

Proceedings in the Court Below 8 On 15 March 2005 the appellant filed an application under s 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. The application does not contain any grounds as such but reasserts and restates his claims that he is a genuine Falun Gong practitioner, that Falun Gong was outlawed by the Chinese government and that at the end of 2002 he was taken into a labour camp where he was physically and mentally abused. The Federal Magistrate found the 'grounds' asserted factual matters which did not address the issue of jurisdictional error. 9 At the hearing before the Federal Magistrate the appellant stated that he did not attend the hearing as he was new to Australia and was unable to find the premises of the Tribunal, a matter which he repeated at the hearing today. His Honour below found that the Tribunal was entitled to proceed under subs 426A(1) of the Act, that there was nothing to suggest the Tribunal was aware of anything that rendered doing so unfair or improper and that it did not fall into jurisdictional error in declining the grant of the visa. Consequently, the Federal Magistrate dismissed the application.

Appeal to this Court 10 Turning to the appeal to this Court, the notice of appeal sets out three unparticularised grounds of appeal: (1) The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it is purported to be made. (2) There was no evidence or other material to justify the making of the decision. (3) The decision was otherwise contrary to law. 11 It is not clear to me whether 'the decision', referred to in these three grounds, is the decision of the Tribunal or the judgment of the Federal Magistrate below. While the appeal is brought from a judgment of the Federal Magistrate, the reference to the decision in the grounds of appeal suggest to me that the decision complained of is that of the Tribunal. If that be so and the grounds do not identify any error in the Federal Magistrate's decision, then the appeal must, of necessity, fail. I shall therefore read the grounds of appeal as being referable to the judgment of the Federal Magistrate below. 12 Despite such a benevolent reading, I agree with the submission of the Minister that there are no legal, factual or discretionary errors made by the Federal Magistrate. For that reason the appeal must be dismissed. The Minister's submissions observe that the appellant was invited to the hearing before the Tribunal and did not appear. In those circumstances it is submitted that the Tribunal complied with its statutory obligations of procedural fairness under the Act. There was no obligation on the Tribunal to ensure the appellant took advantage of the invitation to appear before it. 13 The Minister submits that the Tribunal was entitled to proceed on the material before it and the Federal Magistrate was correct in finding that no denial of procedural fairness occurred. I agree with those submissions. The Minister's submissions also observe that the Tribunal's decision did not depend, in any way, on country information or any adverse information that was required to be brought to the appellant's attention. The Tribunal's reasons related solely to its being unable to reach a specified mental state because of an absence of detail and extrinsic explanation, which had been invited. 14 In those circumstances, as was observed by Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, it would be an inadequate and misleading statement to say that adverse information was the reason or part of the reason for the decision. Rather, it was the perceived inadequacy of the information in the sense of an absence of detail and explanation, which had been invited, which was the reason for the decision. No jurisdictional error is established in either the Tribunal's decision or in the judgment of his Honour below.

Orders 15 The orders of the Court will be: 1. The name of the first respondent be amended to the Minister for Immigration and Citizenship. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 2 March 2007 Solicitor for the Appellant: The appellant appeared in person

Solicitor for the First Respondent: Blake Dawson Waldron