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[2007] FCA 543
Federal Court of Australia
2007-03-09
Bennett J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Jarrett FM where his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal affirming a decision of the Delegate of the first respondent to refuse to grant the appellant a protection visa (SZGWH v Minister for Immigration [2006] FMCA 1538). 2 There is no dispute as to the fact that, as set out in the Tribunal's reasons, the Tribunal wrote to the appellant on 10 May 2005 advising him that it had considered all the material before it in relation to his application but was unable to make a favourable decision on that information alone ('the letter'). In the letter, the Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 23 June 2005 at the time and place specified. The letter also advised the appellant that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received to the letter and it was not returned. The Tribunal recorded that it did not have a telephone number for the appellant. The appellant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. Pursuant to s 426A of the Migration Act 1958 (Cth)('the Act') the Tribunal made its decision without taking further action to enable the appellant to appear before it.
The Tribunal decision 3 The Tribunal set out the claims made by the appellant from the information available to it. The Tribunal accepted that the appellant is a citizen of the People's Republic of China. It referred to additional information that it would have wished to obtain from the appellant in relation to the subject matter of his application but said that, because of the lack of detail in the evidence before the Tribunal, it could not accept the appellant's claims. Accordingly, it could not accept that there was a real chance that the appellant would suffer harm amounting to persecution should he return to China. It followed that the Tribunal was not satisfied that the appellant has a well-founded fear of persecution for a Convention reason. 4 There is no suggestion that there has been any failure on the part of the Tribunal to comply with s 424A(1) of the Act. For the sake of completeness I note that, as the insufficiency of detail in the evidence was the basis for the lack of satisfaction, there was no failure to comply with s 424A(1) of the Act (SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195at [29]).
The Federal Magistrates Court 5 The appellant relied on four grounds of review in his application before Jarrett FM. Those grounds were, in summary: (1) The Tribunal failed to consider the fact that the appellant had difficulty in obtaining physical evidence; (2) The Delegate and the Tribunal did not consider the appellant's education level which created language difficulties and discrimination; (3) Further evidence would be provided by him to support his application; and (4) The Tribunal committed jurisdictional error. 6 Federal Magistrate Jarrett considered whether there had been a proper notification of hearing to the appellant by the Tribunal. His Honour was satisfied that the letter was despatched by the Tribunal to the appellant on 10 May 2005 and that the letter was sent to the address noted in the appellant's application for review as his mailing address where he wished correspondence about his application to be sent (at [4]). His Honour could see no reason why the deeming provisions in s 441C of the Act should not apply. He found that the Tribunal was entitled to proceed as it did and had committed no error in doing so (at [5]). 7 His Honour found no jurisdictional error on the part of the Tribunal in coming to its conclusion (at [9]). His Honour concluded that there was nothing in the decision of the Tribunal to indicate that the Tribunal ought to have considered in any particular way the appellant's educational level or language difficulties given that there was no oral hearing. His Honour also found nothing in the Tribunal's decision or in the material contained in the court book to support the assertion that there was discrimination by the Tribunal. As to the reference to "further evidence", in particular a warrant for arrest and bail bond or undertaking, his Honour concluded that those documents, if they did exist, were not relevant as they related only to the decision on the merits (at [10]). There is no suggestion that the appellant sought to put those documents before the Tribunal.
The appeal to this Court 8 The appellant appears in person assisted by an interpreter. He relies on the following grounds as set out in his notice of appeal: (1) 'The [Tribunal] failed to carry out it's decision. They made a unfavour decision before a hearing on the letter on 10 May 05. Please see file no. N05/50842 and in the decision the "reason". Only one page. it is careless.' (2) 'Due to my English problem. I lost the hearing in [the Tribunal] and I did not got a chance in the Court process. too.' (3) 'The lawer of DIMA did not write my name correct in a letter.' (4) 'I will be in danger if I go back to China.' 9 I questioned the appellant on the meaning of those grounds. He was unable to provide assistance or particulars other than to repeat that he did not receive the letter inviting him to attend a hearing. 10 To the extent that the first ground of appeal alleges that the Tribunal did not make a decision, it clearly did so. The appellant complained that the decision was only one page long but that is understandable considering the lack of information before the Tribunal. It was the lack of detail in the appellant's claims and his absence at the hearing which led to the Tribunal being unable to be satisfied as to his claims. That does not constitute jurisdictional error. The Tribunal complied with its obligations pursuant to ss 425 and 425A of the Act. The letter invited the appellant to attend a hearing giving notice of the day and time within the prescribed period outlined in reg 4.35D of the Migration Regulations 1994 (Cth). The letter contained a statement to the effect of s 426A. 11 The first ground of appeal also seems to suggest that the Tribunal had already made an unfavourable decision when it sent the letter inviting the appellant to attend the hearing. If so, the ground appears to reflect a misunderstanding about the meaning of the statement required to be provided to the appellant by s 426A. To the extent that the ground appears to imply that the Tribunal exhibited bias against the appellant, no evidence has been provided to support such a claim or to enable the ground of appeal to be made out. Allegations of bias carry a heavy onus. The allegation must be distinctly made and clearly proved. There is no evidence here that could amount to any suggestion of prejudgment by the Tribunal or anything else to support an allegation of bias. The first ground of appeal raises no basis for jurisdictional error. 12 The second ground of appeal is also somewhat unclear. To the extent that it refers to the fact that the appellant did not attend the hearing, for the reasons I have given, there was no jurisdictional error in this regard. The appellant was given an opportunity to attend the hearing and by reason of s 441C of the Act is deemed to have received the invitation seven working days after the letter was sent. The appellant did not attend the hearing at the date, time and place specified. In those circumstances, the Tribunal was entitled to make its decision on the review without taking any further action to allow or enable the appellant to appear before it (s 426A(1) of the Act). To the extent that the ground of appeal relates to his difficulties with English, there was no obligation on the part of the Tribunal to ensure that the hearing invitation was provided in a language which the appellant could understand. The invitation issued by the Tribunal complied with the requirements of s 425A of the Act. 13 To the extent that the ground of appeal suggests that the appellant was not given a "chance" in the Federal Magistrates Court, the appellant appeared before Jarrett FM and made submissions at the hearing. There is no evidence to suggest that he was not given every opportunity before his Honour. No particulars of such a complaint are provided. To the extent that the appellant suggested before me that he had wished to file additional material in the Federal Magistrates Court that went to the merits of his claim for refugee status, as his Honour pointed out, that would not have assisted the appellant in the application before his Honour (at [10]). His Honour was determining whether there had been jurisdictional error on the part of the Tribunal. 14 As to the third ground of appeal, there are no particulars either of a letter in which it is said that the appellant's name was written incorrectly or as to the consequence of any such error. I could not see in the appeal book where that may have occurred, nor could the appellant identify such a letter. In any event, I can see no consequence of any such error and none is suggested by the appellant. He does not suggest that any such error was responsible for his failure to receive the letter of 10 May 2005 notifying him of the hearing date. 15 The fourth ground of appeal seeks merits review. That is not within the jurisdiction of the Court (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]). 16 None of the grounds in the notice of appeal have been made out. The appellant has not demonstrated any reason why the decision of Jarrett FM should be disturbed.
Conclusion 17 The appeal should be dismissed. The appellant is to pay the first respondent's costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.
Associate: Dated: 16 April 2007 The Appellant appeared in person. Solicitor for the First Respondent: Clayton Utz
SZGWH
Minister for Immigration & Citizenship