SZGZJ v Minister for Immigration and Citizenship

PROCEEDINGS BEFORE THE TRIBUNAL 4 Upon lodging the application for review to the Tribunal, the applicant provided a statement in support essentially reiterating her claims and set out reasons for her disagreement with the delegate's decision. 5 According to the Tribunal's Decision Record, the following occurred. 6 On 23 March 2005, the Tribunal wrote to the applicant advising her that the Tribunal had received her application for review. The Tribunal's letter was sent to the applicant's mailing address as provided by the applicant in the review application. The Tribunal informed the applicant that she should immediately advise the Tribunal of any change of address and telephone number and "If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice". The Tribunal's letter also explained that the applicant might be invited to a hearing and that a "hearing is your opportunity to give the Tribunal evidence to support your application". There was no evidence before the Tribunal that the applicant did not receive this letter. 7 On 11 May 2005 the Tribunal wrote to the applicant advising her that it had considered all of the material before it relating to her application, but was unable to make a decision in her favour on the information before it. The Tribunal invited the applicant to attend a hearing scheduled for 23 June 2005, so that she could give oral evidence and present arguments at a hearing. This I infer was pursuant to its obligations under s 425 and s 425A of the Act. The applicant was also advised that if she did not attend the hearing and a postponement was not granted, the Tribunal could make a decision on her case without any further notice. The Tribunal's letter was sent by registered post to the mailing address provided by the applicant in the review application. The Tribunal noted that there was no evidence before the Tribunal that the applicant did not receive this letter. Furthermore, no response to the hearing invitation was received by the Tribunal. The applicant did not attend the hearing listed on 23 June 2005 and the Tribunal stated it in its decision that it had received no explanation as to her absence.

THE DECISION OF THE TRIBUNAL 8 The Tribunal proceeded to make a decision pursuant to s 426A of the Migration Act 1958 (Cth) ('the Act') without taking further action to allow or enable the applicant to appear before it. 9 The Tribunal found that the applicant had made a series of vague and general claims, but had not provided any corroborative evidence supportive of these. It was satisfied that the applicant had been given proper opportunity to support her application, at both the primary level and the review stage. It noted that the applicant did not attend a hearing, and that it did not have any explanation for her lack of attendance. The Tribunal further found that the applicant had been put on notice that the Tribunal could not make a favourable decision on the basis of the available information. The Tribunal was satisfied that the applicant had notice of the hearing, but found that the applicant was not genuine about pursuing her case. 10 Without further details, clarifications, corroborative evidence and without having had the opportunity to explore the claims with the applicant at a hearing, the Tribunal found that it could not be satisfied that the applicant and/or her husband were Falun Gong practitioners or that they were involved in any such activities. It followed that the Tribunal was not satisfied that the applicant's husband did not "obey rules and he was fired and jailed", nor was the Tribunal satisfied that the applicant was forced to report to the police station. The Tribunal was not satisfied that the applicant had suffered any of the harm that she claimed had occurred. The Tribunal was not satisfied the applicant had a well-founded fear of persecution for a Convention related reason and affirmed the delegate's decision not to grant the protection visa.

PROCEEDINGS BEFORE THE FEDERAL MAGISTRATE 11 The applicant sought judicial review of the Tribunal's decision in the Federal Magistrates Court by filing an application on 18 August 2005. Her application for review stated as follows: 1. I am a membership of a particular group-Falun Gong. I experienced a terrible ordeal in my original country as a genuine Falun Gong practitioner. 2. I fear persecution because I am a membership of Falun Gong, and I also believe my fear of the persecution is well-founded. 12 Before his Honour, the applicant relied on an amended application filed on 22 November 2005, which did not contain any grounds of review, and only repeated brief information about the applicant, together with her claims. 13 At the hearing before the Federal Magistrate, the applicant, although she had not complied with an order to file written submissions, proceeded to make oral submissions in support of her application. She stated that she had not received a letter from the Tribunal. The Federal Magistrate noted that this was an apparent reference to the Tribunal's letter of 11 May 2005 which indicated that it had considered all of the material in her application, but that it was unable to make a decision in the applicant's favour on this information alone. The letter invited the application to appear on 23 June 2005 at a Tribunal hearing. 14 The letter of 11 May 2005 had been sent to a PO Box address. This was in accordance with the applicant's address details on her Tribunal application form. The Federal Magistrate queried the applicant about this PO Box address. She advised the Court that this mailing address was the PO Box of an agent who had been acting on her behalf, although this fact had not been disclosed by her on her application form. 15 The Federal Magistrate found that the Tribunal had fulfilled its obligation under s 425 and s 425A of the Act. The Tribunal made its decision, as it was entitled to do, pursuant to s 426A of the Act, as the applicant did not attend the hearing in response to the invitation. The decision was based on the Tribunal's findings that there was insufficient evidence to satisfy the applicant's claims. 16 The legislative regime, as his Honour found, required the Tribunal to have a positive state of satisfaction as to whether protection obligations were owed, absent which a refusal of the application was mandatory. In this case, the Tribunal could not reach that positive state of satisfaction in relation to the applicant's claims and as such, the Tribunal's decision to affirm the decision on review, was inevitable. 17 His Honour found that although the amended application filed did not specifically identify any grounds of review in respect to the Tribunal's decision, the applicant was inviting the Court to conduct a merits review of the Tribunal decision. The Federal Magistrate held that a merits review of a Tribunal decision could not be conducted: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259. 18 His Honour noted that the applicant appeared to have relied on an unidentified agent who, on the applicant's own admission was of little assistance and was unreliable. The Federal Magistrate independently reviewed both the Court Book and the Tribunal decision, to consider whether any argument based on those documents could have been made out and held as follows: 'There are no valid grounds of review contained in the original or amended application, nor is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the application should be dismissed.'

NOTICE OF APPEAL 19 The grounds in the draft notice of appeal annexed to the affidavit assert there was no material to justify the making of the decision and that the Tribunal failed to consider the current situation in China. The affidavit addressing the issue of an extension of time states that the applicant had assumed that the time to lodge an appeal commenced when the applicant received the order from the Federal Magistrates Court. 20 At the hearing of the appeal before me the applicant declined to make oral submissions.

REASONS 21 The Tribunal's decision in the present case is a privative clause decision as defined by s 474(2) of the Act. Section 474 therefore validly operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. 22 I note that the Court issued directions on 29 June 2007 ordering the appellant to file and serve a draft Notice of Appeal setting out particularised grounds of appeal by 13 July 2007. The applicant has not done so. 23 By Order 52 rule 15(1) of the Federal Court Rules, the time allowed for filing a Notice of Appeal is within 21 days after the date the judgment was pronounced. Taking into account Order 3 rule 2(2), the Notice of Appeal was required to have been filed within 21 days of 20 April 2007. The application for an extension of time to file a Notice of Appeal was filed on 28 May 2007. 24 By Order 52 rule 15(2), the time limit may be extended 'for special reasons'. The expression 'special reasons' is 'an expression which has been said to describe a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served': Joss v Scott (1986) 12 FCR 187 at 195. 25 Before granting the extension sought, the Court must be satisfied that the reasons put forward in the applicant's affidavit in support of the applicant constitute sufficient grounds for a departure from the general rule. 26 The appellant's explanation for the delay is that she believed the 21 day period within which the application required to be filed commenced on the day that she received the orders from the Federal Magistrates Court. I take "the orders" to mean the judgment of the Federal Magistrate delivered on 20 April 2007 and which would have been sent to her by registered post. She told me that she could not remember when she received her copy of the judgment. 27 The Federal Magistrate handed down written reasons for decision, dismissing the applicant's application for judicial review, on 20 April 2007. A misunderstanding on the part of the applicant as to the effect of rule 15(1) might have warranted this Court exercising its discretion under rule 15(2) to grant an extension of time. The delay was very short. 28 However an extension should not be granted where the proposed appeal has insufficient prospects of success: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]. I have concluded that such is the case here. 29 The notice of appeal contains three grounds, none of which allege jurisdictional error on the part of the Federal Magistrate. The grounds refer to purported errors of the Tribunal. An appeal to this Court lies against the judgment of the Federal Magistrate and not from the Tribunal's decision. An appeal to the Full Court in a refugee matter should not be taken as an occasion to reconsider the Tribunal's reasons as distinct from considering the primary judge's reasons: Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10]. 30 In any event I cannot discern any jurisdictional error by the Federal Magistrate. There being no jurisdictional error manifest, the decision is a privative clause decision for the purpose of s 474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

CONCLUSION 31 The application for an extension of time to file and serve a notice of appeal should be dismissed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Solicitors for the First Respondent: DLA Phillips Fox

Date of Hearing: 10 August 2007

Date of Judgment: 10 August 2007