SZHGL v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court, SZHGL v Minister for Immigration [2006] FMCA 776. The appellant is the husband of the applicant in an appeal which is listed before me for hearing tomorrow, SZHGK v Minister for Immigration [2006] FMCA 770. The appellant is a national of the Peoples Republic of China, having arrived in Australia on 1 April 2002. On 14 May 2002 he lodged an application for a protection visa. On 5 July 2002 a delegate of the Minister refused to grant a protection visa and he applied to the Refugee Review Tribunal for a review of that decision. 2 In his application for review the appellant nominated, as an authorised recipient of correspondence from the Tribunal, Orchard Sit of Feng Hing Pty Limited, which I assume is a migration agent. The Tribunal wrote to Orchard Sit at Feng Hing Pty Limited and to the appellant, inviting the appellant to a hearing on 7 July 2003. A response was sent indicating that the appellant wished to attend a hearing of the Tribunal on the nominated date. However, on 7 July 2003 the appellant did not appear at the hearing. He told the trial judge and repeated to me that the migration agent had not informed him of the hearing. 3 The Tribunal then proceeded to make its decision without having had the benefit of any evidence from the appellant because of his non-attendance. In reaching its decision to affirm the decision not to grant a protection visa, the Tribunal said that unfortunately the appellant's other claims were not supported by any evidence and were not even supported by evidence which he himself could give. In those circumstances it is not surprising that the appellant's claims to have been a member of the Shouters, a religious group in China, and to have been persecuted as a result of that membership were not accepted by the Tribunal. 4 Nor did the Tribunal accept that the appellant was involved in smuggling Bibles or that he had fled China to avoid harm. It found that it was not satisfied that the appellant had a well founded fear of persecution in China. It therefore refused his application for the protection visa. 5 Before me the appellant advanced, in the notice of appeal, essentially two substantial reasons as to why the trial judge should have allowed his application for review of the Tribunal's decision. First, he said that the requirements of ss 425 and 426 of the Migration Act 1958 (Cth) were in some way not properly considered by the Tribunal so that it made a jurisdictional error in proceeding to determine his application. 6 Secondly, he said that the Tribunal erred in failing to organise a joint hearing for his wife's and his own applications. 7 The fact that a person has applied to have their claims decided by a decision maker but has not been able personally to seek to persuade the decision maker can be very frustrating for the person concerned. The appellant can understandably feel a sense of grievance that he has not been able to put his case because the migration agent failed to inform him of the hearing before the Tribunal. Because the appellant does not appear to understand with any fluency or at all the English language, the letter inviting him to the hearing sent to his own address may not have been understood by him. 8 However, the scheme of the Act provides, in s 425(1), that the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425A requires the applicant to be given notice in writing of the day on which and the time and place at which he is scheduled to appear by a method specified in s 441A. In this case the Tribunal notified the appellant in writing by pre-paid post to an address for service provided to it, being that of Orchard Sit at Feng Hing Pty Limited in accordance with s 441A(4)(c)(ii). As a result, s 441C(4) provides that the appellant was taken to or deemed to have received the notice seven working days after the date on the invitation for hearing letter, which was 23 May 2003. 9 In fairness to the Tribunal, it was not to know that there was any difficulty with the appellant receiving notice of the hearing because it received a response to the invitation for hearing indicating that he wished to appear on 7 July 2003. The Tribunal was therefore faced with a position in which it had sent a letter and received a reply that the appellant wished to attend the hearing, so when he did not appear the Tribunal was in a position where it was entitled under s 426A(1) to make a decision on the review without taking any further action to allow or enable him to appear before it. 10 I am not able to detect any basis on which it could be suggested that the Tribunal fell into a jurisdictional error in the circumstances arising out of it proceeding to decide the application once the appellant did not appear at the hearing that had been scheduled. His Honour said that it was difficult not to infer that the appellant also received an actual notice of his invitation and was aware of his wife's earlier hearing which had occurred on 20 June 2003, since she received a letter in exactly the same terms on the same date as that addressed to him inviting him to a hearing. 11 In an affidavit which the appellant swore in the Federal Magistrates Court he said that the migration agent did not allow him to attend the hearing before the Tribunal. His Honour found that it was difficult not to infer that his failure to attend was a deliberate decision on his part which was arrived at upon advice from his agent but did not consider it necessary to explore his evidence about that by inviting him to give evidence in the witness box. I am not so sure that one should draw any such adverse inference. The appellant's evidence was not sought to be tested in cross-examination and ought to be accepted. However, the application of the Act is of no assistance to the appellant's case. 12 The scheme of the operation of ss 425, 425A, 441A and 441C was explained in the terms which I have set out above consistently by two full courts in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 136 FCR 407 at 413-414 [14]-[15] per Sundberg and Hely JJ, with whom Gyles J agreed at 417 [30] and in the majority decision in Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 at [135] per Allsop J and at [231] per Graham J. In those circumstances I am unable to see any jurisdictional error in the Tribunal's proceeding to determine the appellant's claim after he failed to attend the hearing. 13 A subsidiary argument was made that once the appellant had not appeared the Tribunal ought to have exercised its discretion under s 426A(2) to re-schedule the appellant's appearance before it. I am not able to see any basis upon which the Tribunal could have been taken to have made an error in failing to re-schedule the appearance in the circumstances with which it was confronted. 14 The second substantive argument was that the Tribunal should have arranged a joint hearing with appellant's wife's application. There was, however, no request for a joint hearing and separate applications had been filed by the appellant and his wife with the Tribunal. In those circumstances it is difficult to see why the Tribunal made any error in not joining the two proceedings together. There was no requirement under the Act for the two matters to be heard together and I am not able to ascertain any basis upon which it could be said that the Tribunal erred in failing to hear the two together in those circumstances.