SZHPX v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Federal Magistrate Scarlett delivered on 27 July 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') of 26 September 2005 handed down on 18 October 2005. The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of the People's Republic of China who claimed to have a well founded fear of persecution because he is a Falun Gong practitioner. 3 The Tribunal found that the appellant had provided insufficient information to it to enable it to make a decision in his favour and accordingly wrote to the appellant on 24 August 2005 at the address he had provided for service, inviting the appellant to attend a hearing of the Tribunal on 23 September 2005. On 6 September 2005 the Tribunal received two documents, both in Chinese without a translation and without explanation. The Tribunal wrote to the appellant at the same address on 8 September 2005 requesting that he contact it. No response was received. 4 The appellant did not attend the Tribunal hearing on 23 September 2005 and as the appellant did not contact the Tribunal about his failure to appear, it exercised its power under s 426A of the Migration Act 1958 (Cth) ('the Act') to make a decision without taking any further action to enable the appellant to appear. 5 The Tribunal considered information from external sources concerning the appellant's claims that the Chinese authorities target Falun Gong practitioners. The Tribunal was satisfied from such information that the Chinese Government has targeted Falun Gong members that persist in criticising the government. The Tribunal was also satisfied that the Chinese government does not target former Falun Gong practitioners. The Tribunal said that it was not able to determine the full extent of the appellant's association with Falun Gong or if he was still involved with the group. The Tribunal found that the appellant had not provided information that would satisfy it that at the time he left China he was involved in any activity that gave him the profile of a Falun Gong activist or that he was involved in any activity that would attract the adverse interest of the Chinese authorities. The Tribunal also said that it had no information to satisfy it as to the appellant's intended future involvement in Falun Gong, nor how the documents from the Chinese Court were relevant to the present circumstances. FEDERAL MAGISTRATE'S DECISION 6 Before Scarlett FM the appellant sought to have the decision of the Tribunal set aside on the grounds that he is a refugee and that he was 'a common Falun Gong practitioner when I was in China'. At the hearing, the appellant said that he did not attend the Tribunal hearing because no one told him to attend. 7 Scarlett FM, considering the Tribunal's decision in light of the claims made by the appellant, found that the Tribunal wrote to the appellant at the address he provided for service in compliance with its obligations under s 441A of the Act and that it was under no further obligation to take further steps to inform the appellant of the hearing. His Honour also found that the Tribunal was entitled to rely on the power contained in s 426A of the Act to determine the application for review without taking any further steps to enable the appellant to appear before it. Accordingly, his Honour found that there was no jurisdictional error on the part of the Tribunal. 8 As to the grounds for review before the Federal Magistrates Court, Scarlett FM said that the appellant appeared to be seeking judicial review. Scarlett FM then went on to say that he had read through in detail the decision of the Tribunal, as the appellant was not legally represented, but was unable to discern any jurisdictional error not mentioned by the appellant. Accordingly, the application was dismissed. APPEAL TO THE FEDERAL COURT 9 The notice of appeal to this Court contends that the Tribunal failed to comply with s 425(1) of the Act. This section provides: (1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. (2) The notice must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration-detention - by a method prescribed for the purposes of giving documents to such a person. (3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period. (4) The notice must contain a statement of the effect of section 426A. 10 The ground relied upon by the appellant was not a ground that was raised by the appellant before Scarlett FM in the application under s 39B of the Judiciary Act 1903 (Cth). 11 At the hearing of the appeal before me the appellant submitted that he did not receive the invitation to attend the hearing before the Tribunal. He denied that the address to which the invitation had been sent was his address. He also denied that the signature on his Application for Review form was his signature. He denied that the signatures appearing on his protection visa application were his signatures. 12 The appellant could not explain how the Court documents issued by the Chinese Court were sent to the Tribunal. He claimed that they must have been forwarded by an agent who was not an authorised migration agent. He claimed that it was unfair that the Tribunal proceeded to deal with his matter without him being present and without his knowledge.