SZHUT v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate. The Magistrate made an order dismissing an application by the appellant under s 476 of the Migration Act 1958 (Cth) ('the Act') and r 44.05 of the Federal Magistrates Court Rules 2001. 2 The appellant is a citizen of the People's Republic of China, and he arrived in Australia on 20 January 2005. On 3 March 2005, he lodged an application for a protection (Class XA) visa. In his application, the appellant claimed that his mother was a Falon Gong practitioner and that she was persecuted by the Chinese authorities. The appellant claimed that he sought to appeal or protest against the persecution of his mother, and that as a result, he, in turn, was persecuted by the Chinese authorities. The appellant claimed that his mother was told not to practise Falon Gong, but that she continued to do so. She was forced by the authorities to undertake corrective education. The appellant claimed that his approach to the Chinese authorities asking that the mistreatment of his mother cease has caused him a good deal of trouble. His business was affected when the local government authorities started investigating his business with respect to alleged tax evasion. The registration of his business was suspended. The appellant claimed that the authorities will use the alleged tax evasion as an excuse to prosecute him and that he left China because he believed that he would be subject to further persecution. 3 On 11 June 2005, the appellant's application for a protection visa was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs. The appellant applied to the Refugee Review Tribunal for a review of the delegate's decision. In his application for review, the appellant stated that his residential address was 29 East Drive, Bexley North, New South Wales. He stated that his address for correspondence was 18 Westbourne Street, Bexley, New South Wales. That address was apparently the address of a friend. On 24 August 2005, the Tribunal sent a letter to the appellant wherein it advised him that it was unable to make a decision in his favour on the basis of the information it had. It invited him to attend a hearing of the Tribunal to give oral evidence and present arguments in support of his claim. It advised him that if he did not appear and the Tribunal did not postpone the hearing, then it could make a decision without further notice. The proposed date for the hearing was 20 October 2005. The letter from the Tribunal was sent to 18 Westbourne Street, Bexley, New South Wales. 4 The appellant did not attend the proposed hearing on 20 October 2005, and, by letter of that date addressed to the appellant at 18 Westbourne Street, Bexley, New South Wales, he was advised by the Tribunal that it had made its decision and that it would hand down its decision on 8 November 2005. On that date, the Tribunal affirmed the decision of the delegate. In the course of its reasons, the Tribunal member said: 'He has provided very little detail about the difficulties he faced which led to his departure from China and has provided no documentary evidence in support of his claims (for example, evidence that his business licence was suspended or that he had lodged complaints or appeals in relation to his mother's treatment by the authorities). He has not stated in what period the events complained of occurred. In short, he has made a number of assertions unsupported by detail or documentary evidence. Without more, I am unable to establish the relevant facts.' 5 The Tribunal was not satisfied on the evidence before it that the appellant had a well-founded fear of persecution within the meaning of the Convention. 6 The appellant lodged an application with the Federal Magistrates Court of Australia under s 476 of the Act. He challenged the Tribunal's decision on two grounds. First, he submitted that the Tribunal had not given to him particulars of information that it considered would be the reason or a part of the reason for affirming the decision that was under review within the provisions of s 424A(1) of the Act. The Magistrate rejected that submission on the ground that the reason for the Tribunal's decision was the inadequacy of the material provided to the Tribunal, and inadequacy of a claim is not 'information' for the purposes of s 424A of the Act. The Magistrate said that inadequacy of information is no more than a subjective appraisal by the Tribunal about the material provided and a subjective appraisal of the material does not constitute information for the purpose of s 424A. The Magistrate referred to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 and SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195. 7 Secondly, the appellant submitted that the Tribunal failed to invite him to appear before it, and, therefore, proceeded in breach of s 425(1) of the Act. As I have said, the Tribunal forwarded the letter dated 24 August 2005 containing the invitation to a hearing to the appellant's address for service. However, the Magistrate appears to have accepted the appellant's evidence to the effect that he had used a friend's address as his address for service. The friend had moved from that address and did not tell the appellant or the Tribunal. By the time the appellant found out about this and went to collect his mail, it was too late. The Magistrate held that the Tribunal had complied with s 441A of the Act and that there could be no jurisdictional error based merely on the appellant's failure to receive a notice. He referred to NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184. 8 The Magistrate's conclusion was that the decision of the Tribunal was a privative clause decision within s 474 of the Act and that there was no jurisdictional error. He therefore dismissed the application. 9 In essence, other than an impermissible challenge to the merits of the decision made by the delegate and then the Tribunal, the appellant submitted on appeal that the Magistrate had erred in rejecting the two grounds upon which he challenged the Tribunal's decision. 10 As to the first ground of challenge, I see no error in the reasoning of the Magistrate. What the Tribunal member emphasised was the lack of information. On the authorities, that is not information within the terms of s 424A(1)(a): VAF v Minister for Immigration and Multicultural and Indigenous Affairs (supra) per Finn and Stone JJ at [24]; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238. It is no more than the Tribunal's subjective appraisal of the material before it. 11 As to the second ground of challenge, that also must fail. The evidence establishes that the Tribunal complied with the service provisions in s 441A(4) of the Act and therefore the provisions of ss 425 and 425A. The fact that the arrangement between the appellant and his friend broke down and the appellant did not receive the letter from the Tribunal dated 24 August 2004 until it was too late is of no consequence in terms of the Tribunal's obligation and the question whether there had been a failure to comply with the Act which vitiates the decision: NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (supra) per Tamberlin, Sackville and Hely JJ at [16]. The Tribunal complied with the provisions of the Act and was entitled to proceed to make a decision on the review: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407. 12 Both grounds upon which the Magistrate's decision was challenged must fail. There is no reason to think that the decision of the Tribunal was otherwise infected by jurisdictional error. In those circumstances, the appeal must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.