SZIGQ & Anor v Minister for Immigration & Citizenship & Anor

REASONS FOR JUDGMENT 1 The appellants are a husband and wife from Indonesia. They are ethnically Chinese. They arrived in Australia in August 2005. They applied for protection visas, claiming a well-founded fear of persecution within the Refugees Convention on the grounds of race and, possibly, membership of a particular social group. Their applications were refused on 26 September 2005 by the Minister's delegate. The appellants sought review by the Refugee Review Tribunal. The Tribunal informed the appellants that it was unable to make a decision in their favour on the material before it and invited them to come to a hearing and give oral evidence. The appellants did not return the Response to Hearing Invitation and failed to attend the Tribunal hearing on the scheduled day and time. On 6 December 2005 the Tribunal affirmed the decision not to grant protection visas. 2 In his findings, Mr Robert Wilson, who constituted the Refugee Review Tribunal, considered that there was nothing to support the claims other than the appellants' unsubstantiated assertions. He found that there were insufficient particulars in the written material to be satisfied that the appellants were involved in any of the events involving mistreatment of Chinese on which they relied; that they were subject to racial attacks from native Indonesians; or that they sought and were denied protection by the Indonesian authorities. He concluded that he was "unable to be satisfied, on the evidence before [him], that the [appellants had] a well-founded fear of persecution for a Convention reason". 3 The appellants appealed to the Federal Magistrates Court. Their application was dismissed on 27 November 2006. They appeal to this Court against that decision. There are two grounds of appeal:

1. There is no sufficient information before the Refugee Review Tribunal to justify the making of the decision.
2. The Tribunal based its findings on the information, or lack of information, contained in the application for a visa, and was required to explain why the information is relevant. The Tribunal failed to so act was a jurisdictional error. 4 These grounds cannot succeed. The facts of this case are quite close to the facts of three unanimous decisions of Full Courts of this Court. The members of each court were different. The decisions are NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ). In each case the court emphasised the proposition that the task of the Minister, through his delegate, and the Refugee Review Tribunal on appeal, pursuant to s 65 of the Migration Act 1958 (Cth), is to consider whether they are satisfied that the requirements for the grant of a visa have been satisfied. It will be difficult to achieve the requisite degree of satisfaction if the appellant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected. In NAVX at paragraph [5] the Full Court said this: "In assessing the adequacy of [the Tribunal's] reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application." 5 In the Federal Magistrates Court, the appellants gave evidence that they did not open the post box where the invitation was sent until after the hearing date. Emmett FM did not accept that the letter was late in arriving. However, the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries. See NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184, NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121, VNAA v Minister for Immigration and Multicultural and Indigenous Affairs(2004) 136 FCR 407; [2004] FCAFC 134, NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162, Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 and Others [2005] FCAFC 73, Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73, SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110 and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. In several of these cases the invitation was allegedly never received by the applicant. See VNAA v MIMIA, MIMIA v SZFHC and SZDPB v MIMIA. 6 I am bound by the Full Court decisions I have referred to. They require me to uphold the decision of the Federal Magistrates Court. It follows that the appeal must be dismissed and will be dismissed with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes