SZKFB v Minister for Immigration & Citizenship

THE DECISION OF THE TRIBUNAL 5 The Tribunal wrote to the applicant on 23 October 2006, advising the applicant that it had considered the material before it in relation to his application, but was unable to make a decision in favour of the applicant on this information alone. The Tribunal, pursuant to s 425 of the Act invited the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review at a hearing on 13 December 2006, and advised the applicant that, if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal did not receive a response. The Tribunal confirmed that the invitation was sent to the most recent recently advised address. Furthermore, the applicant had not provided a telephone contact number, and did not have an adviser or authorised recipient. The applicant did not appear before the Tribunal on the day and at the time and place at which the hearing was listed. 6 The Tribunal proceeded to make its decision on the review, without taking any further action to enable the applicant to appear before it pursuant to s 426A of the Act. The Tribunal determined that the claims before it were lacking in essential detail. It found that while the applicant referred to a lack of respect for human rights by the Chinese government and a fear that he would be targeted by the police if he claimed reasonable compensation, there was no detail in his application in relation to anything that had happened to him since July 2004. The Tribunal noted that although the applicant referred to protests in July 2004, he did not claim that police continued to investigate or pursue him for his part in the protests during the period from 2004 until he left China. The Tribunal also found that there was insufficient detail concerning the applicant's claimed fear for reasons of race, religion, nationality, membership of a particular social group or political opinion. 7 As the applicant was invited to appear before the Tribunal but failed to do so, the Tribunal found that it was unable to question him further, and that the applicant's claims were left unclarified. The Tribunal was unable to be satisfied that the applicant had suffered persecution in the past or that he had a well-founded fear of persecution if he were to return to the PRC in the reasonably foreseeable future. The Tribunal affirmed the decision not to grant the applicant a protection visa.

PROCEEDINGS BEFORE THE FEDERAL MAGISTRATE 8 The application before the Federal Magistrate was filed on 14 February 2007, and an order was sought that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s 476 of the Act, in respect of a decision of the Tribunal. 9 The application was returnable before the Federal Magistrate on 6 March 2007. His Honour explained the nature of the proceedings to the applicant, who was also given an information sheet. After receiving a bundle of relevant documents and a referral for free legal advice, the applicant was given an opportunity to file an amended application and evidence. The Federal Magistrate warned the applicant that his application might be dismissed if the Court was not satisfied that the applicant had raised an arguable case for the relief claimed. 10 On 8 March 2007, the applicant was sent a referral for advice. The applicant did not file an amended application. The Federal Magistrate considered the two grounds in his application below: '1. The RRT decision was affected by jurisdictional error in that the RRT acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning. 2. The RRT failed to invite the applicant to comment on relevant information, as required by the S 424A of the Migration Act. Particulars: The Tribunal questioned the applicant has not claimed that the police continued to investigate or pursue him for his part in the protests from 2004 until he left China. The information is relevant to the application and the Tribunal failed to put this information before the applicant and invite him to comment on it.'

THE DECISION OF THE FEDERAL MAGISTRATE 11 The Federal Magistrate could not discern any arguable basis upon which the Tribunal's decision was affected by any legal error, and noted that the applicant had not sought to explain his absence from the hearing, in any document filed in the Court or statement to the Court. The Federal Magistrate found no arguable jurisdictional error affecting the decision of the Tribunal. 12 The Federal Magistrate found that there was no substance to the applicant's assertion that the Tribunal had "acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning" and that there was no prospect of success in the applicant's argument that the Tribunal had based its decision on information which was required to be put to the applicant under s 424A. His Honour noted that the Tribunal's reasoning, which referred to the contents of the protection visa application, did not use information from that document as a reason for affirming the delegate's decision, but explained an assessment of the visa application which identified its inadequacies in the absence of the applicant's attendance at a hearing. 13 The applicant made no submissions to his Honour, to show an arguable case. The Federal Magistrate concluded that there was no jurisdictional error in the decision of the Tribunal and dismissed the application. This was an interlocutory order under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) ('the Rules').

APPLICATION FOR LEAVE TO APPEAL 14 The application for leave to appeal was accompanied by an affidavit and a draft notice of appeal raising two grounds of appeal: '1. The Federal Magistrates Court ignored the appellant's claims that he was not given an opportunity to comment on information that the Refugee Review Tribunal relied upon to refuse his application for a protection visa. The Federal Magistrates Court failed to deal with this claim fairly. 2. The appellant was not given free legal advice during his application before the Federal Magistrates Court, although he was advised by the Court that a legal advisor would be arranged. Without the legal advice the appellant was not able to fully present his case.'

REASONS 15 The applicant did not attend the hearing before me. I determined that I would dispose of this matter on its merits rather than, in the exercise of my discretion, dismiss it by reason of the applicant's failure to attend. 16 I have considered and accept the first respondent's submissions which I have to a significant extent drawn upon in formulating these reasons. 17 The order of the Federal Magistrate dismissing the application pursuant to r 44.12 of the Federal Magistrates Court Rules was as I have said, an interlocutory order. 18 Section 24(1A) of the Federal Court of Australia Act 1976 provides that an appeal shall not be brought from an interlocutory judgment of the Federal Magistrates Court unless the Court or a Judge gives leave to appeal. 19 The test for whether leave to appeal is granted or refused is well established: Décor Corp v Dart Industries Inc (1991) 3 FCR 397 at [9]. 20 There is nothing on the face of the application for leave to appeal or the supporting affidavit which identifies an error of law in the decision of the Federal Magistrate. The draft notice of appeal filed by the applicant contains two purported grounds of appeal. The first asserts that the Federal Magistrate ignored his claim that the Tribunal failed to give him an opportunity to comment on information relied upon by the Tribunal. However, there is no proper basis for this complaint. The Federal Magistrate clearly considered the alleged breach of s 424A and was entitled to reject this ground for the reasons given: SZKFB v Minister for Immigration & Anor [2007] FMCA 738 at [14]. 21 The Tribunal's reasons confirm that it was unable to reach a decision favourable to the applicant because of the absence of information provided. Section 424A(1) does not arise in these circumstances because "information" for the purposes of s 424A "does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc": VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 cited with approval in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]. 22 Furthermore s 426A(1) of the Act clearly empowered the Tribunal to make a decision on the review because the two requirements in the section had been met namely, a valid invitation had been issued and the applicant for review did not appear at the appointed hearing: SZHSQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1295 at [55]. 23 The second ground complains that the applicant was not given free legal advice. The applicant was sent a referral for advice on 8 March 2007. However procedural fairness does not necessitate access to the panel advice scheme and the legal panel advice scheme cannot and should not prevent the timely disposal of cases before the Court: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 41 at [8] upheld on appeal in SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702. 24 The order of the Federal Magistrate was made in the exercise of his Honour's discretionary powers. For the application for leave to succeed the applicant must at least establish that there was some error made in the exercise of the discretion: House v King (1936) 55 CLR 499, at [504]-[505]. Such error might occur if the judge acts on a wrong principle; allows extraneous or irrelevant matters to guide or affect him or her; does not take into account some material consideration or if the decision is unjust or unreasonable upon the facts: House v King, op. cit., at [505]. It is not enough that an appellate Court would have exercised the discretion differently in the particular case: Applicant M171/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 220 per Gray J at [25]. 25 There has been no attempt by the applicant, through particulars, written submissions or otherwise, to outline any real case of error by the Federal Magistrate or any reviewable error by the Tribunal. The applicant's complaints appear to be no more than an expression of dissatisfaction with the ultimate conclusion drawn by the Federal Magistrate. In my opinion the conclusions of the learned Federal Magistrate were open for the reasons given and demonstrate no relevant error. 26 Accordingly, the applicant has not satisfied the cumulative tests approved by the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc (supra) to warrant a grant of leave to appeal. The decision is not attended with sufficient doubt to warrant its reconsideration on appeal and, in the light of the interlocutory history of the matter. No substantial injustice would result if leave were refused, supposing the decision to be wrong. 27 For these reasons, the grant of leave to appeal ought to be refused with costs, which I propose to fix. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 9 August 2007 No appearance by the Applicant