SZMDH v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant, who in these written reasons will be referred to as SZMDH, is a citizen of the People's Republic of China. She entered Australia on 26 August 2007 on a class TU subclass 580 (student guardian) visa. She lodged an application for a protection visa on 5 October 2007. In that application, she gave as her address, 20 Paut Street, Auburn, New South Wales, 2144. 2 On 2 January 2008, a delegate of the Minister refused to grant the appellant a visa. Although the delegate accepted that a person genuinely practicing Falun Gong in China may be subject to persecution, the delegate of the Minister was not satisfied of the credibility of the appellant's claims. 3 The delegate said that the appellant's claims were "vague and lacking in substantiating detail." The delegate said the claim by the appellant, that after three weeks study with a senior Falun Gong member she had been able and allowed to set up her own branch, which attracted substantial membership, was lacking in plausibility. The delegate said the fact that she had been able to leave the country with a legal passport issued in her own name cast serious doubt on her claims of detention and torture in China. 4 On 17 January 2008, the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate's decision. 5 The letter enclosing the result of the decision and the reasons for the refusal was, on the material before this Court, sent by registered post number 38068137 to the appellant at 20 Paut Street, Auburn, New South Wales, 2144. There is no evidence that that letter was returned unclaimed. One can infer that the appellant received it, because she applied to the Tribunal for review of the delegate's decision. 6 The Tribunal sent an Invitation to Hearing letter to the appellant on 1 February 2008, at the address 20 Paut Street, Auburn, New South Wales, 2144. That was the address supplied by the appellant in her application for review. That letter was sent by registered post. 7 The appellant failed to appear at the hearing on 3 March 2008. The letter dated 1 February was returned "unclaimed" on 12 March 2008, some nine days after the date of the actual hearing. It does not appear that the appellant was sent another letter. If there was to be another letter sent it would have been, according to the material before me, sent to the 20 Paut Street address. 8 On 25 March 2008, the Tribunal handed down its decision affirming the delegate's decision. The Tribunal accepted that the appellant was a national of the People's Republic of China, but found that there was: … insufficient detailed information from the Applicant to satisfy [the Tribunal] that she is or has ever been a genuine Falun Gong adherent, or that she would ever be imputed to be one in any relevant way. 9 The Tribunal therefore found there was no risk of persecution and affirmed the delegate's decision. 10 The appellant then sought review of the Tribunal's decision in the Federal Magistrates Court. She relied upon an Amended Application asserting a failure on the part of the Tribunal to consider the appellant's practice of Falun Gong in Australia, and also a breach of s 424A of the Migration Act 1988 (Cth) (the Act). 11 In the Federal Magistrates Court, the matter began as a show-cause hearing for the Minister to show cause why relief should not be granted in relation to whether the Tribunal had discharged its obligation to invite the appellant to a hearing. 12 This was, no doubt, based on the fact that the invitation had not, in fact, reached the appellant. It was shown at the hearing in the Federal Magistrates Court that the letter had been sent to the address specified in the application. 13 The error, it appears, is that the appellant had given the wrong address: 20 Paut Street, instead of 20 Paul Street. 14 The "20 Paut Street" address had been given as the appellant's address in the application for a protection visa, in the application for review by the Refugee Review Tribunal, in the Application and Amended Application for judicial review to the Federal Magistrates Court and in the affidavit in support of that Application to the Federal Magistrates Court. 15 Federal Magistrate Driver held that because the letter had been sent to the address specified by the appellant, the Tribunal had complied with its obligations under the Act and was entitled to proceed in her absence. The Tribunal had complied with section 425 and 425A by inviting the applicant to a hearing at the address which the applicant had indicated as her address for service. There was no error in the Tribunal proceeding in the absence of the appellant. His Honour also rejected the other grounds advanced by the appellant concerning her claims to a protection visa. 16 The Federal Magistrate accepted the submission that where an applicant failed to attend a hearing, no obligation under s 424A arises, and the Tribunal's lack of satisfaction with the appellant's claims was not "information for the purposes of section 424A" and therefore there was no breach of the requirements of that section. 17 His Honour found that there was no jurisdictional error present in the decision of the Tribunal. 18 The two grounds on which the appellant relied in her appeal to this Court are: 1. Refugee Review Tribunal did not give me a chance to clarify my case in person. 2. I believe that my application was not decided reasonably by the Judge at the Federal Magistrates Court. 19 Having regard to the reasons of Driver FM, the second ground is not made out. The grounds advanced by the appellant were carefully considered by him, but rejected. 20 The first ground is a claim that there was some obligation on the Tribunal to undertake further inquiries towards ensuring that the appellant knew of the hearing and was given a chance to attend. However, the Federal Magistrate carefully considered the circumstance that the appellant did not attend at the hearing of the Tribunal. Paragraph 7 of Driver FM's reasons for judgment address the question of the fact that the invitation letter had, in fact, not reached the appellant. 21 The reason was that the letter was sent to the address which the appellant had indicated, incorrectly, was her address. The Federal Magistrate found in [5]: I accept … that the hearing invitation was sent to the applicant in accordance with the Migration Act. 22 The Federal Magistrate commented (at [7]) that: Even if the presiding member [of the Tribunal] was aware of the return of the hearing invitation, however, there was nothing further the Tribunal could have done to discharge its obligation to invite the applicant to a hearing. 23 His Honour concluded that the Tribunal had complied with ss 425 and 425A of the Act, and it therefore could proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries. 24 His Honour concluded: … the invitation complied with the statutory requirements contained in sections 425(1) and 425A of the Act and reg. 4.35D of the Regulations. As the applicant did not attend the scheduled hearing, the Tribunal was entitled to proceed as it did without taking any further action to enable the applicant to appear before it. 25 It is unfortunate that the letter was addressed as it was, with the consequence that the appellant did not attend at the Tribunal hearing and that the case was decided without the Tribunal having the opportunity and benefit of hearing from the appellant. 26 However, the reason for that failure lies squarely at the feet of the appellant and those who were acting for her. There was no fault in the Tribunal in complying with its obligations to advise her of the hearing and invite her to attend. The reason for non-attendance was that the invitation had been sent to the address that the applicant had indicated was the address to which such documents should be sent. 27 For all of the above reasons, the grounds of appeal to this Court are not made out. Federal Magistrate Driver was correct to conclude that there was no jurisdictional error present in the Tribunal's decision. The consequence is that the appeal to this Court has to be dismissed. 28 In those circumstances, and having heard the first respondent on costs, it is appropriate to order that the appeal be dismissed and that the appellant pay the first respondent's costs, which I fix in the amount of $2200. I certify that the preceding twenty-eight (28) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.