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[2013] FCA 1241
Federal Court of Australia
2013-11-22
Cowdroy J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 By notice of appeal filed on 21 August 2013, the appellant appeals from a decision of a judge of the Federal Circuit Court of Australia ('the FCCA') delivered on 1 August 2013 dismissing an application for judicial review of a decision of the second respondent ('the Tribunal') dated 8 November 2012.
BACKGROUND AND CLAIMS 2 The appellant is a citizen of the People's Republic of China ('China') who arrived in Australia on 22 February 2012. The appellant applied for a protection visa on 2 March 2012, on the basis that she had been detained twice in 2011 by police and beaten as a result of her complaints to government officials about the provision of medical treatment to her partner. A delegate of the first respondent made a decision to refuse the application for the visa on 7 June 2012.
THE TRIBUNAL'S DECISION 3 The appellant failed to attend the Tribunal hearing, despite being invited to do so and being advised that on the information currently before it, the Tribunal would be unable to make a favourable finding. 4 The Tribunal found the appellant's application was lacking in essential detail, and was not satisfied that she had suffered persecution in the past nor that she had a well-founded fear of persecution in the future should she return to China. As she did not attend the Tribunal hearing, the Tribunal noted that it was unable to question the veracity of her claims. The Tribunal accordingly affirmed the delegate's decision to refuse the grant of a visa to the appellant.
PROCEEDINGS IN THE FCCA 5 In the FCCA the appellant advanced the following grounds: 1. RRT has bias against [me]. 2. RRT breached procedural fairness. 6 The primary judge noted that neither of the grounds were particularised and that there was no assertion by the appellant that she was not notified of the hearing date before the Tribunal or that she was not aware that any failure to appear could result in a decision being made against her. His Honour found nothing in the material before him to suggest bias on the part of the Tribunal or a breach of the rules of procedural fairness. Accordingly, the appellant's application was dismissed.
THE APPEAL PROCEEDINGS 7 The notice of appeal to this Court advanced two grounds of appeal. They are as follows, without alteration: 1. RRT failed to give me procedural fairness when it made the decision without a hearing. 2. RRT failed to consider the alternative consequence if I was to be returned to my country. 8 The appellant appeared unrepresented at the hearing before this Court, but assisted by an interpreter. The appellant did not provide written or oral submissions in support of her appeal. 9 The first ground of appeal is essentially identical to the second ground of appeal considered by the primary judge. The appellant failed to appear at the Tribunal hearing despite being sent, in accordance with s 425 of the Migration Act 1958 (Cth) ('the Act'), notification by letter of the day, time and place of the hearing. In accordance with s 441A(4) of the Act, such letter was dispatched within three working days of the date of the document, by registered post, and to the last address of the appellant given to the Tribunal in connection with the review. A warning was provided on the notification that if she failed to attend the hearing, the Tribunal might make a decision without taking further action to allow or enable her to appear before it. 10 The primary judge found that there was no jurisdictional error in the Tribunal's exercise of its discretion under s 426A(1) of the Act to proceed with the hearing despite her absence. Such section provides that: (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 11 In view of the failure of the appellant to attend the hearing before the Tribunal, and the Tribunal's compliance with the relevant requirements of the Act, the Tribunal was entitled to make a decision without having the appellant appear before it: SZOZD v Minister for Immigration and Citizenship [2011] FCA 946 at [27]. No legal error has been demonstrated on the first ground of appeal and accordingly it must fail. 12 The second ground of appeal raises an issue which is not raised before the primary judge. In H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at [6] the Full Court stated the principles for the guidance of the exercise of discretion by a court in determining whether to permit a new ground to be raised on appeal. It is not necessary to set them out in full. 13 In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48], the Full Court observed: Where … there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should be generally refused. 14 The appellant in the present proceeding offered no explanation for the second ground of appeal not having been raised below. 15 In any event, the Tribunal considered the only alleged consequence raised by the appellant of her returning to China; namely that the government would seek retribution against her for the complaints she had made about the medical treatment provided to her partner. On the scant evidence before the Tribunal, and as noted above at [4], it was not satisfied that the appellant had suffered persecution in the past nor that she had a well-founded fear of persecution in the future should she return to China. Although the appellant's ground of appeal refers to an 'alternative' consequence, no submissions have been made to this Court to indicate what that alternative consequence of her return to China might be. 16 In these circumstances, the Court is satisfied that there is no merit in the second ground of appeal. Leave to raise this ground of appeal is refused. 17 It follows that the appeal must be dismissed. The first respondent seeks an order that its costs be paid by the appellant in the amount of $3,000. On the evidence made available to the Court, the Court considers that this sum is appropriate. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.
SZSJN
Minister for Immigration and Border Protection