SZHGI v Minister for Immigration and Multicultural Affairs [2006] FCA 1356

FEDERAL COURT OF AUSTRALIA

SZHGI v Minister for Immigration and Multicultural Affairs [2006] FCA 1356

SZHGI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 754 OF 2006

BESANKO J

17 october 2006

ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 754 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHGI

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J DATE OF ORDER: 17 october 2006

WHERE MADE: ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 754 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHGI

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE: 17 OCTOBER 2006

PLACE: ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT 1 The issue in this appeal is whether a Federal Magistrate erred in not finding that the Refugee Review Tribunal ('the Tribunal') committed a jurisdictional error in the course of exercising the discretion it had under s 426A of the Migration Act 1958 (Cth) ('the Act'). That section is in the following terms:

'(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. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.' The appellant was invited to appear before the Tribunal but she did not do so. The Tribunal decided to make a decision on the review without taking any further action to allow or enable the appellant to appear before it. It was that decision which was challenged in the Federal Magistrates Court on the ground of jurisdictional error. 2 The appellant was a national of the People's Republic of China. She arrived in Australia as a tourist in November 2004. On 7 January 2005 the appellant applied for a protection visa. She claimed that since 1998 she had been a member of Falun Gong or a Falun Gong practitioner and that she feared persecution in China. The statement of the appellant which accompanied her application went into considerable detail about the attitude of the Chinese authorities towards Falun Gong, but there was little detail as to her own involvement in Falun Gong or its activities. 3 On 31 March 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the appellant's application for a protection visa. It is not necessary to go into the details of the decision other than to say that the delegate was not satisfied on the material that the appellant was 'a genuine, committed Falun Gong practitioner'. 4 The appellant applied to the Tribunal for a review of the decision. She was invited to attend a hearing of the Tribunal on 6 July 2005 and she completed and returned a form indicating that she would attend. She asked for an interpreter able to speak Mandarin to attend at the hearing. 5 The appellant did not attend the hearing on 6 July 2005. It seems that late on that day she sent a letter by facsimile transmission to the Tribunal in the following terms: 'Dear Tribunal Officer,