SZHHK v Minister for Immigration & Multicultural Affairs [2006] FCA 1471

FEDERAL COURT OF AUSTRALIA

SZHHK v Minister for Immigration & Multicultural Affairs [2006] FCA 1471 Migration Act 1958 (Cth) ss 65, 426A, 426A(1) , 426A(2), 441G

Song & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685 SZHHK & Anor v Minister for Immigration & Multicultural Affairs [2006] FMCA 767 VSAF of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA Trans 757 SZHHK AND SZHHL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL NSD 1011 OF 2006

NICHOLSON J

9 NOVEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1011 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHHK

SZHHL

Appellants

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: NICHOLSON J

DATE OF ORDER: 9 NOVEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellants 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 1011 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHHK

SZHHL

Appellants

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: NICHOLSON J

DATE: 9 NOVEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Smith (Smith FM) made on 4 May 2006: SZHHK & Anor v Minister for Immigration & Multicultural Affairs [2006] FMCA 767. In that decision his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 24 August 2005 and handed down on 13 September 2005. In that decision the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection (class XA) visa to the appellants pursuant to the provisions of the Migration Act 1958 (Cth) (the Act). 2 The appellants, a wife and husband, are citizens of India, both being born there in 1965. They entered Australia on 12 February 2005. On 24 March 2005 the female appellant lodged an application for a protection visa. Reference will therefore be made to 'the appellant' in these reasons. She claimed to have a well-founded fear of persecution for her human rights activities and political opinion. She also claimed to have been a women's rights activist in Gujarat who was persecuted by radical Hindu and Muslim fundamentalists. Her claims included being tortured and harassed. The application was refused by a delegate of the first respondent on 11 April 2005. 3 On 10 May 2005 the appellant lodged an application for review in the Tribunal. In the application she ticked a box to indicate that correspondence should be sent to her residential address. Although the application form stated 'tick one box only', the appellant also nominated an authorised recipient and had ticked a box to indicate she wished correspondence to be sent to the authorised recipient (her migration agent). 4 On 21 July 2005 the Tribunal wrote to the appellant's migration agent inviting the appellant to attend a hearing. On the scheduled date, 19 August 2005, the appellant did not attend and the Tribunal proceeded pursuant to s 426A of the Act. On 23 August 2005 the Tribunal further wrote to the appellant, at the appellant's authorised recipient's address, referring to the letter of 21 July 2005, the absence of a response to it and her non-appearance at the hearing. It advised that the Tribunal has decided to draft the decision based on the information that was currently before it. Additionally it stated that it would receive any further information and/or comment if the appellant chose to submit further evidence and submissions, a copy of the letter being sent to the appellant. On 24 August 2005, the Tribunal wrote to the agent advising it would hand down its decision on 13 September 2005. On 27 August 2005, the appellant wrote to the Tribunal stating she had not received the invitation to a hearing and requesting an opportunity to provide oral evidence. On 29 August 2005 the Tribunal responded that it was not prepared to offer another hearing but repeating its offer to consider any further claims she sent to it. 5 The Tribunal's decision was handed down on 13 September 2005. The Tribunal found there was insufficient detail for the appellant to satisfy the Tribunal of the elements for grant of the visa. It was not satisfied the appellant had a real chance of coming to adverse attention and did not have a well-founded fear of persecution for a Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967 (the Convention) reason in India. 6 The Tribunal noted in its decision the correspondence it previously had with the appellant. It also noted that it was aware the appellant's migration agent had his migration agent's registration subject to cancellation by order of 6 July 2005 but which was stayed on 26 July 2005. In relation to this information, the Tribunal stated: 'This immediately abovementioned order was also made prior to the date the authorised recipient was taken to have received the aforementioned letter of 21 July 2005 (see s 494C(4)(a) Migration Act).' 7 The appellant filed an amended application for review in the Federal Magistrates Court in October 2005 and an amended application on 7 April 2006. This raised grounds of jurisdictional error on the basis that the Tribunal failed to comply with s 65 of the Act and that it failed to consider material on the record. The appellant also asserted there was procedural unfairness as the Tribunal had failed to act under s 426A(2) of the Act to reschedule the hearing to another date. 8 Smith FM heard the application on 4 May 2006. The appellant gave sworn evidence. On 7 June 2006 he dismissed the amended application and ordered the appellant to pay the first respondent's costs. 9 His Honour found the Tribunal had addressed the claims and criteria as required. 10 In relation to the second ground, he held the Tribunal had power to proceed under s 426A(1) of the Act in this case without a rescheduled hearing. The appellant did not appear at the appointed hearing and had been duly invited under the Act. His Honour held that the effect of s 441G of the Act is that an invitation is deemed to have been sufficiently served if sent only to the authorised recipient. He referred to his Honour's reasoning in Song & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685. There was no error in not rescheduling as the Tribunal had considered and addressed the appellant's request. 11 On 25 May 2006 the appellant filed a notice of appeal in this Court. It raised two grounds. The first was that the Federal Magistrate erred in law by failing to recognise the appellant's argument that the Tribunal erred in law in making the conclusion that the application failed because of the insufficient detail provided by the appellant. She contends that the Tribunal failed to take into account her claim to be a women's rights activist in Gujarat and so becoming a target in the hands of the radical Hindu and Muslim fundamentalists. The appellant's case was supported by written submissions. 12 Smith FM pointed out in his reasons for decision that the Tribunal had identified the claims made in the protection visa application and 'referred to the patent inadequacies in the details of what was said'. The Tribunal had recited the information that the appellant provided about her claims in her protection visa application and then discussed the inadequacies and deficiencies in that material: '… based on the insufficient detail that she provided, the Tribunal is not satisfied the applicant invokes protection obligations in Australia. For instance the applicant did not provide much if any detail as to why she would be 'persecuted because of [her] human rights activities and political opinion'; what these human rights activities were; how she fought for the rights of 'poor women'; or why she feared she would be 'targeted by fundamentalist Hindu and Muslims.' She did not satisfactorily explain why her life was 'not safe' in India and how and when she may have been 'tortured by [religious fanatics].' 13 The ultimate conclusion that the Tribunal drew involved a consideration of all of the appellant's claims, and was one that was clearly open to it. Smith FM rightly concluded that there was no substance in the appellant's assertion that the substantive merits of the case had not been addressed. The appellant has failed to identify any error of his Honour's finding in this regard. 14 The second ground was that his Honour failed to consider her argument that by virtue of the Tribunal's reasoning that a decision-maker is not required to make the applicant's case for him or her, it had failed to give the appellant a second chance in terms of s 426A of the Act. 15 Smith FM discussed the Tribunal's s 426A(2) decision at length and gave detailed reasons for rejecting the appellant's contention that the Tribunal's discretion had miscarried. Paragraphs 36 and 37 of his Honour's reasons in particular address the issue. Examination of them does not disclose any error of law. 16 If the appellant's ground was intended to be addressed to the actual outcome of the exercise of the Tribunal's discretion, that is not a matter which this Court can examine in the absence of a proven error of law in the exercise of the discretion. 17 In the written submissions for the appellant reliance was placed upon remarks made by Kirby J on the hearing of a special leave application in VSAF of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA Trans 757 at lines 343 to 357. It is apparent that the person responsible for preparing the submissions has misunderstood the proposition there considered by his Honour. Those lines do not assist the appellant's case. 18 The appellant's complaint concerning the absence of a rescheduled hearing must be placed against the content of the letter sent to her by the Tribunal on 29 August 2005. That plainly gave her the opportunity to obtain a further hearing in the event further written or other material was submitted and was considered to be appropriate. The evidence is that in the exercise of the Tribunal's discretion they were treated with procedural fairness. 19 It follows that the appeal must be dismissed.