FEDERAL COURT OF AUSTRALIA SZIGW v Minister for Immigration and Citizenship [2007] FCA 203 MIGRATION - appeal from decision of Federal Magistrate – application for protection visa – whether jurisdictional error – whether Tribunal failed in alleged statutory duty to negative appellant's asserted risk of prosecution by Chinese authorities. PRACTICE AND PROCEDURE – leave to amend notice of appeal – ground not raised before Federal Magistrate – no reasonable prospects of success. Migration Act 1958 (Cth), ss 425, 425A, 426(1) and 441A(4) Migration Regulations 1994 (Cth), Reg 4.35D Cubillo v Commonwealth (2001) 183 ALR 249 referred to Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451 referred to H v Minister for Immigration & Multicultural Affairs[2000] FCA 1348 cited Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 cited Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 cited Minister for Immigration & Multicultural Affairs v SGLB (2004) 207 ALR 12 cited NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346 cited NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 cited NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 cited Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 cited S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 cited SJSB v Minister for Immigration [2004] FCAFC 215 cited SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 cited SZDJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 214 cited VAAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 168 cited VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 cited WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277 cited W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407 cited Water Board v Moustakas (1988) 77 ALR 193 referred to SZIGW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD2393 OF 2006 GILMOUR J 26 FEBRUARY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIADISTRICT REGISTRY NSD2393 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIGW Appellant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP Respondent JUDGE: GILMOUR J DATE OF ORDER: 26 FEBRUARY 2007 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The name of the first respondent be amended to "Minister for Immigration and Citizenship". 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs fixed at $2500.00. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIADISTRICT REGISTRY NSD2393 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIGW Appellant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP Respondent JUDGE: GILMOUR J DATE: 26 FEBRUARY 2007 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate of 20 November 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 12 December 2005 handed down 5 January 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of the People's Republic of China who arrived in Australia on 17 June 2005. On 7 July 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. The Tribunal in its reasons for decision dated 12 December 2005 erroneously noted the date of lodgement of this application as 11 July 2005. Nothing turns on this error. In her application for a protection visa the appellant claimed to have well founded fear of persecution because of her adherence to Falun Gong. She claimed that in November 2002 she had attended Beijing with other Falun Gong practitioners to protest that the group was stopped by plainclothes policemen and the majority, including the appellant, were taken to the East-Tiananmen Police Sub-Station. The appellant claimed that printed material and banners were taken from the group and the group were tortured by policemen. The appellant claimed that she was released in February 2003 and bribed a government officer to obtain a passport and to help her apply for a visitor visa for Australia. 3 On 17 September 2005 a delegate of the first respondent refused the application for a protection visa and on 18 October 2005 the applicant applied to the Tribunal for a review of that decision. On 3 November 2005, the Tribunal wrote to the appellant pursuant to s 425 of the Migration Act 1958 ("the Act") advising that it was unable to make a favourable decision on the information before it and inviting her to give oral evidence and present arguments at a hearing. The letter was sent to the appellant at the address she nominated in her application for review to the Tribunal. It also complied with the applicable statutory requirements in ss 425, 425A, 426(1) and 441A(4) of the Act and regulation 4.35D of the Migration Regulations. It advised her that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. It invited the applicant to attend the Tribunal hearing to give oral evidence and present arguments in support of her claims, and that she could ask the Tribunal to obtain oral evidence from another person or persons. It informed her that the Tribunal hearing would take place at 9.00 am on Monday 12 December 2005 at Level 11, 83 Clarence Street, Sydney. The letter included a statement to the effect of s 426A that should the applicant fail to attend the Tribunal hearing that the Tribunal could make a decision on her case without further notice. This reflects the empowering provision in s 426A of the Act. The appellant in her subsequent application for judicial review before the Federal Magistrate acknowledged that this letter had been sent to the correct address. The appellant did not respond to the hearing invitation. She failed to attend the hearing at the allocated time and date. THE DECISION OF THE TRIBUNAL 4 As the appellant failed to attend a hearing the Tribunal proceeded pursuant to s. 426A(1) of the Act. The Tribunal found that almost no details were submitted about her experiences, in particular, no medical evidence of injuries nor any evidence from anyone associated with Falun Gong that she was a practitioner. The appellant did not state whether she was subjected to any further ill-treatment during the period of over 2 years after her release from detention. She did not claim to have participated in any Falun Gong activities since her arrival in Australia. As a result of the brevity and vagueness of the account of the appellant the Tribunal was unable to establish the relevant facts and could not be satisfied on the evidence before it that the appellant had a well-founded fear of persecution within the meaning of the Convention. The Tribunal affirmed the decision not to grant a protection visa. GROUNDS BEFORE THE FEDERAL MAGISTRATE 5 On 7 February 2006 the appellant filed an application for judicial review of the decision of the Tribunal. She also filed an affidavit which simply re-stated her bare claims to be a refugee and attached a copy of the relevant Tribunal decision. She relied upon two grounds, namely: (a) the decision involved an error law in that procedures that were required by the migration regulations to be observed in connection with the making of the decision were not observed, and (b) that the Tribunal failed to carry out its statutory duty as the Tribunal member, Ms Phillipa McIntosh, could not demonstrate that I do not face a risk of being prosecuted if I return to China. THE DECISION OF THE FEDERAL MAGISTRATE 6 The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellant, rejected both grounds of appeal. The appellant was invited to provide any details about the alleged error of law but the appellant was unable to do so. The Federal Magistrate asserted, in relation to the second ground of the application, that it is not for the Tribunal to establish that the appellant did not face a risk of being persecuted. The appellant was, similarly, invited to provide support for this ground but was unable to provide any detail that established an error of law. THE NOTICE OF APPEAL 7 The notice of appeal raises the following grounds: 1. The Tribunal failed to carry out its statutory duty as the Tribunal Member Ms Phillipa McIntosh could not demonstrate that I do not face a risk of being prosecuted if I return to China. 2. The Tribunal failed to observe the information contained in my application in connection with the making of the decision. The Applicant's Submissions 8 The applicant, who appeared in person assisted by an interpreter made no submissions other than, in effect, that the Court determine her appeal according to law. The First Respondent's Submissions 9 The first respondent correctly submitted that the first ground is but a repetition of one of the grounds argued before the learned Federal Magistrate, and that his Honour had correctly held that it is for an applicant to establish her case before the Tribunal. 10 As to the second ground in the notice of appeal the first respondent submits that this ground was not pleaded or argued before the learned Federal Magistrate, and that accordingly the appellant requires leave to raise this new ground on appeal. It is submitted that the applicant has not made out the necessary bases for leave. Reasons The First Ground of Appeal 11 In my opinion, the learned Federal Magistrate correctly held that it was for the applicant to establish her case before the Tribunal: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 596. She failed to do so. The applicant was invited by the learned Federal Magistrate to provide details in support of that ground but she did not do so. 12 It is no part of the duty of the decision-maker to make the applicant's case for him: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170. I do not accept that the Tribunal failed to carry out any duty, as contended for by the applicant, to demonstrate that the applicant did not face a risk of being persecuted if she was returned to China. No such duty exists as a matter of law. This ground discloses no error of law. The Second Ground of Appeal The Leave Question 13 It is well recognised that the Court may allow a ground of appeal even where that ground was not raised in the Court or Tribunal below but only where all of the relevant facts have been established beyond controversy or where the point is one of construction or a point of law: Water Board v Moustakas (1988) 77 ALR 193 at 196; Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451; Cubillo v Commonwealth (2001) 183 ALR 249. The first respondent conceded that the point could not have been met by any evidence had it been raised below but that the proposed ground was without merit and accordingly leave should be refused. It is necessary therefore to consider whether it is "expedient in the interests of justice" to allow the new ground to be argued and determined: H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348 at [6]. 14 This necessitates reference to a number of considerations namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process: VAAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 168 at 177 [26]. 15 As to the merits, in my opinion, the proposed second ground cannot succeed. I accept the submissions of the first respondent which were to the following effect. The appellant was given the opportunity to appear before the Tribunal and put such information before it as she wished. In circumstances where the appellant failed to attend her hearing, she cannot complain if her application was rejected because amongst other reasons, she failed to take up the opportunity: S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at [26]. See also NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004]FCA 346 at [10]-[12], upheld on appeal in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]; SZDJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 214. There is no substance to her claim that the Tribunal failed to consider the information in the appellant's case. The Tribunal was simply not satisfied as to the applicable criteria: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73; SJSB v Minister for Immigration [2004] FCAFC 215; and SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457. 16 Where the Tribunal was unable to be satisfied upon the material before it that the appellant's claims are genuine it has no duty to make further enquiries: Minister for Immigration & Multicultural Affairs v SGLB (2004) 207 ALR 12; VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277 at [21], [24]-[25]; W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407 at [74]-[78]; NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18]-[21]. 17 The appellant has not properly articulated any error in relation to the approach and judgment of the Federal Magistrate but makes a vague complaint about the Tribunal. More specifically, the appellant has not identified the particular information the Tribunal allegedly failed to observe when it made its decision or articulated how the alleged failure constituted a jurisdictional error. The Tribunal's reasons reveal a comprehensive consideration of the appellant's case and confirm that the Tribunal had before it the Department's file which included the appellant's protection visa application and the delegate's decision. In my opinion this ground has no prospects of success. 18 The appellant, when invited to do so, did not advance any explanation as to why she did not raise this ground before the Federal Magistrate. 19 In these circumstances I am not prepared to grant leave to the applicant to raise this ground of appeal. Conclusion 20 The reasons of the learned Federal Magistrate reveal no jurisdictional error. Accordingly, the appeal ought be dismissed, with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 26 February 2007 The Appellant appeared in person: Solicitor for the First Respondent: R White Date of Hearing: 26 February 2007 Date of Judgment: 26 February 2007