SZGMW v Minister for Immigration and Citizenship [2007] FCA 312

FEDERAL COURT OF AUSTRALIA

SZGMW v Minister for Immigration and Citizenship [2007] FCA 312 SZGMW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2179 OF 2006

CONTI J

7 MARCH 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2179 OF 2006

BETWEEN: SZGMW

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: CONTI J DATE OF ORDER: 28 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to 'Minster for Immigration and Citizenship'. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs of the proceedings. 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 2179 OF 2006

BETWEEN: SZGMW

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: CONTI J

DATE: 7 MArch 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the judgment of Federal Magistrate Smith delivered 18 October 2006, whereby his Honour dismissed an application for judicial review of the decision of the Refugee Review Tribunal ('the Tribunal') handed down 28 November 2003. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as then designated) to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of the People's Republic of China ('the PRC') who arrived in Australia on 18 October 2002. On 4 November 2002, a migration agent acting on behalf of the appellant submitted an application for a protection visa. By her application the appellant claimed to have a well-founded fear of persecution because she had practised the Falun Gong religion whilst living in the PRC. The appellant further claimed in a separate statement that she had resided near the place in China where Master Li Hongzhi gave his first demonstrations, and further that she attended his demonstrations and got to know other Falun Gong practitioners. The appellant complained that the government of the PRC has for some years suppressed the practice of Falun Gong and that she feared being put into prison for her beliefs if returned to China. 3 On 2 December 2002, the appellant submitted a form of Notification of Incorrect Answers, whereby she stated that when she arrived in Australia, she did not have a residential address and was confused. The delegate proceeded to reach a decision on the application as it had by then become valid as from 2 December 2002 following upon the provision of her current address. On 20 December 2002 a delegate of the Minister refused the appellant's application for a protection visa, and on 14 January 2003, the appellant applied to the Tribunal for a review of that decision. On the application form which she lodged for the purposes of that application, the appellant listed as her residential address her mailing address and the contact details of her authorised recipient Mr Belbruno. 4 On 11 September 2003 the Tribunal sent a hearing invitation letter to the appellant's authorised recipient Mr Belbruno, which outlined that it was unable to make a decision in her favour based alone on the information placed by her before the Tribunal. That letter was addressed to the appellant's postal address, that being the agent's postal address, as well as the residential address recorded in that application. The letter invited the appellant to attend a Tribunal hearing in Melbourne on 3 November 2003. The Tribunal did not receive a response from the appellant to the invitation. By a memorandum dated 30 October 2003, the Tribunal observed that the appellant's authorised recipient Mr Belbruno was contacted by telephone on behalf of the Tribunal. The Tribunal was informed by Mr Belbruno to the effect that he had been unable to communicate with the appellant and did not think she would attend the hearing. The appellant did not attend the hearing at the nominated date and time or at all. 5 As the appellant failed to attend the hearing, the Tribunal proceeded to deal with the appellant's application for review of the decision of the Minister's delegate pursuant to s 426A of the Migration Act 1958 (Cth) ('the Act'). The Tribunal outlined the matters upon which it sought to question the appellant, as well as indicating it would have wanted to discuss matters concerning independent country information with the appellant had she attended the Tribunal hearing. Without the opportunity to fully examine the purported claims of the appellant, the Tribunal indicated that it was not satisfied on the evidence placed before it that the appellant was a Falun Gong practitioner or that she would be in future, or that she had criticised the PRC government or that she had experienced or would experience the problems that she claims. 6 By an amended application filed in the Federal Magistrates Court on 13 September 2005, the appellant sought review of the decision of the Tribunal, claiming thereby that she did not attend the hearing before the Tribunal because she had been misled by her migration agent. The appellant asserted that she had been subjected to procedural unfairness giving rise to jurisdictional error, citing thereby O'Sullivan v Repatriation Commission (2003) 74 ALD 407 at [42]-[59]. 7 The written submissions of the appellant provided to the Federal Magistrates Court raised three issues as follows: (i) whether the appellant was deprived of the opportunity of a hearing before the Tribunal as a result of 'wrongful conduct' by her migration agent and in the circumstances whether there was jurisdictional error inherent in the decision of the Tribunal; (ii) whether s 422B of the Act applied adversely to the Tribunal's decision; and (iii) whether relief should be refused on the basis of the delay in filing the appellant's application for judicial review. 8 The Federal Magistrate found that the appellant had authorised her agent Mr Belbruno to receive correspondence on her behalf and otherwise to act on her behalf. However his Honour was unable to make any finding to the effect that the appellant's prior application to the Tribunal was invalid for want of authority, since the Tribunal received no communication which would have caused it to doubt the authorisation relevantly of her agent. 9 The Federal Magistrate further found that the Tribunal had invited the appellant to a hearing and moreover that the invitation had informed her that if she did not attend the Tribunal hearing, the Tribunal might make a decision on her case without further notice. His Honour further found that pursuant to s 441C(4) of the Act, the appellant and her agent were deemed to have received the invitation to the Tribunal hearing, and the Tribunal was duly authorised to proceed to consider and to resolve the appellant's application by reason of s 426A of the Act. 10 The matter of the appellant's delay in making application for judicial review was next considered by the Federal Magistrate, and his Honour found it unnecessary to investigate what he considered to be the contradictory and obscure testimony given by the appellant by way of purported explanation of the relevant delay, since his Honour was satisfied that the Tribunal's decision was unaffected by jurisdictional error. 11 In relation to the written submissions of the appellant made to the Federal Magistrate, his Honour considered that on the basis of the evidence placed before the Federal Magistrates Court, he was unable to make any finding to the effect that the migration agent was responsible for the appellant not having received actual notice of the hearing. The Federal Magistrate considered that the appellant tailored her evidence without regard to the truth of what had actually and relevantly occurred, and that it was quite possible that the appellant did not inform the migration agent of her contact details at least by the time of the hearing invitation. 12 Referring to recent Full Federal Court authority of relevance, Smith FM further found that the operation of s 426A(1) of the Act, when read with s 422B thereof, rendered irrelevant whether or not actual notice of a hearing invitation had been received or what were the purported reasons for not receiving any such notice. The contentions of the appellant's counsel were therefore rejected by his Honour.